No additional Terms, Agreements or other conditions may apply to any reselling partner.
This Bamboozle Reseller Program Agreement (this “Agreement”) is between Bamboozle Web Services, Inc. (“we” or “Bamboozle”) and the Reseller who signs below (“you” or “Reseller”). Each of Bamboozle and the Reseller may be referred to as a “Party” and collectively as the “Parties.” The following terms and conditions govern your participation in the Bamboozle Reseller Program (the “Reseller Program”).
The following terms automatically apply when you are considered a “Reseller”. This includes but is not limited that you are marked a reseller in our system and receive discounts (based on our Resell Value Classification), resell standard services without discount or receive discounts classified as reseller discounts directly. With the classification of “Reseller” and receiving a discount you automatically agree to the terms and conditions below.
BACKGROUND
Bamboozle provides managed hosting and cloud services to customers. Reseller wishes to resell Hosting Services that Bamboozle provides to Reseller to third parties pursuant to the terms and conditions of this Agreement and the Reseller Program. The Parties desire to enter into a resell relationship under which Reseller shall resell Bamboozle Hosting Services to End Users in exchange for a Discount.
NOW, THEREFORE, for good and valuable consideration, Bamboozle and Reseller agree as follows:
- DEFINITIONS.
“Confidential Information” means all proprietary information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential. Information that is developed by one of us on our own, without use of or reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other Party.
“Discount” means a reduction from the prevailing list price of the applicable Hosting Services.
“End User” means any customer to whom you are reselling Hosting Services pursuant to this Agreement, that does not use the Hosting Services at the time you register the customer and is accepted by Bamboozle in its sole discretion as described in the Reseller Program.
“Hosting Services” means Bamboozle’s commercially available services as described in the Reseller Program.
“Qualifying Resale” means a new contract for the resale of a Hosting Service to one or more End Users.
“Reseller Program” means the program under which the Reseller is authorized to resell Hosting Services to an End User.
“Reseller Portal” means the website utilized to register End Users and provide information regarding the Reseller Program, currently found at https://portal.bamboozle.me.
2. MARKETING & LICENSE.
2.1 Any marketing by Reseller of Hosting Services, utilization of Bamboozle information and/ or materials, or use of either party’s names, logos, trademarks, trade names, domain names, URLs and other identifying indicia, (“Marks”) shall be undertaken in accordance with this Agreement and the Reseller Program.
2.2 Subject to this Agreement and its terms, Bamboozle hereby grants to Reseller a royalty-free, non-exclusive, non-transferable and revocable license for the term of this Agreement to use the Bamboozle Marks, and associated materials, language or code (collectively, “Marketing Materials”) for the sole purpose of marketing and reselling the Hosting Services to potential End Users. Bamboozle may revoke this license at any time by giving Reseller written notice (including via email).
2.3 We may, at our option, market your products or services in compliance with your guidelines and instructions communicated to us from time to time and you agree to grant us a license to do so accordingly.
3. DISCOUNT.
3.1 Bamboozle will provide a Discount for Qualifying Resales, upgrades and renewals. Such Discount will be applied against the recurring fees invoiced during the preceding month, net of any credits, and on any non-recurring amounts (such as one-time fees, set up fees or bandwidth overages) or any sales taxes or like charges of governmental entities. Discounts are issued as discount on your invoice automatically based on your Reseller Status.
4. ADDITIONAL RESELLER RESPONSIBILITIES.
4.1 Hosting Services Agreement. You agree that Qualifying Resales are also subject to the terms and conditions of the cloud or hosting services agreement(s) (“Hosting Terms”) you have in place with Bamboozle, including any Hosting Terms you agree after you sign this Agreement. If you do not have a hosting agreement in place with Bamboozle, any Qualifying Resales shall be subject to the General Terms and Conditions found at: www.bamboozle.com/terms, for dedicated Hosting Services and the applicable Hosting Service product terms as of the date of your acceptance into the Reseller Program; and the terms and conditions found at: https://bamboozle.at/hosting-agreement for Cloud Hosting Services, until such time as you have entered into the Hosting Terms.
4.2 Support. You agree that you will be the first line of support for your End Users and will offer to provide live support to your End Users 24×7, year round, including basic trouble-shooting for the Hosting Services; provided that an End User may elect in writing 8×5 support instead. If your End Users need advanced support, Bamboozle will, at your request, participate in three-party communications to assist you. Bamboozle does not expect to communicate directly with your End Users regarding support questions, and Reseller agrees not to refer your End Users to Bamboozle for direct support without Bamboozle’s prior written consent.
