Terms and Conditions for the Cloudstream Certified Partner Program
Cloudstream®Certified Partner Program Terms and Conditions
cloudstream.com is operated by Spectrio LLC, a Delaware limited liability company ("Cloudstream"). These Terms and Conditions (this "Agreement" or the “Terms”) state the terms and conditions under which you may participate in Cloudstream’s Certified Partner program and access or browse cloudstream.com (the "Website"). If you object to anything in this Agreement or any other document or policy referred to in this Agreement, you should leave and discontinue use of the Website immediately before checking the “I agree” box.
ACCEPTANCE OF TERMS AGREEMENT. This Agreement is an electronic contract that sets out the legally binding terms of your engagement by Cloudstream. By checking the “I agree” box in relation to these Terms, you accept this Agreement and agree to the terms, conditions and notices contained or referenced herein.
A link to this Agreement will be found at www.cloudstream.com/partner. In order to access and retain this electronic Agreement, you must have access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must use all software and equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. Please print a copy of this document for your records. To retain an electronic copy of this Agreement, you may save it into any word processing program.
APPOINTMENT AS CERTIFED SALES PARTNER.You hereby agree to act as a non-exclusive certified sales partner with respect to the provision by Cloudstream of message on-hold or business background music services (“Services”) to third-parties (“Customers) during the Term (as defined below), solely in accordance with the terms and conditions of this Agreement. Notwithstanding anything herein to the contrary, Cloudstream may in its sole discretion directly or through an unaffiliated third party sell the Services to any person anywhere in the world. Notwithstanding the foregoing, your engagement hereunder and the terms thereof are subject to approval, rejection and modification by Cloudstream. The date that Cloudstream notifies you that you have been approved as a certified sales partner shall be the “Effective Date” of this Agreement.
MARKETING/SALES OBLIGATIONS. You shall, at your own expense: (a) market, advertise, promote and solicit the sale of the Services to prospective Customers consistent with good and ethical business practices, in each case using your best efforts to procure contracts entered into between Cloudstream and a Customer for the provision of the Services by Cloudstream to such Customer, (b) initiate and attend sales calls and meetings with prospective and existing Customers; (c) observe all sales standards, specifications and requirements given to you by Cloudstream in relation to the marketing, advertisement and promotion of the Services; (d) market, advertise, promote and solicit the sale of the Services and conduct business in a manner that reflects favorably at all times on the Services and the good name, goodwill and reputation of Cloudstream; and (e) promptly forward to Cloudstream (without deduction), if applicable, any amount received from a Customer, with endorsements if necessary. If Cloudstream determines, in its sole discretion, that you are not fulfilling your obligations under this paragraph, Cloudstream may terminate this Agreement immediately, effective upon notice to you thereof.
HARDWARE MINIMUM ADVERTISED PRICE (“MAP”). You agree to comply with MAP policies set forth by Cloudstream with regard to sale of hardware and equipment needed to use the Services. Notification of changes in MAP policies may be sent from time to time by electronic mail and it is your responsibility to adjust advertised pricing in order to comply. Non-compliance with MAP policy is cause for immediate termination of this Agreement.
YOUR USE OF CLOUDSTREAM SERVICES. You acknowledge and agree that upon Cloudstream’s acceptance of you as a certified sales partner, Cloudstream shall provide you with (i) four free customized on hold messages, and (ii) one or more messages prepared by Cloudstream regarding its cloudstream®program (the “Free Messages”). You agree that at all times during the Term, you shall use the Free Messages on all of your business telephone lines, and upon the termination of this Agreement, you shall immediately cease the use of the Free Messages and deliver written notice to Cloudstream certifying that you have done so.
PROHIBITED ACTS.Notwithstanding anything to the contrary in this Agreement, you shall not directly or indirectly: (a) make any representations, warranties, guarantees, indemnities, similar claims or other commitments (i) actually, apparently or ostensibly on behalf of Cloudstream, or (ii) to any Customer with respect to the Services, which representations, warranties, guarantees, indemnities, similar claims or other commitments are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims or other commitments in this Agreement or any written documentation provided by Cloudstream to Customer; or (b) engage in any unfair, unethical, anti-competitive, misleading or deceptive practices respecting the Services, including any product or services disparagement.
QUALIFIED CUSTOMERS. Any customer referred by you to Cloudstream who purchases services from Cloudstream shall be referred to herein as a “Qualified Customer.”
