|
Diamond Distributor Agreement This Distributor Agreement (this “Agreement”) contains all of the terms and conditions between DreamTime.net, Inc, (“DreamTime”) and the individual or organization (the "Distributor") participating in the Diamond Distributor Program (the "Program"). In this Agreement, "we" and "us" means DreamTime, and "You" means the Distributor participating in the Program. "diamondcard.us Web Site" or "Our Site" means the Web site located at http://www.diamondcard.us/, and "Your Site" means the Web site which you establish through the Program. BY COMPLETING THE REGISTRATION PROCESS AND AGREEING TO THE TERMS AND CONDITIONS OF THIS DISTRIBUTOR AGREEMENT YOU AGREE TO BE BOUND BY THESE TERMS AS WELL AS THE OTHER POLICIES OF DREAMTIME, INCLUDING THE TERMS AND CONDITIONS OF THE DIAMONDCARD.US SITE AND THE PRIVACY POLICY. IF YOU DO NOT WISH TO BE BOUND BY THE TERMS OF THIS AGREEMENT, PLEASE EXIT THE DIAMONDCARD REGISTRATION PROCESS NOW. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THIS SITE, OR ANY PRODUCTS, SERVICES, CONTENT, OR OTHER INFORMATION AVAILABLE ON OR THROUGH THIS SITE, IS TO STOP USING THE DIAMONDCARD SERVICES AND/OR THOSE PARTICULAR PRODUCTS OR SERVICES. 1. Compliance with Agreement: It is within DreamTime’s sole discretion as to whether you have violated the terms of this Agreement. DreamTime reserves the right to refuse anyone to become a distributor. DreamTime may also, in its sole discretion, prohibit any end user from using the Services. You acknowledge and agree that customers who utilize your diamondcard.us site must agree to Dreamtime’s then standard terms and conditions for use of the Services. DreamTime will fully cooperate with law enforcement authorities in investigating suspected lawbreakers, and reserves the right to report to such authorities any suspect activity it becomes aware of. You agree to report any violations of this Agreement by other persons to DreamTime to abuse@diamondcard.us 2. Payments of Commissions by DreamTime: Commissions shall be paid twice per month, provided the commission during the pay period is at least twenty five dollars ($25.00). If the balance owed is less than twenty-five dollars ($25.00), the commission will be paid the following the following pay period when the total commissions earned are equal to or exceed $25.00. The commission report is run at 12:05 AM the morning after the last day of the current pay period. A check processing fee of $2.00 will be charged on each disbursement. Direct sales commissions will be paid for a duration of two years. 3. Calculation of Commissions: All sales commissions are calculated using the MLM-ONE! system. This system tracks all sales and distributor signup's made through distributor sites at http://www.diamondcard.us. All commissions are calculated pursuant to the Diamond Distributor Compensation Plan 4. Performance Statistics: DreamTime provides all distributors statistics on their current commissions as well as their commission history. DreamTime uses its commercially reasonable efforts to update this in real-time, and to make such information available on-line 24 hours a day, seven days a week (not including periods of maintenance) through the Distributor’s Virtual Office, which you can access at http://www.diamondcard.us/login. DreamTime tracks all sales, distributor signup's and calculates commissions using its MLM-ONE! software system. Once a sale is made through a distributor diamondcard.us web site, the reporting of the sale is reflected in the Distributor Commission Report. 5. Effect of Customer Returns on Commissions: If a consumer disputes his or her credit card charge, the commission amount based on the disputed charge or sale will be debited from the Distributor’s account. If a monetary amount is returned to the consumer, the commission on the returned sale will be debited from the Distributor’s account. 6. International Affiliates: Our services can be purchased globally. International affiliates are ones that reside outside the USA. DreamTime can accommodate reasonable international distributor requirements for sending commission checks. DreamTime can process commission checks through Money Gram, Western Union, Bank wire, US mail, Pay-Pal or similar method. The charge for this service varies depending on location of the Distributor, amount of the commission and disbursement method. The minimum commission amount needed for DreamTime to process an international commission check is US $50.00. 7. Distributor Responsibilities: You understand and agree that violation of any of the following conditions shall result in the forfeiture of any accrued commissions and immediate termination of the your account:
You shall not use Unsolicited Commercial E-mail (“UCE”), referred to as “Spam”, or any form of unsolicited e-mail to promote any of the Services associated with DreamTime. Spam means unsolicited e-mail sent to persons with whom you have no relationship and/or who have not requested your information. b) Inappropriate Content: You may not link to DreamTime from any website which contains content that is slanderous, libelous, threatening, pornographic, obscene and or infringing that could give rise to any civil or criminal liability. c) Reference to DreamTime Competitors: You may not reference or place links to competitors of the Diamond service (such as other Affiliate or Distributor Programs) on your Diamond site. You are granted a limited, non-exclusive license to use selected images, logos, trade names, trademarks, copyrighted material and similar identifying material relating to us (“collectively, the "Licensed Materials") as provided by DreamTime solely to advertise or market our Services. All of the material on the Diamond Site, including text, graphics, and other illustrations (“Content”) is the property of DreamTime. You may not sell, reproduce, distribute, copy, duplicate, resell, modify, display, prepare derivative works based on, repost, exploit for any commercial purpose, or otherwise use any of the Content in any way for any public or commercial purpose without prior written consent of DreamTime. You may not use the Content on any other web site or in a networked computer environment for any purpose. If you violate any of these terms, your permission to use the Content will automatically terminate, you must immediately destroy any copies you have made of the Content, and we may end your authorization to participate in the Program. DreamTime retains all rights to its Licensed Materials (and any intellectual property embodied by the Licensed Materials) at all times. Any other use is strictly prohibited, including use of the Licensed Materials in any manner that is disparaging or that otherwise portrays DreamTime in a negative light. Determination of what is and is not acceptable use is at the sole discretion of DreamTime. You may not alter, modify or change the Licensed Materials in any way. We, in our sole discretion, may revoke your license at any time, with or without cause and in our sole discretion, by giving you notice. The license granted herein should not be construed as granting any ownership rights in the Licensed Materials to the respective licensee thereof, all of which rights will remain the property of DreamTime. Upon the effective date of the expiration or termination of this Agreement, the license granted herein will expire, You agree to cease using such Licensed Materials, and you agree to cease using all such Licensed Materials. You may not resell any portion of the Service to any other party except to end users of such Services.”) 