Sponsor (Affiliate) Terms and Conditions
These Terms and Conditions set out the terms which govern the agreement
between Michael E. Gerber Companies & thenewdreamingroom.com, doing business as “The New Dreaming Room”, an California corporation, having a place of business at 126 N.Twin Oaks Valley Rd, Unit 101, San Marcos, CA 92069 (“Michael E. Gerber Companies & thenewdreamingroom.com”) and the organization identified on the The New Dreaming Room™ Affiliate Application (“Sponsor”). By clicking “I Agree,” Sponsor hereby agrees to all Terms and Conditions set out in herein, effective immediately (the “Effective Date”).
1. Definitions. For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
a. “Affiliate” also know herein as “Sponsor” of a party means any corporation or other legal entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for the board of directors or other mechanism of control for such corporation or other entity;
b. “Commissionable Customers” shall mean any new Customer with which Michael E. Gerber Companies & thenewdreamingroom.com, The New Dreaming Room™, enters into a Customer Agreement as a direct result of Sponsor’s referral by using their “Sponsor Link.”
c. “Sponsor Link” shall mean a link generated by The New Dreaming Room™ affiliate program to track sales referred to Michael E. Gerber Companies & thenewdreamingroom.com’ The New Dreaming Room™ Website. “TheNewDreamingRoom.com”
d. “Confidential Information” means any business, marketing, technical, scientific or other information disclosed by either party (including their Affiliates) which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties (or their Affiliates), exercising reasonable business judgment, to be confidential;
e. “Customer” means any company who enters into an agreement with Reseller for the elements of The New Dreaming Room™’s as outlined in the Statement of Work;
f. “Customer Agreement” means a written or electronic agreement entered into between The New Dreaming Room™ and a Customer under which Michael E. Gerber Companies & thenewdreamingroom.com will provide a Customer any Services;
g. “Net Revenue” has the meaning of the sale minus any fees associated with processing the customers purchase transaction.
h. “Offering” refers to the entirety of The New Dreaming Room™ Professional Services, Software, Third- Party Software and Third-Party Licenses.
i. “Payment Term” means the period for which Sponsor will receive the Commission.
j. “Referral Program” means the The New Dreaming Room™’s Sponsor Program.
k. “Services” mean any and all services that Michael E. Gerber Companies & thenewdreamingroom.com provides to a Customer, including access to the Software, Third Party Software, Third Party Licenses, Professional Services and any applicable Deliverables, in accordance with a Customer Agreement.
2. Sponsor Appointment
a. Appointment. Subject to the terms and conditions of this Agreement, Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com hereby grants to Sponsor the non-exclusive, non-transferable, non-sublicenseable right to promote the Services in the Territory to potential Customers of Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com, provided that Sponsor will not make any representations and warranties on behalf of Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com or bind or commit Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com in any way. Sponsor agrees to comply with all applicable laws and not make any misleading or false claims about Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com or its Services.
b. Eligibility. Sponsor’s participation in the Referral Program is prohibited where void by applicable law or regulation. Sponsor represents and warrants to Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com that (i) if Sponsor is an individual, it is the age of majority in its jurisdiction of residence; (ii) Sponsor is not an employee of Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com Ltd. or an immediate family member or household member of an employee of Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com Ltd.; (iii) Sponsor is legally able to accept the Commission; and (iv) Sponsor’s acceptance of the Commission does not violate any standards of business conduct policies to which Sponsor has agreed.
c. Referral Process. Sponsor shall complete a registration form in respect of any prospective Customer to be Referred to Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com as outlined in the Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com Referral Program Guide.
d. Customer Subscriptions. Sponsor acknowledges and agrees that all Services shall be purchased as direct transactions between Customers and Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com or through an authorized Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com Reselling Sponsor (with permission from both the Referrer and with agreement from the Customer). Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com shall have sole discretion on the pricing of Services and whether or not to enter into a Customer Agreement with any prospective Customer referred by Sponsor.
e. Trademark License. Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com grants Sponsor a non-exclusive, revocable, limited, non-sublicenseable license, to copy, display and use the Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com trademarks, names and logos (“Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com Marks”) to promote the Offering during the Term as further described in the Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com Referral Program Guide. All use of Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com Marks by Sponsor will enure to the benefit of Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com.
f. Program Changes. Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com reserves the right to modify, amend, cancel, or suspend the Referral Program at any time in its sole discretion.
g. Restrictions. In participating in the Referral Program Sponsor shall (i) comply with all applicable laws, including privacy laws and anti-corruption laws; (ii) not send any unsolicited emails, junk or spam communications, or otherwise breach applicable anti-spam laws; and (iii) not use any bots, “web crawlers” or similar technologies to mine the Internet for personal information.