COMMISSIONS/RESIDUALS. During the Term, and during the time period beginning on the date that a Qualified Customer activates a device, and ending on termination of this Agreement by you or Cloudstream, Cloudstream will pay you monthly residuals at the rates set forth below (“Residuals”), based on the net fees received by Cloudstream from a Qualified Customer. It is your sole responsibility to report Qualified Customers to Cloudstream on a timely basis for the purpose of Residuals. Cloudstream is not obligated or liable to pay you retroactive Residuals for Qualified Customers not reported by you on a timely basis, and any such Residuals will be forfeited by you.
|Message on Hold Service||Business Music Service|
Commissions become payable to you only at such times and only to the extent that Cloudstream actually receives unconditional payment from a Qualified Customer under the corresponding Services Contract. Cloudstream shall pay you on or about the 30thof each calendar month by check of immediately available funds an amount equal to the difference between (i) the Commissions and Residuals owed to you hereunder for the immediately preceding payment period, less (ii) any reduction in previously paid Commissions or Residuals based on any Customer chargebacks or credits made duringsuch preceding payment period.
REPORTS/DISPUTE POLICIES.Along with each monthly payment, Cloudstream will deliver to you a report (“Report”) indicating the amount of payments received by Cloudstream during the immediate preceding payment period from Qualified Customers for which you are entitled to a Commission or Residual hereunder. You shall notify Cloudstream in writing of any dispute regarding any Commissions or Residuals payment made hereunder (along with a reasonably detailed description of the dispute) within 10 days from the date of such Report. You will be deemed to have irrevocably accepted all Reports for which Cloudstream does not receive timely notification of disputes. You and Cloudstream agree to seek to resolve all such disputes expeditiously and in good faith. Notwithstanding anything to the contrary, you shall continue performing its obligations under this Agreement during any such dispute.
COMPLIANCE WITH LAWS, RULES AND REGULATIONS.You shall at all times comply with all laws, rules and regulations. Without limiting the generality of the foregoing, you shall not engage in any activity or transaction in connection with this Agreement or its obligations arising under this Agreement, including any marketing, telemarketing, promotion, advertising or sales, that violates any law, rule or regulation.
INTELLECTUAL PROPERTY RIGHTS. you acknowledge and agree that: (a) any and all Cloudstream Intellectual Property Rights are the sole and exclusive property of Cloudstream or its licensors; (b) you shall not acquire any ownership interest in any of Cloudstream's Intellectual Property Rights under this Agreement; (c) any goodwill derived from the use by you of Cloudstream's Intellectual Property Rights inures to the benefit of Cloudstream or its licensors, as the case may be; and (d) you shall use Cloudstream's Intellectual Property Rights solely for the purposes of performing your obligations under this Agreement and only in accordance with this Agreement and the instructions of Cloudstream.
Subject to the terms and conditions of this Agreement, Cloudstream hereby grants to you a non-exclusive, non-transferable and non-sublicensable license to use the Licensed Trademark during the Term solely on or in connection with the marketing, promotion, advertising and sale of the Services. You will promptly discontinue the display or use of the Licensed Trademark or change the manner in which the Licensed Trademark is displayed or used with regard to the Services when requested by Cloudstream. You are authorized to market the Services only as authorized by Cloudstream pursuant to this Agreement. Other than the express licenses granted by this Agreement, Cloudstream grants no right or license to you by implication, estoppel or otherwise to any of Cloudstream's Intellectual Property Rights.
You shall not, and shall not cause or encourage any Person or Customer to: (a) use any mark, anywhere, that is confusingly similar to Cloudstream's trademarks; (b) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Services or any Cloudstream trademark; (c) misappropriate any of Cloudstream's trademarks for use as a domain name without prior written consent from Cloudstream; or (d) alter, obscure or remove any of Cloudstream's trademarks or trademark or copyright notices or any other proprietary rights notices placed on marketing materials or other materials that Cloudstream may provide.
On expiration or earlier termination of this Agreement, you will immediately cease all display, advertising, promotion and use of all of Cloudstream's trademarks and will not thereafter use, advertise, promote or display any trademark or any part thereof that is similar to or confusing with Cloudstream's trademarks or with any trademark associated with Cloudstream or the Services.
“Intellectual Property Rights” means all (a) patents; (b) trademarks (including, the Licensed Trademark); (c) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; (e) trade secrets; and (f) all other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, whether registered or unregistered.
“Licensed Trademark” means CLOUDSTREAM; U.S. Registration No.: 4948141; Registration Date: April 26, 2016.