4.3 No Third Party Beneficiaries. Your End Users are not parties to or beneficiaries of this Agreement between us.
4.4 Written Agreement. You must require your End Users to enter into a binding agreement that includes the following: (i) an acknowledgement that such End User will abide by Bamboozle’s Acceptable Use Policy as of the date of your signature of this below and shall have no rights against Bamboozle in connection with the Hosting Services that you are reselling and, (ii) if you are reselling Hosting Services that include licensed software, those license terms that appear at: http://www.Bamboozle.com/aboutus/legal/ and (iii) a prohibition against high risk use of the hosting services (e.g., you may not use, or permit any other person to use, the hosting services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or medical life support devices).
4.5 Export Matters. Reseller may not resell Hosting Services to a country specified as a prohibited country under applicable law
4.6 Liability for Fees and Use of Services, Breach of Agreement. You acknowledge the following: (i) that you are liable under the Hosting Terms for the fees due for Services (as defined in your Hosting Terms) regardless of whether your End User pays amounts due in connection with their account with you; (ii) that you are responsible for use of the Services by your End Users in violation of the AUP or other portion of this Agreement to the same extent as if you were using the Services yourself.
4.7 Transfers of End Users’ Data. In the event your End User chooses to sign an agreement for Hosting Services directly with Bamboozle, you agree not to prevent such End User from transferring their data or DNS records to Bamboozle, or from using their DNS records on the Bamboozle network.
4.8 Claims by Your End Users. If Bamboozle, its affiliates, or any of their respective employees, agents, or suppliers is faced with a legal claim by your End Users (on any theory), Reseller will pay the cost of defending the claim (including reasonable legal fees) and any damages awards, fine, or other amounts reasonably incurred by Bamboozle as a result of the claim. Conduct of such indemnification shall be in accordance with Section 5.3 (Notice and Defense Requirements) hereof.
5. INDEMNIFICATION.
5.1 Indemnification related to use of Marketing Materials. If either Party (the “Indemnified Party”) or its affiliates, or any of their respective employees, agents, or owners, are faced with a legal claim by a third party arising out of its use of the other Party’s (the “Indemnifying Party”) Marketing Materials as permitted by this Agreement, or arising out of the Indemnifying Party’s use of the Indemnified Party’s Marketing Materials other than as permitted in this Agreement, the Indemnifying Party will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is reasonably incurred by the Indemnifying Party as a result of the claim.
5.2 Indemnification for Breach. If Bamboozle or its affiliates, or any of their respective employees, agents, or owners, is faced with a legal claim by a third party arising out of your failure to comply with Section 4.5 (Export Matters) or Section 4.6 (Liability for Fees and Use of Services, Breach of Agreement) you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is reasonably incurred by Bamboozle as a result of the claim.
5.3 Notice and Defense Requirements. The Indemnifying Party will have no obligation with respect to any claim under this Section 5 unless: (i) such Indemnifying Party is promptly notified of such claim; (ii) the Indemnified Party allows the Indemnifying Party sole control of the defense and settlement of such claim; and (iii) the Indemnified Party provides the Indemnifying Party with reasonable assistance, at the Indemnifying Party’s expense, in connection with the Indemnifying Party’s defense and settlement of such claim.
6. TERM & TERMINATION.
6.1 The initial term of this Agreement will begin when you sign up as reseller on our portal and are awarded discounts and will continue for twelve (12) months (“Initial Term”). On expiration of the Initial Term, the Agreement will automatically renew for consecutive twelve (12) month renewal terms unless either party gives the other written notice of non- renewal at least thirty (30) calendar days prior to the expiration of the Initial Term or then-current renewal term, as applicable. Either of us may terminate this Agreement prior to expiration, for cause or for convenience, by giving the other party thirty (30) calendar days advance written notice. Each of us agrees to stop using the other party’s Marks as soon as reasonably possible following receipt of a notice of non-renewal or termination, and in all events by the effective date of expiration or termination of the Agreement.
