============================ AFFILIATE AGREEMENT ============================

Transcription

1 ============================ AFFILIATE AGREEMENT ============================ Hosting Services Inc. d.b.a Aff.biz is pleased to offer you the opportunity to become our Affiliate. After your acceptance of the terms and conditions set out in this affiliate agreement (Agreement), we agree to appoint you as an authorized, limited, marketing representative for us during the Term. Throughout this Agreement, Aff.biz is referred to as Aff.biz, we, or us. The affiliate is referred to as you or your. The user of our services is referred to as End User. The Effective Date of this Agreement is the date you click I accept. As an affiliate of Aff.biz, you agree to the following: 1) The Services and Payments 1.1 You may choose the products and services to promote (Aff.biz Services). The Aff.biz Services only include eligible plans through our partner programs, a full list of which can be found at We will pay you a predefined commission rate, specified in our affiliate portal, for the Aff.biz Services purchased by an End User who contracts with us, passes our fraud screening procedures, and remains an active End User for at least 60 calendar days (the Affiliate Fee ). The Affiliate Fee will be paid only for the initial term of the Aff.biz Services purchased by the End User, and will not be paid for End Users determined by us to be abusive or fraudulent as set out in paragraph 3.3. You understand that the Affiliate Fee can, and will, change frequently. Sales of the Aff.biz Services are tracked by a cookie-based technology employed by Aff.biz s affiliate management platform. 1.2 The Affiliate Fee is based only on the End User s initial purchase of the Aff.biz Services. Any subsequent purchases of any of our services (also referred to as Sub-sales ) beyond the initial purchase made by the End User, do not qualify for an Affiliate Fee. 1.3 The Affiliate Fee does not include instances where the End User clicks through a banner ad, text link, or other form of advertising from you and makes an initial purchase, and then later returns to make a subsequent purchase. 1.4 Should an End User remain our customer for 60 consecutive calendar days, we will calculate and pay the Affiliate Fee. An Affiliate Fee will not be paid with respect to any End User who cancels the Aff.biz Services within 60 calendar days, or Sub-sales following the initial purchase. Payments are processed once per month. You can elect to be paid via Paypal or check. The following fees will be deducted from the Affiliate Fee, if applicable: a $5.00 check processing fee; and a $25.00 stop-payment check fee. 1.5 If you earn $600 or more in annual commissions, you are required to submit a completed W8 or W9 form. Until this form has been received, we are unable to process any Affiliate Fees beyond this threshold. A copy of this form can be found under the "Account Info" section of the affiliate management area. Completed forms should be mailed to: Aff.biz 517 West 100 North, Suite 225 Providence, Utah Affiliate Agreement page 1 of 6

2 1.6 Our sole and exclusive obligation to you is to pay you the Affiliate Fee, if due, under the provisions of this Agreement. To qualify for an Affiliate Fee, you must be eighteen years of age and supply a valid tax-id number (such as a Social Security Number, Tax Identification Number or ABN). End User web sites must comply with our general terms and conditions. 2) Territory, Customers & Signup Requirements This Agreement does not give you an exclusive territory. Other entities, including our affiliates, resellers and agents, can and will compete against you for the same or similar customers. We will not directly and specifically target your customers. You agree that general advertising, if directed to more than one entity, is not specifically or directly targeting your customers. Any link or other method to sign up potential new End Users must require affirmative action on the part of the target. New sign ups may not be automatically generated. Your sales activity must be intended to generate long term sales for us. 3) Soliciting End Users 3.1 Links, banners and advertisements may not be placed in newsgroups, unsolicited , banner networks, counters, chatrooms or guestbooks. Any link, banner or advertisement placed must be done in such a way that it is not misleading to any site visitor, and must be placed with the intention of delivering lawful sales, leads, or clicks to Aff.biz. 3.2 During the Term, we may, at our discretion, provide you with marketing materials that you may use to promote the Aff.biz Services (Marketing Materials). We grant to you a non-exclusive, revocable, non-transferable, non-sublicensable right and license to use the Marketing Materials for the sole purpose of advertising, promoting and/or marketing the Aff.biz Services. You agree to use the Marketing Materials only in accordance with our guidelines and in the exact form that we provide to you. While we will use reasonable efforts to create Marketing Materials with effective tracking codes, we are not responsible for any Affiliate Fees lost should those tracking codes fail to operate correctly, or should a particular user modify their browser settings in such a way that the tracking codes are not transmitted to us. You agree not to use any of the Marketing Materials, or make any representations, warranties or other statements concerning us or the Aff.biz Services, or any of our other products, services or our company, except as set out in this Agreement. We retain all right, title and interest in and to the Marketing Materials. You agree to make no filing or claim that contravenes our sole ownership interest in the Marketing Materials. 3.3 You are compensated only for driving new and unique business to our properties through your own efforts. We have a zero tolerance for abuse and fraud with regard to the Aff.biz Services. This includes, but is not limited to, order fraud, self-referrals, illegal behavior, misrepresentation of services, traffic hijacking, or any other kind of unlawful, fraudulent or inappropriate behavior. Any behavior that is designed to generate Affiliate Fees from short term or fraudulent customers will be deemed abuse. In the event of a dispute regarding the veracity of an End User purchase, we reserve the right to contact the End User to determine if the order is valid. If we determine you are in violation of this paragraph, this Agreement will be terminated immediately and any earned, but unpaid, Affiliate Fees will be forfeited. 3.4 You agree not to optimize your website for any terms or domain names registered, owned or otherwise protected by trademark law, by the UK2Group (Intellectual Property). Intellectual Property Affiliate Agreement page 2 of 6

