Monster Transmission & Performance™ Reseller Agreement
This Reseller Agreement (“Agreement”) is by and between you (the “Reseller”) and Monster Transmission & Performance™, Inc. (“Monster Transmission & Performance™”), a Florida Corporation, located at 13743 Linden Dr., Spring Hill, FL, 34609. This Agreement explains the basis upon which transactions between you, the Reseller, and Monster Transmission & Performance™ will take place and our responsibilities toward each other. The Effective Date of this Agreement shall be the date that Reseller completes Monster Transmission & Performance™' reseller signup process. By entering into this Agreement, in addition to transactions entered into by Reseller on its own behalf, Reseller also agrees to be bound by the terms of this agreement for transactions entered into on its behalf by anyone acting as its Agent. Reseller also agrees to be bound by the terms of this Agreement for transactions entered into by anyone who uses the account Reseller hereby establishes with Monster Transmission & Performance™, whether or not the transactions were in Reseller’s behalf. Reseller also agrees to be bound by any applicable agreements, policies, or procedures posted on the Monster Transmission & Performance™ web site, as well as any changes that may be made to them. To complete the reseller signup process, Reseller must read this entire Agreement and agree to be bound by all the terms and conditions. Reseller agrees that Monster Transmission & Performance™ may modify this Agreement in order to comply with applicable laws and the terms and conditions set forth by any governing factors. Reseller acknowledges that Monster Transmission & Performance™' acceptance of this Agreement and any application made by Reseller for services provided by Monster Transmission & Performance™ will take place at Monster Transmission & Performance™' offices located in Spring Hill, FL, USA. Whereas Monster Transmission & Performance™ is a fully-operational Performance Transmission Remanufacturer and Parts Distributor; and, whereas Reseller desires to purchase performance transmissions and other services or products that may be available (the “Services”) from Monster Transmission & Performance™ for purposes of selling such Services to its own customers; Therefore, the Manufacturer and Reseller agree as follows:
1. Service Details
Subject to the terms and conditions of this Agreement, Monster Transmission & Performance™ grants the Reseller a non-exclusive, non-transferable license to resell the Services worldwide.
2. Price
Subject to the terms and conditions of this Agreement, Reseller acknowledges that prices, discount rates and transaction fees are subject to change from time to time. Service Pricing Monster Transmission & Performance™ will provide its services to the Reseller according to the Monster Transmission & Performance™ Price Catalog (Catalog). Reseller may set its own prices. Fraudulent Transactions Reseller agrees to hold Monster Transmission & Performance™ harmless and to indemnify Monster Transmission & Performance™ for and against transactions processed by Monster Transmission & Performance™ on behalf of Reseller that are fraudulent in nature. These fraudulent transactions could result from, but are not limited to, misrepresentations in the product ordering process or from the use of stolen or misappropriated credit cards.
Charge Backs In the event of a credit card charge back, Reseller is not entitled to any refunds from Monster Transmission & Performance™. In the event that chargeback experience is high, as determined by Monster Transmission & Performance™, Monster Transmission & Performance™ reserves the right to void and revoke Reseller membership of the Reseller Program.
3. Refund Policy
Reseller and Reseller’s customers are not entitled to any refunds of products purchased.
4. Term
This Agreement is in effect for one (1) year from the Effective Date of this contract and will automatically renew for one (1) year increments. Reseller agrees that Monster Transmission & Performance™ may modify this agreement from time to time. Reseller agrees to be bound by any changes Monster Transmission & Performance™ may reasonably make to this agreement when such changes become effective. Should Reseller elect to cancel Reseller’s agreement with Monster Transmission & Performance™, Reseller will not receive a refund for any fees Reseller may have paid to Monster Transmission & Performance™. Upon termination, all customers will default to Monster Transmission & Performance™.
5. Termination
Either party may terminate this Agreement for a material breach of contract by the other party that has not been cured within 10 days. Either party must notify the other of such material breach in writing. Or, either party may terminate this Agreement with 30 days written notice. Upon termination, all customers will default to Monster Transmission & Performance™.
6. Restriction of Service; Right of Refusal
Reseller agrees that Monster Transmission & Performance™, in its sole discretion and without liability to Reseller, may terminate this Agreement for if Reseller is using found to be using Monster Transmission & Performance™ Services in association with unsolicited commercial email (“spam”) or morally objectionable activities. Morally objectionable activities will include, but not be limited to: activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties; activities prohibited by the laws of the United States and/or foreign territories in which Reseller conducts business; activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; and activities designed to harm minors in any way. In the event Monster Transmission & Performance™ terminates this Agreement for spam or morally objectionable activities, no refund will be issued.