3. Compensation. Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com agrees to pay Sponsor a commission (“Commission”), as described in the Sponsor Approval Email sent to the approved Sponsor’s registered email address. Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com shall only be required to pay the Commission upon receipt of full payment from the applicable Commissionable Customer under a Customer Agreement, according to the terms conditions found on Https://thedreamingroom.com/terms-conditions.
a. Payment Schedule. All amounts due under this Agreement will be paid 90 days from the point of sale on the 15th thereafter or which ever comes first.
b. Method of Payment. Unless otherwise stated in this agreement. All compensation payments will be made by using the services of PayPal payments. Sponsor, may by written to LuzDelia@MichaelEGerberCompanies, with Jordan@MichaelEGerber.com cc’d.
c. Taxes. The Commission is inclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges imposed by a government authority (“Taxes”) only if taxes are being charged by Michael E. Gerber Customers to the Customer. Sponsor agrees and acknowledges that it is responsible for the report and remitting of all applicable Taxes that arise from the Commission. Notwithstanding the foregoing, Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com may withhold from the Commission any amounts required to be withheld by the appropriate government authority, provided that Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com remits such amounts to the appropriate government authority on behalf of the Sponsor and supplies Sponsor with evidence of such payment.
4. Term & Termination.
a. Term. This Agreement will commence as of the Effective Date noted on the Referral Sponsor Approval Email and will continue in effect for an initial term of one (1) year (such initial term referred to in this Agreement as the “Initial Term”). Thereafter, the term of the Agreement will be automatically renewed annually on the anniversary of the Effective Date for additional one (1) year renewal terms (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non- renewal to the other party at least sixty (60) days prior to the end of the Initial Term or any Renewal Term hereof. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.
b. Termination. Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com may terminate this Agreement at any time by providing 30 days’ written notice to Sponsor. Either party may terminate this Agreement by giving a written notice to the other party:
i. if the other party commits a material breach of this Agreement and fails to remedy such material breach within thirty (30) days after delivery of written notice by the non-breaching party of the occurrence or existence of such breach or such longer period as may be agreed to in writing by the non-breaching party;
ii. if the other party applies for or consents to the appointment of a receiver, trustee, or liquidator for all or substantially all of its assets or such a receiver, trustee, or liquidator is appointed; or such party has filed against it an involuntary petition of bankruptcy that has not been dismissed within sixty (60) days thereof, or files a voluntary petition of bankruptcy, or a petition or answer seeking reorganization, or an arrangement with creditors, or seeks to take advantage of any other law relating to relief of debtors; or
iii. for convenience upon ninety (90) days’ notice by the terminating party.
c. Effect of Termination and Survival. Upon termination or expiration of the Agreement, Sponsor’s appointment as a Sponsor for Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com’s Services shall immediately end. All rights and licenses granted pursuant to this Agreement will expire immediately upon termination or expiration. As well as their access to any online portals or creative assets shall be immediately removed. Termination or expiration will not release Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com from its obligation to pay Sponsor any fees accruing prior to the date of the termination or expiration.
d. Survival. Sections 1, 3, 4, 5, 6, 7, 8 and 9 of this Agreement shall survive termination or expiration. Upon termination or expiration of the Agreement, Sponsor shall immediately destroy or return, at Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com’s option, Michael E. Gerber Companies & thenewdreamingroom.com & thenewdreamingroom.com’s Confidential Information and all copies thereof, Whether digital or paper.
5. Warranties and Disclaimer
a. Mutual Warranties. Each party represents and warrants to the other that: (i) it has full power and authority to enter into this Agreement, and to perform its obligations under this Agreement; (ii) this Agreement has been duly authorized, executed and delivered by the party and constitutes a legally enforceable agreement of the party; and (iii) this Agreement is not limited or restricted by, and is not in conflict with, any commercial arrangements, obligations, contract, agreement or other instrument to which the representing party is either bound or subject.
b. Disclaimer. THE LIMITED WARRANTIES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, UNDERTAKINGS OR TERMS OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, DURABILITY, LACK OF VIRUSES, NON-INFRINGEMENT, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, LACK OF NEGLIGENCE AND/OR LACK OF WORKMANLIKE EFFORT, AND MICHAEL E. GERBER COMPANIES & THENEWDREAMINGROOM.COM HEREBY DISCLAIMS ANY SUCH IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS. NO MICHAEL E. GERBER COMPANES’ AGENT, REPRESENTATIVE OR DEALER IS AUTHORIZED TO MODIFY, EXTEND OR ADD TO ANY WARRANTY PROVIDED BY MICHAEL E. GERBER COMPANIES & THENEWDREAMINGROOM.COM PURSUANT TO THIS AGREEMENT.