3 includes, without limitation, the terms Midphase, Midphase.com, ANHosting, ANHosting.com, WestHost, WestHost.com, 100TB, 100TB.com, VPS.NET, Resell.biz, US2.NET, SupremeSupport, SupremeSupport.com, VirtualInternet, VI.net, Another.com, MailFiltering.com, UK2, and UK2.NET. A violation of this paragraph includes, but is not limited to, bidding on PPC (Pay Per Click) keyword listings using the Intellectual Property. If we determine you are in violation of this paragraph, this Agreement will be terminated immediately and any earned, but unpaid, Affiliate Fees will be forfeited. 3.5 We have zero tolerance for unsolicited of any kind. If you make any reference to us in an unsolicited , advertisement, newsletter or any other direct marketing medium, this Agreement will be terminated and Affiliate Fees forfeited. This includes the use of our Intellectual Property, a link to our web site, or a link to another web site containing references to us, or any of our Intellectual Property. 4) Term The Affiliate Agreement may be terminated by either party upon written notice. Upon termination, our only obligation is to pay all Affiliate Fees earned in accordance with this Agreement, but which are unpaid. You will not receive any Affiliate Fees should we terminate this Agreement for fraud, abuse, or any activities described in paragraphs 3.3, 3.4 or ) Limitation of Liability and Disclaimer 5.1 You agree not to make any claim, warranty, promise or other representation about the Aff.biz Services or any of the services we provide (Affiliate Warranty). You agree that you shall defend, indemnify, save and hold us harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys fees asserted against us, our agents, our clients, officers and employees, that may arise or result from any violation of this Agreement, service provided, performed or agreed to be performed, or any product sold by you, your agents or employees. 5.2 WE MAKE NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED FOR SERVICES WE PROVIDE. NOTWITHSTANDING ANY ORAL OR WRITTEN COMMUNICATIONS BETWEEN US AND YOU ABOUT OR IN CONNECTION WITH THE AFF.BIZ SERVICES OR SERVICES IN GENERAL, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, AND TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR ANY OF OUR EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, SUB-CONTRACTORS OR LICENSORS MAKE ANY WARRANTIES OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, NON-INTERRUPTION, NON-INTERFERENCE, NON-INFRINGEMENT, OR THAT THE AFF.BIZ SERVICES ARE COMPLETELY SECURE OR ERROR-FREE. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES AND EQUIPMENT PROVIDED UNDER OR ASSOCIATED WITH THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE, AND WITH ALL FAULTS BASIS. 5.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY MAKING A CLAIM BASED ON OUR PROVIDING THE AFF.BIZ SERVICES TO AN END USER, OR FOR YOUR ACTIVITIES SET OUT IN THIS AGREEMENT FOR (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III) LOSS OF REVENUES; (IV) LOSS OF DATA OR INTERRUPTION OR Affiliate Agreement page 3 of 6

4 CORRUPTION OF DATA; (V) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; OR (VI) ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE). THIS LIMITATION APPLIES EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OTHER TYPE OF DAMAGES OTHER THAN DIRECT DAMAGES. OUR MAXIMUM LIABILITY SHALL BE ONE MONTH S AFFILIATE FEE (OR THE EQUIVALENT THEREOF) ACTUALLY RECEIVED BY US DURING THE MONTH PRIOR TO YOUR CLAIM. IF THIS DISCLAIMER IS PROHIBITED BY THE LAW GOVERNING THIS AGREEMENT, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT ALLOWED BY LAW. 6) Modifications to this Affiliate Agreement Aff.biz reserves the right to make material modifications to this Agreement at any time following thirty calendar days written notice to you. Modifications may include, for example, changes in the scope of available Affiliate Fees, fee schedules, payment procedures, payment amounts and affiliate program rules. Notice of any modifications to this Agreement will be ed to you. After the thirty-day period has passed, your continued promotion of the Aff.biz Services means you accept the changes made to this Agreement. The prior sentence shall not apply to modifications we make to this Agreement to address typographical errors, misuse of the Aff.biz Services as set out in this Agreement or our AUP, or marketing efforts that contravene the spirit of this Agreement. Those changes shall be effective immediately. 7) Privacy Policy Aff.biz ensures that all personal information being voluntarily submitted to us in conjunction with this Agreement will be kept strictly confidential and used solely by Aff.biz and its authorized representatives and employees, for the strict purpose for which it was intended. We agree not to share, rent, sell or release this information to any individual, entity or third party, for any reason, without specific written consent, except as required by law, regulation or governmental authority or as set out in this Agreement. By accepting these terms, you allow Aff.biz to send special offers or provide other information to you from time to time via . If you do not wish to receive these s, you may opt out of future s at any time by following the instructions included in the . 8) General Provisions 8.1 This Agreement will be construed and controlled by the laws of the State of Utah, and each party consents to exclusive jurisdiction and venue in the federal courts sitting in Salt Lake City, Utah, unless no federal subject matter jurisdiction exists, in which case the parties consent to exclusive jurisdiction and venue in state courts in Logan, Utah. The parties waive all defenses of lack of personal jurisdiction and forum non-conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provisions of this Agreement, the prevailing party will be entitled to recover its reasonable attorneys fees, costs and other expenses. 8.2 This Agreement may only be amended in writing upon agreement of the parties or as set out herein. However, the AUP and Privacy Policy may be amended as provided in them. 8.3 The fact that one party fails to exercise, partially exercises, or delays exercising a right, remedy or power available to it in this Agreement is not a waiver or preclusion of a right to do so in the future. The waiver by a party of time for performance, or extension of the time to do so, shall not constitute a Affiliate Agreement page 4 of 6