7. Intellectual Property
Reseller agrees that Monster Transmission & Performance™ and its parent and affiliate companies own all proprietary rights, including but not limited to copyrights, patents and trade secrets, trademarks, and service marks and that this Agreement does not transfer ownership of any of these rights. Monster Transmission & Performance™ expressly reserves its rights in and to all such content and materials. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to Reseller or conferred upon Reseller by this Agreement or otherwise. Reseller will not use any of Monster Transmission & Performance™' trademarks or other intellectual property unless specifically authorized by Monster Transmission & Performance™, nor will Reseller register any trademark that is substantially similar to one owned by Monster Transmission & Performance™. Reseller agrees not to use Monster Transmission & Performance™' trademarks, including its web site URLs, as keyword terms in any online advertising agreements.
8. Export Restrictions
Title to products and services herein being purchased is retained by Monster Transmission & Performance™ until goods are paid for by Reseller and at the time title passes to Reseller. Reseller agrees that Reseller is prohibited by law from exporting to certain countries, and shall comply with all export regulations if shipping to another country, including licensing requirements.
9. Sub Resellers
Reseller is responsible for the acts and omissions of Reseller’s sub resellers. If Reseller provides training and/or technical support to Reseller’s sub resellers, it must be reasonable. Monster Transmission & Performance™ is not responsible for providing technical support to Reseller’s sub resellers or Reseller’s customers.
10. Customer Agreements
Reseller is required to ensure that Reseller’s customers agree to comply with the standard agreement for each product or service they purchase from Reseller.
11. Customer Notices
If there are any recalls or retrofits of products, Reseller will assist Monster Transmission & Performance™, Inc. in notifying Reseller’s customers.
12. Unauthorized Use
Upon the discovery of any unauthorized use or copying of Monster Transmission & Performance™ products or services, Reseller will immediately notify Monster Transmission & Performance™. If Reseller is at fault in any way, Reseller may be held responsible for the cost of the legal proceedings.
13. Terms of Confidentiality
Reseller agrees that Reseller will exercise a reasonable level of care and discretion to prevent and restrain the use, disclosure, or reproduction of Monster Transmission & Performance™' Confidential Information. “Confidential Information” means nonpublic information that Monster Transmission & Performance™ designates as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential by Reseller. Confidential Information includes, but is not limited to, information in tangible or intangible form relating to and/or including released or unreleased products, the marketing or promotion of any of Monster Transmission & Performance™' products, Monster Transmission & Performance™' business policies or practices, and information received from others that Monster Transmission & Performance™ is obligated to treat as confidential. Confidential Information does not include any information, however designated, that: is or subsequently becomes publicly available without Reseller’s breach of any obligation under this Agreement; became known to Reseller prior to disclosure under this Agreement; became known to Reseller from a source other than Monster Transmission & Performance™ other than by the breach of an obligation of confidentiality owed to Reseller; or is independently developed by Reseller. This obligation shall last three (3) years after the termination of your reseller account with Monster Transmission & Performance™.
14. Conflicts of Interest
Reseller agrees that Reseller will disclose to Monster Transmission & Performance™ any conflicts of interest or potential conflicts of interest Reseller may have in a timely manner.
15. Ethical Standards
Bribing or offering gifts in exchange for purchases by customers is prohibited and will result in termination of your account.
16. Privacy
Reseller agrees to be bound by the Privacy Policy of Monster Transmission & Performance™ in its dealings with customers and others and to post such Privacy Policy on Reseller’s home page. Failure to comply with such Privacy policy will be deemed a material breach of this Agreement.
17. Branding
Monster Transmission & Performance™ authorizes Reseller to co-brand the Services by using Monster Transmission & Performance™' name and logo along with Reseller’s name and logo. However, Reseller may not use the SEMA Accredited logo on Reseller’s marketing materials or web site.
18. Technical Support
Monster Transmission & Performance™ will provide technical support to reseller. At reseller’s option, Monster Transmission & Performance™ will provide technical support to its customers through the email and/or by telephone.
19. Notices
Reseller agrees that all notices (except for notices concerning breach of this Agreement) from Monster Transmission & Performance™ to Reseller may be posted on our web site and will be deemed delivered within fifteen (15) days after posting. Notices concerning breach will be sent either to the email address Reseller has on file with Monster Transmission & Performance™ or mailed first class postage to the postal address Reseller has on file with Monster Transmission & Performance™. In both cases, delivery shall be deemed to have been made five (5) days after the date sent. Notices from Reseller to Monster Transmission & Performance™ shall be made either by email, sent to the address we provide on our web site, or first class mail to our address at: Monster Transmission & Performance™ ATTN: Reseller Department 13743 Linden Dr. Spring Hill, FL, 34609 U.S.A. Delivery shall be deemed to have been made by Reseller to Monster Transmission & Performance™ five (5) days after the date sent.
