Last update: November 13, 2020
This Terms of Service Agreement (“Agreement”) is between Bookmark Your Life Inc. (“we”, “us”, “Company”, “System” or “Bookmark”) and agency account representative (“you”, “User” or “Agent”). This agreement is part of the general Bookmark Terms of Service and you agree with them by signing up for the Agency Program.
I. Company has developed a proprietary electronic platform that can be used to build websites (the “Platform”).
II. Agent wishes to license the Platform to have its own Design Agency in its own name (the “Agency Program”).
NOW, THEREFORE, acknowledging the receipt of adequate consideration and intending to be legally bound, the parties agree as follows:
1.1. In General. Company hereby grants to Agent a non-transferable, non–assignable, non-sublicensable and non-exclusive license of the right to operate the Agency Program (the “License”) under his own brand.
1.2. The Agency Program shall be branded under Agent’s name and shall be accessible to the public under a URL designated by Agent. The name and logo(s) of Company shall not appear on the Agency Program unless mutually agreed by the parties.
1.3. Restrictions. Agent a) shall not sublicense, sell, rent, lease, reproduce, copy, transfer, or assign any part of the Agency Program; (b) shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile, reverse engineer or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of any part of the Agency Program; (c) except as expressly stated herein, no part of the Agency Program may be copied, downloaded, and republished in any form or by any means; (d) Agent shall not use, encourage, promote, facilitate or instruct other users to use, the Agency Program for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive (including content which offends religious sensibilities)
Agent agrees not to use the Agency Program in order to: (a) upload or distribute any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or a mobile device or data; (b) collect information or data regarding other users, including e-mail addresses, without their consent (e.g., using harvesting bots, robots, spiders, or scrapers); or (c) disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Agency Program (e.g., a denial of service attack).2. Services
Company shall provide the following services in connection with the creation and operation of the Agency Program (the “Services”):
2.1. Customization. Company shall customize the Platform with the name, logos, and branding of Agent, with the “look and feel” desired by Agent. However, such customization shall not include the addition of functionality or the incorporation of new software unless mutually agreed by Company and Agent.
2.2. Integration with Other Services. Company shall integrate the Agency Program with third party services, such as Braintree Payments as a payment processor.
2.3. Hosting Services. Company shall provide hosting for the Agency Program through Amazon Cloud Services or another comparable hosting service.
2.4. Technical Support. Company shall provide ongoing support and maintenance services to ensure that the Platform performs as intended.
2.5. Agent Support. Company may in its discretion provide email support to the Agents of the Agency Program for up to 3 months following the execution of this agreement. The ongoing Agent support is responsibility of the Agent and Company shall monitor the rightful use of the Agency Program. Company will give the option for ongoing email support or live chat support which will be part of another agreement and subject to additional fees.3. Fees
3.1. Taxes. The fees are exclusive of all federal, state, municipal, or other government excise, sales, use, value-added, gross receipts, personal property, occupational, or other taxes now in force or enacted in the future, and Agent shall pay any such tax (excluding taxes on Company’s net income) that Company may be required to collect or pay now or at any time in the future with respect to such fees.
3.2. Agency Program Fees. Agency Program yearly fees and Agent usage fees are NON-REFUNDABLE. Yearly agent fees will be renewed each year on the anniversary of original signup date. The subscription fees for the Agency Program are 40% of the original agent pricing agreed upon for each client. This fee will be deducted from payments sent to Agent from Bookmark. The Company reserves the right to adjust its fee structure after thirty (30) days notice.
3.3. Bookmark sends payments every 2 weeks for all agent revenue minus agent usage fees. First payment will be sent 30 days after registration of agent account afterwards every 2 weeks. Minimum payment level must be reached to get payment in any period.4. Cancellation
You may cancel this service at any time and for any reason, however, all fees are non-refundable. Therefore, a cancellation will only cancel future billings. The Company reserves the right to revoke access to the Agency Program if the applicable fees are not paid when due.5. Ownership
Company owns all rights, title and interest, including all related intellectual property rights, in and to the Agency Program and content therein. As stated above, the right to use and operate the Agency Program is licensed to you. This means that the Agency Program is under no circumstances sold/transferred to you. Indeed, this Agreement does not convey to you any rights of ownership in or related to the Agency Program. Our name, logo, and other names associated with the Agency Program belong to us (or to our licensors, where applicable). No license of the right to use them is granted to you by implication, estoppel or otherwise.6. Agent’s Obligations
Agent shall (i) notify Company of any defects in the Platform, (ii) give Company electronic access to the Platform to troubleshoot and correct any defects, (iii) install any software updates recommended by Company, and (iv) use reasonable commercial efforts to operate the Agency Program in accordance with all applicable laws and regulations, including but not limited to securities and consumer protection laws.