6. Limitations of Liability
a. IN NO EVENT SHALL MICHAEL E. GERBER COMPANIES (INCLUDING ITS AFFILIATES, SUBCONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, DIRECTORS OR EMPLOYEES) BE LIABLE TO SPONSOR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, RELIANCE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) WHETHER ARISING FROM CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY.
b. IN NO EVENT SHALL MICHAEL E. GERBER COMPANIES’ (INCLUDING ITS AFFILIATES, SUBCONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, DIRECTORS OR EMPLOYEES) LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE BASIS OF LIABILITY OR THE FORM OF ACTION (INCLUDING FUNDAMENTAL BREACH, TORT, NEGLIGENCE, MISREPRESENTATION, OR OTHER CONTRACTUAL OR TORT CLAIM), EXCEED TOTAL PAYMENTS MADE BY MICHAEL E. GERBER COMPANIES TO SPONSOR IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT OR EVENTS GIVING RISE TO THE LIABILITY.
7. Confidentiality and intellectual property
a. Protection of Confidential Information. Sponsor acknowledges that the Services (and any information incorporated therein or provided in respect thereto, including pricing, customer lists, and Sponsors) and this Agreement is the Confidential Information of Michael E. Gerber Companies.
b. Each party shall maintain in confidence all Confidential Information of the other party and shall use such Confidential Information only for the purpose of exercising its rights and fulfilling its obligations under this Agreement, and shall not disclose any Confidential Information of the other party to any third party except as expressly permitted hereunder or make any unauthorized use thereof. Each party shall treat Confidential Information of the other party with the same degree of care against disclosure or unauthorized use as it affords to its own information of a similar nature, or a reasonable degree of care, whichever is greater. Each party further agrees not to remove or destroy any proprietary or confidential legends or markings placed upon any documents or other materials containing Confidential Information of the other party. Each party shall be entitled to provide Confidential Information to contractors of that party that have agreed to confidentiality obligations at least as protective as those contained herein. The obligations of confidence set forth in this Agreement shall extend to any Affiliates that have received Confidential Information and shall also cover Confidential Information disclosed by any Affiliate.
c. Exemptions. Neither party shall be bound by obligations restricting disclosure and use set forth in this Agreement with respect to Confidential Information, or any part thereof, which: (i) was lawfully known or received by the receiving party prior to disclosure without any obligation of confidentiality; (ii) was lawfully generally publicly known prior to its disclosure, or becomes generally publicly known other than through a breach of this Agreement; (iii) was disclosed to the receiving party by a third party, provided such third party, or any other party from whom such third party receives such information, is not in breach of any confidentiality obligation in respect of such information; or (iv) is independently designed and developed by the receiving party without any violation of any Intellectual Property or other rights of the other party.
d. Compelled Disclosure. If a receiving party is compelled pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, to disclose Confidential Information of a disclosing party, the receiving party shall use reasonable efforts to (i) seek confidential treatment for such Confidential Information, and (ii) provide prior written notice to the disclosing party to allow the disclosing party to seek protective or other court orders.
e. Reservation of Rights. The rights and licenses granted under this Agreement are only as expressly set forth herein and in specific schedules. No other license or right is or will be deemed to be granted, whether by implication, estoppel, inference or otherwise, by or as a result of this Agreement or any conduct of either party under this Agreement.
a. Relationship. The obligations of each party under this Agreement shall be in every case several and shall not be, or be construed to be, either joint or joint and several. Nothing contained in this Agreement shall be deemed to constitute either party or any of its representatives the Sponsor, agent, franchisee, or legal representative of the other party or to create any fiduciary relationship for any purpose whatsoever. Any use of the term ‘Sponsor’ or ‘Sponsoring’ or similar termination does not mean or refer to a legal Sponsorship, but instead means or refers to a co-operative business or contractual relationship. Except as otherwise specifically provided in this Agreement, nothing in this Agreement shall confer on either party or any of its representatives any authority to act for, bind, or create or assume any obligation or responsibility on behalf of the other party. Nothing contained in this Agreement will prohibit either party from entering into a similar arrangement with a third party.