6.2 If Bamboozle terminates your participation in the Reseller Program for convenience, Discounts will be honored and applied to your account for the remaining portion of the initial term or then- current renewal term, as applicable, up to a maximum of twelve (12) months from the effective date of termination. If Bamboozle terminates your participation in the Reseller Program for cause, all Discounts will be revoked as of the effective date of termination and Bamboozle will not owe you any future Discounts. If you terminate your participation in the Reseller Program for cause or for convenience, no Discounts will accrue nor be applied for the remaining portion of the initial term or then-current renewal term, as applicable.
6.3 The following sections shall survive expiration or termination of the Agreement: 3, 4, 5, 6, 7, 9, 10, 11, 13, 14, 16, 17, 18 and all other sections that by their nature are intended to survive expiration or termination of the Agreement.
7 CONFIDENTIAL INFORMATION.
7.1 Use of Confidential Information. Each of us agrees not to use the other’s Confidential Information except in connection with the performance of this Agreement, the exercise of our respective legal rights under this Agreement, or as required by law. Bamboozle may use your Confidential Information to the extent necessary to provide the services contracted for under a Qualifying Resale and as necessary to generally manage its business with respect to the provision of such services.
7.2 Disclosure of Confidential Information. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows: (i) to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement, (ii) to a law enforcement or government agency if requested, or if either of us reasonably believes that the other’s conduct may violate applicable criminal law; (iii) as required by law; or (iv) in response to a subpoena, court order or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) calendar days prior to disclosing Confidential Information under this Subsection (or prompt notice if seven (7) calendar days advance notice is not reasonably feasible), unless the law forbids such notice. Neither party will make any public statements, press releases or other public announcements regarding the parties’ relationship and any terms and conditions under this Agreement without the prior written consent of the other party. Such consent shall not be unreasonably withheld.
8 REPRESENTATIONS AND WARRANTIES.
You represent and warrant to Bamboozle that: (i) all information you have provided and will provide in connection with this Agreement, including the information on the Reseller Portal is true, correct, and complete, (ii) you have not been and are not currently the subject of any investigation or legal proceeding of any kind in relation to spamming or the violation of any consumer protection or deceptive trade practices law or regulation, and (iii) entering into this Agreement does not and will not violate any agreement or obligation existing between you and any third party.
9 DISCLAIMER OF WARRANTIES.
9.1 To the extent permitted by applicable law, Bamboozle disclaims any and all warranties not expressly stated in this Agreement, including the implied warranties of merchantability, fitness for a particular purpose, freedom from viruses or other harmful elements, accuracy, reliability, availability, non- infringement, and timeliness.
10 LIMITATION OF DAMAGES.
10.1 Except for liability under Section 7 (Confidential Information) and liability for infringement of the other Party’s intellectual property, neither of us (nor any of our employees, agents, affiliates, or suppliers) is liable to the other for: (i) any indirect, special, incidental or consequential loss or damages of any kind; (ii) any loss of profit; (iii) any loss of business; (iv) any loss of data; (v) any anticipated savings or revenue; or (vi) any loss that could have been avoided by the damaged Party’s use of reasonable diligence, even if the Party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
10.2 Notwithstanding anything in the Agreement to the contrary, except for claims based on (a) each Party’s indemnification obligations set forth in Section 5 (Indemnification) and (b) each Party’s confidentiality obligations set forth in Section 7 (Confidential Information), the maximum aggregate monetary liability of each Party and any of its employees, agents, suppliers, or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall not exceed the amount of Discounts due and unpaid plus Two Thousand Five Hundred Dollars ($2,500.00).
10.3 Nothing in this Agreement shall exclude or limit liability to a greater extent than is permitted by applicable law and nothing in this Agreement shall exclude or limit liability for fraud, fraudulent misrepresentation, or for death or personal injury caused by negligence.
11 GOVERNING LAW/DISPUTES.
The laws of the State of Delaware shall govern this Agreement, no other laws shall apply to our agreement irrespective of the laws applying to the reseller and his locations.In addition, the parties agree to comply with all applicable US government laws and regulations. In the event of any dispute, prior to initiating any legal action, the parties agree to use their best efforts to resolve or settle the dispute by consulting and negotiating with each other in good faith.
12 ASSIGNMENT.
Neither of us may assign this Agreement without the other’s prior written consent, except to a subsidiary or an affiliate, or as part of a transaction by which all or substantially all of that Party’s assets are transferred to a third party, in which case the Party assigning the Agreement shall provide written notification of such assignment to the other Party. Subject to the preceding sentence, this Agreement will inure to the benefit of the Parties’ successors and assigns.