20. No Solicitation
Reseller agrees that it will NOT approach Monster Transmission & Performance™' employees with proposals to hire them as its own employees or contractors. If Reseller were to hire any of Monster Transmission & Performance™' employees, Reseller agrees to pay Monster Transmission & Performance™ for each employee hired the greater amount of five years salary for that employee as Reseller is to pay such employee, or $500,000.
21. Limited Liability
Monster Transmission & Performance™ shall not be liable under any circumstances for any special, consequential, incidental or exemplary damages arising out of or in any way connected with this Agreement or the Reseller Program Services, or other services and products Reseller may choose, including but not limited to: damages for lost profits, loss of use, lost data, loss of privacy, damages to third parties. This limited liability clause shall apply even if Monster Transmission & Performance™ has been notified of the possibility of any claims. In no event shall Monster Transmission & Performance™' maximum liability exceed the total amount paid by Reseller for the service or product. Monster Transmission & Performance™' liability is limited to the extent permitted by law in states that do not allow the exclusion or limitation of liability for consequential or incidental damages.
22. Indemnification
Reseller agrees to indemnify, defend by counsel reasonably acceptable to Monster Transmission & Performance™, protect and hold Monster Transmission & Performance™ harmless from and against any and all claims, liabilities, losses, costs, damages, expense, including consultants’ and attorneys’ fees and court costs, demands, causes of action, or judgments directly or indirectly arising out of or related to Reseller’s use of or reselling of any of the Monster Transmission & Performance™ services and products.
23. Representation and Warranties
Reseller warrants that all information provided by Reseller as part of the registration process is complete and accurate. Reseller also warrants that each sale Reseller makes is being done so in good faith and that Reseller has no knowledge of it infringing upon or conflicting with the legal rights of a third party or a third party’s registration, trademark or trade name. Reseller agrees that Monster Transmission & Performance™ makes no representations or warranties or any kind in connection with this agreement and specifically makes no guaranty to Reseller against the possibility of objection to, or challenge of, the performance or use of any product Reseller purchases from Monster Transmission & Performance™. Monster Transmission & Performance™ expressly reserves the right to deny, cancel or transfer any purchase that it deems necessary, in its discretion, to protect the integrity and stability of the product, to comply with any applicable laws, government rules or requirements, requests of law enforcement, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of Monster Transmission & Performance™, as well as its affiliates, subsidiaries, officers, directors and employees. Monster Transmission & Performance™ also reserves the right to freeze a purchase during resolution of a dispute.
24. Disclaimer of Warranties
Monster Transmission & Performance™ provides the Services “as is” and without warranty or guarantee of any kind, either express or implied, including but not limited to, the implied warranties or conditions of merchantability or fitness for a particular purpose. In no event shall Monster Transmission & Performance™ be liable for any loss of profits, loss of business, loss of data, unsecured transactions, interruption of business, or for indirect, special, or consequential damages of any kind, even if Monster Transmission & Performance™ has been advised of the possibility of such damages. In no way event shall Monster Transmission & Performance™' liability exceed the initial license fee for the Service paid by Reseller.
25. Modification
This Agreement and its Attachments are subject to change. Reseller will be notified of such changes as they occur via the email contact supplied during the reseller signup process.
26. Assignment
Reseller may not assign its rights or duties under this Agreement to another without the express written consent of Monster Transmission & Performance™, which will not be unreasonably withheld. Monster Transmission & Performance™ may assign its rights and obligations under this Agreement without notice so long as the Service continues to operate as outlined in this Agreement.
27. Severability
The terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the Agreement will be interpreted in accordance with applicable law as closely as possible in line with the original intention of both parties of the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.
28. Venue; Waiver of Trial by Jury
This Agreement shall be deemed entered in to in the State of Florida. Except for disputes concerning the use of a product purchased from the manufacturer, the laws and judicial decisions of Hernando County, Florida shall be used to determine the validity, construction, interpretation and legal effect of this Agreement. Any action relating to or arising out of this Agreement shall be brought in the courts of Hernando County, Florida. For the adjudication of disputes concerning the use of any product purchased with Manufacturer, Reseller aggress to submit for jurisdiction and venue to the U.S. District Court for the district of Florida located in Tallahassee, Florida. Reseller agrees to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this Agreement.
29. Entirety
This Agreement constitutes the entire understanding and contract between the parties and supersedes any an all prior and contemporaneous, oral, or written representations, communication, understandings, and agreements between the parties with respect to the subject matter herein. Nothing in this Agreement, express or implied, shall be deemed to confer any rights or remedies upon, nor obligate any of the parities hereto, to any person or entity other than such parties, unless so stated to the contrary. Each of the parties, to this Agreement represents and warrants that it has full power to enter into this Agreement and hasn’t assigned, encumbered, or in any manner transferred all or any portion of the claims covered by this Agreement.
Revised: 9/12/2004 Copyright © 2003 - 2006 Monster Transmission & Performance™, Inc. All Rights Reserved.