9. Publicity: You shall not create, publish, distribute, or permit any written material that makes reference to DreamTime without first submitting such material to DreamTime and receiving its prior written consent. 10. Term of the Agreement: The Term of this Agreement shall become effective upon acceptance of the Distributor Application submitted by You through the Registration Process. Either You or DreamTime may terminate this Agreement at any time, for any reason or no reason, by giving the other party written notice of termination. You are only eligible to earn commissions on sales occurring during the term of this Agreement, and commissions earned through the date of termination will remain payable excluding amounts due to credit card fraud, chargebacks, refunds and bad debts and credits for canceled services. DreamTime may withhold your final payment, or a portion thereof, for a reasonable time to ensure that the correct amount is paid. 11. Modification of Agreement: DreamTime may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new Agreement on this Site. You will be notified of any such change through an e-mail before a change is made. Modifications may include, but are not limited to, changes in the scope of available commissions, payment procedures and terms and conditions of the Distributor Program. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT AS PROVIDED IN PARAGRAPH 10. IN THE EVENT YOU OBJECT TO A CHANGE, THE CHANGES THAT WERE ANNOUNCED WILL NEVERTHELESS BECOME EFFECTIVE UNLESS WE AGREE, IN WRITING, TO THE CONTRARY. YOUR CONTINUED PARTICIPATION IN THE DISTRIBUTOR PROGRAM BY FAILURE TO TERMINATE THIS AGREEMENT FOLLOWING THE POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE DREAMTIME SITE WILL CONSTITUTE BINDING ACCEPTANCE OF SUCH CHANGE OR NEW AGREEMENT. 12. Relationship of Parties: You and DreamTime are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. You have no authority to make or accept any offers or representations on DreamTime’s behalf. 13. Disclaimers: WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR WITH RESPECT TO THE SERVICES SOLD THROUGH THE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY OR NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING OR TRADE USAGE). IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE OR THE PROVISION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, AND IT WILL NOT BE LIABLE IN ANY WAY FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. 14. Limitation of Liability: We will not be liable for indirect, special or consequential damages, or any loss of revenue, profits or data, arising out of or relating to this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to you under this Agreement, or $50, whichever is greater. 15. Indemnification: You hereby agree to indemnify and hold harmless DreamTime, its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, expenses (including reasonable attorneys' fees, which will include an allocable portion of the expense of such party's corporate legal department), and costs (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are related to: (i) any claim that your use of the Licensed Materials infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you or on your behalf herein; (iii) the development, operation, maintenance and content of Your Site, and products and services offered from Your Site, or any claim related to Your Site, including, without limitation, content therein not attributable to us; or (iv) any representation or warranty made by You on Your Site or otherwise relating to the Services that exceeds the representations and warranties made by DreamTime regarding such Services. 16. Independent Investigation: YOU ACKNOWLEDGE BY PRESSING THE "I ACCEPT" BUTTON BELOW THAT (A) YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS, (B) YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR SITE, (C) YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT AND (D) YOU ACKNOWLEDGE THAT DREAMTIME HAS MADE NO REPRESENTATION REGARDING THE POSSIBILITY OR AMOUNT OF REFERRAL FEES THAT MAY BE EARNED PURSUANT TO THE PROGRAM. 17. Governing Law: This Agreement will be governed by the internal laws of the State of California, without regard to the choice of law provisions thereof. Any dispute between the parties arising under this Agreement will be resolved by binding arbitration by an arbitrator to be conducted in Los Angeles, California, in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitrator shall have the discretion to order that the cost of arbitration, including the arbitrator's fees, or other costs, and reasonable attorneys' fees, shall be borne by the losing party. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction. 18. Attorneys' Fees: If either of the parties hereto (or any successor thereto) resorts to legal action in order to enforce, defend or interpret any of the terms or the provisions of this Agreement, the prevailing party will be entitled to receive, in addition to such other remedies as will be awarded to it in such legal action, reimbursement from the non-prevailing party for all reasonable attorneys' fees and all other costs incurred in commencing, maintaining or defending such action (which will include an allocable portion of the expense of such party's corporate legal department). In addition, the prevailing party will be entitled to recover from the non-prevailing party post-judgment attorneys' fees incurred in enforcing a judgment against the non-prevailing party. 19. Entire Agreement: This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications. 20. Account deactivation: A user/reseller account will be deactivated and all credit/commissions forfeited if not used or accessed within a two year period. 21. Miscellaneous: All notices under this Agreement shall be in writing and shall be deemed to have been duly given when receipt is electronically confirmed, if transmitted by facsimile or e-mail or upon receipt, if sent by certified or registered mail, return receipt requested. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
|