13 NOTICES.
Notices under this Agreement must be given via e-mail, return receipt requested, and confirmed in writing via first class mail or by established and well-known express courier to the address for Bamboozle appearing below, and to the address for Reseller appearing on Bamboozle’s Reseller Program records.
Bamboozle Web Services Inc.
2035 Sunset Lake Road
Newark, Delaware, USA
14 RELATIONSHIP BETWEEN THE PARTIES.
We agree that we are independent contractors, and that neither of us has any fiduciary duty to the other. We each acknowledge that the Discounts provided for in this Agreement are the sole and exclusive compensation for our activities under this Agreement. Neither Party is the agent of the other. Neither Party may represent to any person that it has the power to bind the other on any service contract or other agreement or take any action reasonably likely to lead the public to believe that it is the agent or representative of the other. The Agreement is non-exclusive.
15 NON-SOLICITATION.
You agree that during the term of this Agreement (Initial Term plus any renewal terms) and for twelve (12) months following expiration or termination of this Agreement, you will not solicit or encourage any End User to move their Hosting Services account to another provider, unless Bamboozle has failed to perform its obligations under its agreement with the End User. Nothing in this Section prohibits the End User from initiating a move of its Hosting Services account, or prohibits you from soliciting the End User for services other than the Hosting Services.
16 FINAL AGREEMENT.
This Agreement is the complete and exclusive agreement between the Parties regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
17 TERMINATION OF EXISTING RESALE AGREEMENT.
This Agreement supersedes any existing agreements between you and Bamboozle in which Bamboozle has agreed to pay you a Discount, or other benefits in exchange for your marketing or resale services, and you hereby agree that any such existing agreement(s) are TERMINATED effective as of the effective date stated above. Your resales occurring under any prior agreement will become subject to the terms of this Agreement on the date of this Agreement. By execution of this Agreement, you hereby waive any right to receive Discounts pursuant to any existing agreement for resales occurring after the date hereof and waive any rights to notice set forth in any such existing agreement.
18 MISCELLANEOUS.
Neither party grants the other any rights to any of its intellectual property except for the license to use the Marketing Materials described in Section 2 (Marketing & License) above. Each party shall retain all right, title, and interest in and to its intellectual property, including intellectual property that it may develop during the term of the Agreement. Except as expressly set out otherwise, this Agreement may be amended only by a formal written agreement signed by both parties. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. There are no third party beneficiaries to the Agreement. In the event any term of this Agreement is held unenforceable by a court having jurisdiction, the remaining portion of the Agreement will remain in full force and effect, provided that the Agreement without the unenforceable provision(s) is consistent with the material economic incentives of the parties leading to the Agreement.
19 SERVICES AND PRE-SALES SUPPORT.
Additional Services that are offered with a Product or Solution are non-discountable and might lead to a direct relationship. If a customer decides to sign up directly with Bamboozle, you agree to waive your rights to any discounts or referral fees of commissions.
20 DISCOUNTS
| Program Level | Annual Revenue Attainment | Discount |
|---|---|---|
| Bronze | $250 – $4,999 | 5% |
| Silver | $5,000 – $14,999 | 10% |
| Gold | $15,000 – $49,999 | 15% |
| Platinum | $50.000 – | 25% |
One Time referral fees apply for deal handled and invoiced Bamboozle. Direct invoiced items do not in any case apply for recurrent commissions.
21 EXCEPTIONS
Certain Services are excluded from this Reselling agreement and are not provided as part of it. Please find below the list of Services
Complex Cloud Solutions (Solutions that requires complex engineering or solution effort are solely to be sold by Bamboozle. All solutions that include customer specific SLAs are also excluded from the Resell agreement.
Services excluded from the Reseller Agreement
-
VMWare Cloud
-
Enterprise Backup, Restore and Disaster Recovery with specific SLAs, RTOs and RPOs
- Colocation Services
- Advanced Networking Services (including VPNs, Site-Site VPNs, Software Defined Networking and IP Transit Solutions)
- Complex Managed Services (to be defined when the Reseller is not capable of providing L1 Support)
The Reseller may refer excluded solutions to Bamboozle and receive a finders fee. The finders fee is always be a single, one time payment and is maximum 5% of the initial deal value.