WARRANTY LIMITATION.EXCEPT FOR THOSE WARRANTIES EXPRESSLY PROVIDED HEREIN, YOU HEREBY ACKNOWLEDGE AND AGREE THAT CLOUDSTREAM (INCLUDING OWNERS, MEMBERS, MANAGERS, AFFILIATES, SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND INDEPENDENT CONTRACTORS OF CLOUDSTREAM) HAS NOT MADE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE AGREEMENT, THE WEBSITE, OR THE PRODUCTS OR SERVICES OFFERED BY CLOUDSTREAM. THE WEBSITE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE ARE PROVIDED BY CLOUDSTREAM ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. CLOUDSTREAM DISCLAIMS, AND YOU HEREBY WAIVE, ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES REGARDINGCOMPLETENESS, ACCURACY, RELIABILITY, SUITABILITY OR AVAILABILITY WITH RESPECT TO THE AGREEMENT, THE WEBSITE OR THE PRODUCTS OR SERVICES OFFERED BY CLOUDSTREAMFOR ANY PURPOSE.WITHOUT LIMITING THE FOREGOING, CLOUDSTREAMHEREBY MAKES NO REPRESENTATIONS NOR ANY WARRANTIES OF ANY KIND IN CONNECTION WITH THE INFORMATION PROVIDED HEREIN OR THE QUALITY OF ANY PRODUCTS OR SERVICES. ANY RELIANCE YOU PLACE ON SUCH INFORMATION IS THEREFORE STRICTLY AT YOUR OWN RISK.
THIS WEBSITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES, OR TYPOGRAPHICAL ERRORS. WE MAY MAKE CHANGES TO THE MATERIALS AND SERVICES AT THIS SITE, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY PRODUCTS LISTED HEREIN, AT ANY TIME WITHOUT NOTICE. THE MATERIALS OR SERVICES AT THIS SITE MAY BE OUT OF DATE, AND WE MAKE NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
DISCLAIMER OF LIABILITY. IN NO EVENT SHALL CLOUDSTREAM OR ANY OF ITS OWNERS, MEMBERS, MANAGERS, AFFILIATES, SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES OR INDEPENDENT CONTRACTORS, BE IN ANY WAY LIABLE TO YOU OR ANY PARTY FOR ANY DIRECT, INDIRECT, GENERAL, COMPENSATORY, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, ARISING FROM, OR RELATING TO, THE USE OF OR INABILITY TO USE THE WEBSITE OR THE CONTENT, MATERIALS AND FUNCTIONS THEREOF, OR THE PRODUCTS OR SERVICES OFFERED BY CLOUDSTREAM, OR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMMISSIONS, OR OTHER INACCURACIES IN THE WEBSITE, OR ANY PRODUCT OR SERVICE OFFERED BY CLOUDSTREAM,OR OTHERWISE RELATING HERETO, REGARDLESS OF WHETHER THE SAME ARE FORESEEABLE OR IF CLOUDSTREAM WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, CLOUDSTREAM'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY CLOUDSTREAM TO YOU UNDER THIS AGREEMENT.
INDEMNIFICATION. You agree to indemnify, hold harmless, and defend Cloudstream and its officers, managers, employees, agents, affiliates, successors and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, fees and the costs of enforcing any right to indemnification under this Agreement, incurred by Cloudstream (collectively, “Losses”), relating to, arising out of or resulting from any third-party claim alleging: (a) breach or non-fulfillment of any representation, warranty or covenant under of this Agreement by you; (b) any negligent or more culpable act or omission of you (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; or (c) any bodily injury, death of any person or damage to real or tangible personal property caused by the negligent or more culpable act or omission of you.
STATUS AS INDEPENDENT CONTRACTOR. You are an independent contractor pursuant to this Agreement. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between you and Cloudstream or an employee/employer relationship. Neither you nor Cloudstream has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any Customer or other third party. The operations of you are subject to the sole control of you. You shall be solely responsible for any and all costs or expenses that it may incur in the performance of its obligations hereunder.
FORCE MAJEURE.Cloudstream shall not be liable for failing to perform its obligations hereunder because of circumstances reasonably beyond its control. Such circumstances shall include (without limitation) any acts or omissions of any government or governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, labor disputes, power failure, delays in transportation or deliveries of supplies or materials, acts of God, computer failure, hardware failure, telecommunications failure, software failure, failure of users to cooperate with the reasonable requests of Cloudstream, breach of this Agreement by users, and any other events reasonably beyond the control of Cloudstream.
