THIS AGREEMENT, made and effective as of the last date set forth below by and between FLASHBACK DATA, LLC., having its principal office and place of business at 4029 S Capital of Texas Hwy, Suite 224, Austin, Texas, 78704 (“Flashback Data”) and VAR (“Value Added Reseller”)
RECITALS
WHEREAS, Flashback Data is in the business of, and possesses certain rights and expertise in, data recovery, including proprietary software, methods, knowledge, devices, specifications, models, documents, trade secrets, and business information (“Flashback Data recovery service”): and
WHEREAS, Value Added Reseller (VAR) may refer customers which may require Flashback Data recovery services; and
WHEREAS, the parties wish to detail the circumstances under which VAR may refer such customers to Flashback Data, the process by which Flashback Data will perform its data recovery services for such referred customers and the compensation or discount to the VAR for the referral of customers to Flashback Data.
NOW THEREFORE, it is agreed that, to the extent that VAR shall refer customers to Flashback Data or resell service from Flashback Data recovery services, such relationship will be governed by the following terms and conditions:
1. Issuance of VAR Identification Code. Upon receipt of a fully executed Agreement, VAR will be issued a VAR Identification Code, which shall be thereafter be used by VAR for all referrals under this Agreement.
2. Contract arrangement between Flashback Data and Reseller or Customer: Flashback Data will contract directly with the reseller or referral customer unless otherwise directed by the reseller on all aspects of Flashback Data recovery services, which ordinarily consists of inspection of the reseller’s or referral customers damaged hard disks or other data storage media, evaluation and/or identification of the problem, and estimation of the costs involved. Using its best efforts to correct the problem and/or retrieve or minimize the damage to the equipment or the data, returning the media and equipment to the reseller or referral customer, and billing and collecting from the reseller or referral customer.
3. Compensation to the VAR; Limitations on Other Fees; Repeat Business. Flashback Data agrees to pay VAR the sum of 10% up to 25% (depending on the volume of jobs per month…See Appendix A) of the invoiced amount (less parts, evaluation, backup media costs, and all shipping and insurance charges) for all original customer referrals or reseller agreements accompanied by the VAR Identification Code. The VAR compensation shall be payable net 30 days (following payment to Flashback Data by the customer or reseller.) Active VARs shall receive monthly statements together with a commission check, referenced by a description of the referral, VAR Identification Code and such other information as the parties may adopt to facilitate the relationship set forth in this Agreement. It is the responsibility of the VAR to see that all referred customers’ business bears the VAR Identification Code.
Exception – Economy service: Due to the extraordinary discount on the Economy service, Flashback data pays a flat commission rate of $40 to VAR and no discounts are applied to the original balance.
The VAR shall not charge customer in excess of 50% of the Flashback Data standard or quoted fees. This includes evaluation fees, recovery fees, etc. for data recovery services for that particular referral.
Any repeat use of Flashback Data’s Data Recovery Services, which is initiated directly by the customer after the original referral is completed, shall not be subject to this Agreement, nor shall Flashback Data be required to pay compensation to VAR therefore.
4. Relationship Between the Parties. This Agreement shall not constitute VAR the agent or legal representative of Flashback Data for any purpose whatsoever, nor shall VAR hold it/his/herself out as such. This Agreement creates no relationship of joint adventurers, partners, associates or principal and agent between the parties, and both parties are acting, as independent contractors with regard to the other and each are principals. VAR is granted no right or authority to assume or create any obligation or responsibility for or on behalf of Flashback Data or otherwise to bind Flashback Data or to use Flashback Data’s name other than as may be expressly authorized by Flashback Data. VAR agrees to indemnify and hold Flashback Data harmless for any damages caused to Flashback Data (including without limitation costs of suit or defense and reasonable attorney’s fees) as a result of VAR breach of this covenant.
5. Marketing and Technical Literatures, Etc. Flashback Data shall supply to VAR without cost reasonable quantities of Flashback Data’ marketing and technical literature and other sales aids and devices as may be designed and made available by Flashback Data from time to time in Flashback Data’s sole discretion.
In consideration of commission and allowed excess charges outlined in this agreement, reseller will advertise itself as an “Authorized Flashback Data Reseller” on all advertising and marketing media, including web site, advertising, business cards, signage, etc.
6. Term of Agreement; Termination. The term of this Agreement shall be for twelve (12) months from the date hereof. The terms of the Agreement may be extended for successive periods by the joint written consent of both parties. Either party may terminate this Agreement, with or without cause, at anytime by sending written notice of termination to the other party.
7. Non-Solicitation of Employees and Contractors. During the term of the agreement and for a period of one (1) year thereafter, VAR will not, directly or indirectly, individually or on behalf of any other person, firm, partnership, corporation, or business entity of any type, hire, solicit, assist or in any way encourage any current employee, contractor, or consultant of the Company or any affiliate of the Company to terminate his, her, or its employment, consulting, or other business relationship with the Company or affiliate, nor will VAR hire or solicit the employment or services of any former employee, contractor or consultant of the Company or any affiliate of the Company whose employment or other business relationship has been terminated for less than three (3) months.
8. Non-Assignability. Neither the Agreement nor any interest in it shall be assigned directly or indirectly by either party without the prior written consent of the other. Subject to the foregoing provision of this paragraph, this Agreement shall be binding upon and inure to the benefit of the legal representatives, successors and assigns of the parties.
9. Uncontrollable Circumstances. Either party’s performance of any part of this Agreement shall be excused to the extent that such performance is hindered, delayed or made impractical by: (a) the acts of omissions of the other party; (b) flood, fire, strike, war, or riot: (c) unavailability of parts or software; (d) any other cause (whether similar or dissimilar to those listed) beyond the reasonable control of that party. Upon occurrence of any such event(s), the party whose performance is so affected shall notify the other party of the nature and extent of the event(s) so that decisions to mitigate the negative effect(s) of such event(s) may be promptly made.
10. Limitation of Damages; Limitation of Actions. The parties agree, notwithstanding any other provision of the Agreement to the contrary:
a. That the total liability of Flashback Data or its suppliers to VAR under this Agreement shall be strictly limited to the VAR Compensation or Discount described in Paragraph 3 above.
b. That no party to this Agreement may commence an action hereunder more than one (1) year after its expiration or cancellation, or in the event of (a) default, or (b) breach of any warranty, more that one (1) year after said default or breach occurs, regardless of the aggrieved party’s knowledge or lack of knowledge of the default of breach.
11. Miscellaneous. The parties agree that this Agreement shall be construed and the relations of the parties shall be determined in accordance with the laws of the State of Texas; provided, however, that if any provision of this Agreement is in violation of any applicable law, such provision shall to such extent be deemed null and void, and the remainder of the Agreement shall remain in full force and effect. The place of adoption of this Agreement is deemed 4029 S Capital of Texas Hwy, Suite 224, Austin, Texas, and 78704, S.A.
Any revision or modification of this Agreement shall be effective only if it refers to this Agreement, is in writing and is signed by an authorized representative of each party to this Agreement. This Agreement, together with any Exhibits or other attachments, or any document incorporated herein by reference, constitutes the entire agreement between the parties in relation to this subject matter.
APPENDIX A:
| Classification | Volume of Jobs Per Month | % Discount or Commissions |
| Bronze | 1 – 10 Jobs | 10% |
| Silver | 11 – 20 Jobs | 15% |
| Gold | 21 – 30 Jobs | 20% |
| Bonus | 31+ Jobs | 25% |