Agent shall be solely responsible for all the trademarks, logos, design, media, text, graphics, animations, audio components, video components, photos or any other information posted and published on the Agency Program and for activity that occurs on the Agency Program (even when any such content is posted by the Agency Program’s Agents). Ensure that his Agents agree to terms and conditions similar to the Company’s terms and conditions https://www.bookmark.com/terms. You will keep information of your Clients confidential. You will not share or sell any such client information to business owners, offer such information as a bonus, add this information to membership sites, or otherwise distribute this information without written consent from Company. You agree to not send SPAM (the violation of this provision may result in immediate termination of this Agreement). Further, you will be responsible for the fair usage of the Agency Program by your Clients. Company reserves the right to charge you for abnormal server or traffic usage.
All threats and acts to harm the reputation of Bookmark are considerate as violation of this Agreement and will result in immediate termination of services without refund.7. Modifications
We reserve the right, at any time, to modify and update the functionality of the Agency Program or any part thereof, with or without notice. You agree that we will not be liable to you or to any third party for any modification of the Agency Program or any part thereof. The Company reserves the right to delete all expired websites from the Agency Program without notice. Websites without login activity for the past two (3) months will be deemed expired websites.8. Warranties
The Company shall use reasonable efforts consistent with the prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Agency Program. Agency Program may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company’s reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, THE COMPANY DOES NOT WARRANT THAT THE Agency Program WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.1. Compliance with Laws. Company shall use commercially reasonable efforts to conduct its business, and develop the Platform, in compliance with the applicable laws, rules and regulations.9. Confidentiality; Employees
9.1.1. Included Information. For purposes of this Agreement, the term “Confidential Information” means all confidential and proprietary information of a party, including but not limited to (i) financial information, (ii) business and marketing plans, (iii) the names of employees and owners, (iv) the names and other personally-identifiable information of users of the Agency Program, (v) security codes, and (vi) all documentation provided by Company.
9.1.2. Excluded Information. For purposes of this Agreement, the term “confidential and proprietary information” shall not include (i) information already known or independently developed by the recipient without the use of any confidential and proprietary information, or (ii) information known to the public through no wrongful act of the recipient.
9.1.3. Confidentiality Obligations. During the Term and at all times thereafter, neither party shall disclose Confidential Information of the other party or use such Confidential Information for any purpose other than in furtherance of this Agreement. Without limiting the preceding sentence, each party shall use at least the same degree of care in safeguarding the other party’s Confidential Information as it uses to safeguard its own Confidential Information. Notwithstanding the foregoing a party may disclose Confidential Information (i) if required to do by legal process (i.e., by a subpoena), provided that such party shall notify the other party prior to such disclosure so that such other party may attempt to prevent such disclosure or seek a protective order; or (ii) to any applicable governmental authority as required in the operation of such party’s business.
9.2. Injunctive Relief. The parties acknowledge that a breach of this section 9 will cause the damaged party great and irreparable injury and damage, which cannot be reasonably or adequately compensated by money damages. Accordingly, each party acknowledges that the remedies of injunction and specific performance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies.10. Responsibility for Operation of Agency Program
The parties agree that Agent, and not Company, is solely responsible for the operation of the Agency Program. The role of Company is only to provide the Platform and the Services. Company does not act as a fiduciary, business or legal advisor, or co-venturer. Agent is solely responsible for ensuring that the Agency Program is operated in accordance with applicable laws, for monitoring the content displayed on the Agency Program, and for establishing the terms of its relationships with users of the Agency Program. Company is not responsible for any information or content displayed on or transmitted through the Agency Program.11. Term
11.1. In General. The initial term of this Agreement shall be for one (1) years, followed by successive renewal periods of one (1) year each (together, the “Term”), unless sooner terminated pursuant to this section 11 or other provisions of this Agreement providing for termination. You agree that we will not be liable to you or to any third party for any suspension, or discontinuance of operation of the Agency Program or any part thereof.
11.2. Termination for Cause. This Agreement may be terminated at any time if either party fails to perform any of its material obligations hereunder and such failure continues for thirty (30) days following written notice from the non-breaching party. For these purposes (i) any obligation of Agent to pay any amount to Company shall be treated as a material obligation, Company may (but shall not be required to) terminate this Agreement without giving written notice of such failure or any additional failure. Without limiting the foregoing, the Company reserves the right to terminate its contractual relationship with any Agency Program user who repeatedly infringes upon third party copyright rights. Company may terminate this Agreement without notice if the Company believes you have violated any provision of the Agreement.
11.3. Termination by Agent Without Cause. Agent may terminate the Agreement at any time and for any reason by contacting us in writing at: info@Bookmark.com.
11.4. Termination by Company Without Cause. Company reserves the right to suspend or discontinue the operation of the Agency Program or any part thereof after hundred and eighty (180) day notice prior to the termination. Following a termination without cause, the Agent will have the option to authorize the Company to continue to provide service(s) to the users of the Agency Program, who have contractual relationship with the Agent. Agent will receive an affiliate commission of 25% of the net proceeds of the Company, collected for each website made on the Agent's Agency Program prior to the termination, for a maximum period of 3 years from the date of termination. Only websites that are current (unexpired and with fees paid in full) will be subject to the aforementioned affiliate commission.