TERM & TERMINATION. The initial term of this Agreement commences on the Effective Date and ends on the first anniversary of the Effective Date, unless earlier terminated as provided under this Agreement (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for additional successive twelve-month terms unless either Party provides written notice of nonrenewal at least 15 days prior to the end of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”), or unless and until earlier terminated as provided under this Agreement.Notwithstanding anything contained herein to the contrary, either party shall have the right to terminate this Agreement at any time during the Term for any reason or no reason by providing not less than sixty (60) days prior written notice of termination to the other party. Notwithstanding the foregoing, this Agreement may be terminated immediately by either party by providing written notice to the other party if: (a) if the other party materially breaches any of its obligations hereunder and fails to cure said breach within ten (10) days from the date of written notice of said breach by the non-breaching party to the breaching party; (b) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (c) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. Upon termination of this Agreement, you shall be entitled to receive all residuals that have then been accrued and are otherwise payable hereunder as of the termination date of this Agreement, except if the termination resulted from your breach of this Agreement. Any damages suffered by Cloudstream as a result of said breach shall be deducted from your final payment of residuals pursuant to the foregoing. No residuals are due and payable AFTER the termination of this Agreement.
EFFECT OF TERMINATION OR EXPIRATION; OBLIGATIONS AFTER TERMINATION.Upon the expiration or earlier termination of this Agreement, you shall promptly:(i) cease to represent yourself as Cloudstream's authorized you with respect to the Services, and shall otherwise desist from all conduct or representations that might lead the public to believe that you is authorized by Cloudstream to market, promote or solicit sales of the Services; (ii) return to Cloudstream all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on Cloudstream's Confidential Information; (iii) permanently erase all of Cloudstream's Confidential Information from your personal computer systems; (iv) cease using the Free Messages, (v) cease using any Cloudstream tradenames and logos, and (vi) certify in writing to Cloudstream that it has complied with the requirements of this clause.
Upon the expiration or earlier termination of this Agreement, Cloudstream’s obligation to pay you Commissions and Residuals hereunder shall immediately cease and Cloudstream shall not have any further obligation to pay Commissions or Residuals with respect to any Qualified Customers effective as of the date of termination.
CONFIDENTIAL INFORMATION. From time to time during the Term, Cloudstream may disclose or make available to you information about its business, including, without limitations, its good, services, pricing, financial information, customers, targeted customers, forecasts, confidential information and/or materials comprising or relating to its Intellectual Property Rights, trade secrets, third-party confidential information and/or other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). You shall during the Term and at all times thereafter: (a) protect and safeguard the confidentiality of the Cloudstream's Confidential Information with at least the same degree of care as the you would protect your own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Cloudstream's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform your obligations under this Agreement; and (c) not disclose any such Confidential Information to any third-party. At any time during or after the Term, at the Cloudstream's written request, you shall promptly return or destroy all Confidential Information and copies thereof that you has received under this Agreement.
CONSENT TO JURISDICTION, FORUM SELECTION AND CHOICE OF LAW.You irrevocably and unconditionally agrees that you will not commence any action, litigation or proceeding of any kind whatsoever against Cloudstream in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached hereto and thereto, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the courts of the State of Florida sitting in the City of Sarasota, and any appellate court from any thereof. You irrevocably and unconditionally submit to the exclusive jurisdiction of such courts and agree to bring any such action, litigation or proceeding only in the courts of the State of Florida sitting in the City of Sarasota. You agree that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law, rule or regulation. This Agreement, including all exhibits, schedules, attachments and appendices attached hereto and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the law, rule or regulations of the State of Florida, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the law, rule or regulations of any jurisdiction other than those of the State of Florida.
ENTIRE AGREEMENT.This Agreement contains the entire agreement between you and Cloudstream regarding the use of the Website and your sale of the Services.
SEVERABILITY.If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect.
PREVAILING PARTY. In any action to enforce these Terms, the prevailing party will be entitled to recover its legal expenses, including reasonable attorneys’ fees, legal assistants’ fees, costs and expenses from the non-prevailing party of all court costs (including bankruptcy proceedings and appeals) in addition to any other relief to which the party is entitled. Any cause of action brought by you against Cloudstreamor its officers, partners, directors, managers, members, shareholders, distributors, affiliates, subsidiaries, sponsors, advertisers, licensors, employees, agents, representatives or independent contractors,must be instituted within one year after the cause of action arises or be deemed forever waived and barred.
ASSIGNMENT. You may not assign your rights and obligations under these Terms to any third party, and any purported attempt to do so will be null and void. Cloudstream may freely assign its rights and obligations under these Terms.
SEVERABILITY. If any part of these Terms is held invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect.
WAIVER. Any failure by Cloudstream to enforce or exercise any provision of these Terms or related rights will not constitute a waiver of that right or provision.
CAPTIONS.The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.
Please contact us with any questions regarding this Agreement.