5 waiver of the act or condition itself. 8.4 Either party may assign this Agreement to an affiliate if the original signatory to the Agreement remains fully responsible for the rights and obligations set out in it. Otherwise, you may only assign this Agreement with our written consent. The Aff.biz Services may be performed by our corporate subsidiaries, its agents or subcontractors, without your consent. Any other attempt to assign, without written consent, shall be null and void. This Agreement shall be binding upon and inure to either party s benefit and their respective successors and permitted assigns. 8.5 Should a particular provision be held to be illegal or unenforceable in any jurisdiction, that provision shall be effective to the extent of such illegality or unenforceability, without invalidating the remaining provisions, and the provision at issue shall be restated to reflect the original intentions of the parties, to the greatest extent possible, and in accordance with the law. Section, paragraph and other titles are for ease of reference only, and they are not considered to be part of this Agreement. 8.6 This Agreement together with all documents incorporated by reference, states the entire agreement between the parties. Except for pre-existing obligations of confidentiality, non-disclosure and non-competition, with respect to the subject of this Agreement, it supersedes all previous proposals, negotiations and other written or oral communications between the parties. 8.7 This Agreement is the result of negotiations between equally situated parties. Each party has had the ability to protect their legal and other interests, and have had, and do have, a full and complete opportunity to review, analyze, evaluate, negotiate, edit and draft the terms of this Agreement. Accordingly, this Agreement shall not be strictly construed or enforced against any party, and any ambiguity in any term or condition contained in this Agreement shall not be interpreted in favor of one party and against another party, based upon any rule of construction whose premise is draftsmanship of this Agreement or up on the relative bargaining position of the parties. 8.8 If there is a conflict between the terms of this Agreement, AUP and Privacy Policy, they shall have the following precedence: AUP, Privacy Policy, and Agreement. 8.9 The parties are independent contractors. Under no circumstances will either party have the authority to make any representations, claims or warranties of any kind on behalf of the other party, its affiliates, agents, subcontractors, licensors or third-party suppliers The rights and obligations of the parties set out in this Agreement that would by their nature or context be intended to survive the expiration or termination of this Agreement, shall survive. In particular, but without limiting the preceding sentence, the parties rights and obligations under the following sections of this Agreement shall survive: 1.2, 1.3, 1.4, 1.5, 1.6, 3.4, 5, and Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party s reasonable control, including, without limitation, acts of God, telecommunications interruptions, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control (Force Majeure). The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by the Force Majeure shall notify the other party as soon as possible, but in no event less than ten days from the beginning of the Force Majeure event. Affiliate Agreement page 5 of 6

6 8.12 Notices regarding our AUP and Privacy Policy shall be provided to the addresses set out in those documents. All other notices that are required, permitted or necessary under this Agreement must be in writing, and they are deemed to have been received on the earlier of: (i) actual receipt; (ii) the date of receipt set out on any indication of delivery (other than facsimile or confirmation); or (iii) on the fourth business day after being deposited in a governmentally operated postal service, and addressed as below. Parties may provide notice by facsimile and/or , as long as such notice is followed by a written notice as set out above. All notices, requests, consents and other communications shall be delivered to: If to us: Hosting Services Inc. Legal - Re: Aff.biz 517 W 100 N, Suite 225 Providence, UT ) Definitions 9.1 Aff.biz Services means any web hosting service offered by brands associated with Aff.biz, which encompasses Midphase, WestHost, AN Hosting, 100TB, VPS.NET and UK2.NET. 9.2 Affiliate Fee means a predefined amount of money that Aff.biz compensates its affiliates for qualifying sales resulting from their promotional methods. Affiliate Agreement page 6 of 6