b. Assignment. Sponsor may not assign this Agreement, any interest herein or any rights hereunder without the prior written consent of the Michael E. Gerber Companies. Subject to the foregoing limits on assignment, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
c. Governing Law. This Agreement shall be governed by the laws of the state of california, without regard to its conflict of law principles. Sponsor shall only be entitled to bring any action or proceeding arising out of or relating to this Agreement in a court in San Marcos, California. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.
d. Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes (each a “Force Majeure Event”), provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance. Michael E. Gerber Companies shall have the right to terminate this Agreement in the event that Sponsor is unable to fulfill its obligations herein for a period of at least sixty (60) calendar days due to a Force Majeure Event.
e. MEDIATION – ARBITRATION: All disputes arising out of this agreement shall be submitted to mediation in accordance with the rules and procedures of Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts. If mediation is not successful in resolving all disputes arising out of this agreement, those unresolved disputes shall be submitted to final and binding arbitration. The arbitrator shall be selected in accordance with the rules of Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts. If such services are not available, the dispute shall be submitted to arbitration in accordance with the laws of the State of California. The arbitrator’s award shall be final, and judgment may be entered upon it by any court having jurisdiction thereof.
f. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. If the application of any provision of this Agreement to any particular facts or circumstances is held to be invalid or unenforceable by an arbitrator or court of competent jurisdiction, then (i) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (ii) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
g. Amendments; Waivers. This Agreement may be amended, and the taking of any action required hereunder may be waived, by the written consent of each party at the time such amendment or waiver is sought. No such waiver will operate as a waiver of, or estoppel with respect to, any other action. No failure to exercise, and no delay in exercising, any right, remedy, or power hereunder will operate as a waiver thereof, nor will single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or at equity. The waiver of the time for performance of any act or condition hereunder does not constitute a waiver of the act or condition itself.
h. Interpretation. Any agreement or schedule referred to herein means such agreement or Referral Sponsor Agreements amended, supplemented and modified from time to time to the extent permitted by the applicable provisions thereof and by this Agreement. References to any statute or regulation means such statute or regulation as amended at the time and includes any successor statute or regulation. Unless otherwise stated, references to recitals, articles, sections, paragraphs, schedules and exhibits will be references to recitals, articles, sections, paragraphs, schedules and exhibits of this Agreement. The parties agree that this Agreement will be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities will not be interpreted against the party that drafted the relevant language.
i. Notice. In any case where any notice or other communication is required or permitted to be given by one party to the other party hereunder, such notice or communication shall be in writing and (i) personally delivered, (ii) sent by international air courier service with confirmation of delivery requested, or (iii) transmitted by email.
j. Entire Agreement. This Agreement, including the documents incorporated by reference into this Agreement and/or executed by both parties constitute the entire agreement between the parties on the subject matter hereof and supersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. No preprinted terms or conditions of any purchase order submitted by Sponsor to Michael E. Gerber Companies shall be of any contractual effect between the parties. This Agreement may not be modified or waived orally and may only be modified in a writing signed by duly authorized representatives of each party. To the extent any terms and conditions of this Agreement conflict with the terms of any other form or any other document, the documents shall control in the following order: (i) Referral Opportunity Approval Email with the latest date(s); (ii) Referral Program Authorization Letter; (iii) this
Agreement; and, (iv) any other documents expressly incorporated herein by reference.
k. Rights and Remedies. Except as specifically provided in this Agreement, the rights and remedies provided herein and all other rights and remedies available to either party at law or in equity are, to the extent permitted by law, cumulative and not exclusive of any other right or remedy now or hereafter available at law or in equity, neither asserting a right nor employing a remedy shall preclude the concurrent assertion of any other right or employment of any other remedy.
l. Publicity. Sponsor consents to publication of its name by Michael E. Gerber Companies as a referral Sponsor or reseller (as applicable) in a factual listing of Michael E. Gerber Companies customers/Sponsors to be published within presentations, on trade show signs, and on its website. Michael E. Gerber Companies will seek Sponsor’s prior written authorization for use of Sponsor’s name for promotional activities beyond the above-mentioned, which may include press releases and brochures.
m. Counterparts; Signatures. The parties agree to accept digital signatures as valid and binding in the execution of this Agreement. This Agreement may be executed in counterparts each of which shall be deemed an original but all of which together shall constitute one and the same instrument.