11.5. Effect of Termination. Upon any termination of this Agreement, the License shall terminate and Agent shall have no further rights in or to the Platform. Provided that Agent has paid all amounts due and otherwise complied with all of its material obligations under this Agreement. Any termination of this Agreement (howsoever occasioned) shall not affect any accrued legal rights, obligations and liabilities of either you or the Company, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after any such termination. The Agent understands that any termination of the Agreement may involve deletion of his content from the Agency Program and the Company’s databases.12. Ownership of Intellectual Property
12.1. Intellectual Property of Company. Company is the exclusive owner of the Platform and all of the intellectual property rights associated with the Platform, including software and copyrights, even if Company incorporates into the Platform suggestions made by Agent.
12.2. Intellectual Property of Agent. Agent is the exclusive owner of its name, logo(s), trademarks, URLs, and other intellectual property and, together with users of the Agency Program, all of the content displayed on the Agency Program.
12.3. Clients of Agency Program. Agent owns all of the relationships with the clients of the Agency Program, including project developers. Company may not share any personally-identifiable information of such users (e.g., names, addresses, social security numbers) with any person or contact or solicit any such users for any purpose without the advance written consent of Agent, which may be withheld in the sole and absolute discretion of Agent. If the Agreement is terminated due to Agent’s violation, the Company has the rights to continue providing services to the Clients of the Agency Program and transfer them to the Company’s main Platform.
12.4. Data. Company may collect, use, store, and sell data concerning the operation of the Agency Program provided that such data not (can cannot be used to) reveal the identity of Agent or any user of the Agency Program.
12.5. Use of Agent’s Name. Company may, but shall not be required, advertise that Agent uses the Platform.13. Limitation of Claims and Damages
IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE Agency Program OR OF CONTENT OWNED BY ANY Agency Program USER (INCLUDING YOU), INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THE COMPANY OR THE Agency Program, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE Agency Program. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE COMPANY, ITS DIRECTORS, EMPLOYEES OR AGENTS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE Agency Program, EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO THE COMPANY TO OPERATE THE Agency Program UNDER YOUR OWN BRAND NAME.14. Indemnification by Agent
The Agent agrees to defend, indemnify and hold harmless the Company, its directors, employees, agents, independent contractors, service providers and consultants, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to any part of content you provide to the Company or post to, store or otherwise publish on the Agency Program or Agent’s use of or inability to use the Agency Program, including without limitation any actual or threatened suit, demand or claim made against the Company and/or its directors, employees, agents, independent contractors, service providers and consultants, arising out of or relating to (a) the Agency Program or conduct, (b) Agent’s violation of the Agreement, or (c) Agent’s violation of the rights of any third party.15. Miscellaneous
15.1. Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in writing and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver of such right or remedy generally.
15.2. Governing Law. You agree to submit to the personal jurisdiction of the courts located within the County of Ontario, Canada for the purpose of litigating all claims or disputes. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect our intellectual property rights in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. In any action of any kind relating to this Agreement, the prevailing party shall be entitled to collect reasonable attorneys' fees and costs from the non-prevailing party in addition to any other recovery to which the prevailing party is entitled.
15.3. Assignment. Neither Company nor Agent may assign its rights or obligations under this Agreement without the prior written consent of the other. Notwithstanding the preceding sentence, a party may assign its interest in this Agreement to a person acquiring (by sale, merger, reorganization, or otherwise) substantially all of the transferor’s assets or business, provided that (i) the transferee agrees to assume and perform all obligations of the transferor for periods following the transfer, (ii) the transferor remains liable for all obligations prior to the transfer, and (iii) in the case of a transfer by Agent, the transferee shall not be engaged in the business of developing, marketing, or supporting an electronic platform in competition with the Platform. The Company may charge a reasonable fee for the review and processing of the information regarding the transfer. Attorney rates and fees shall not exceed the average rates in the respective jurisdiction.
15.4. Payment of Fees. In the event of a dispute arising under this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs, provided that if a party prevails only in part the court shall award fees and costs in accordance with the relative success of each party. Attorney rates and fees shall not exceed the average rates in the respective jurisdiction.
15.5. Force Majeure. Neither party shall be entitled to recover damages or terminate this Agreement by virtue of any delay or default in performance by the other party (other than a delay or default in the payment of money) if such delay or default is caused by Acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected; provided that the party experiencing the difficulty shall give the other prompt written notice following the occurrence of the cause relied upon, explaining the cause and its effect in reasonable detail. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
15.6. Signature in Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original.
15.7. Signature by Facsimile or Email. An original signature transmitted by facsimile or email shall be deemed to be original for purposes of this Agreement.
15.8. No Third Party Beneficiaries. This Agreement is made for the sole benefit of the parties. No other persons shall have any rights or remedies by reason of this Agreement against any of the parties or shall be considered to be third party beneficiaries of this Agreement in any way.
15.9. Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of each party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.
15.10. Titles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only and are not deemed a part of the context hereof.
15.11. Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons may require.
15.12. Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days, except that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be considered timely if paid, given, or performed on the next succeeding business day.
15.13. Entire Agreement. This Agreement constitutes the entire agreement between Company and Agent and supersedes all prior agreements and understandings.