Affiliate Program Terms and Conditions
1. Affiliate Program.
a. These Affiliate Program Terms and Conditions govern the respective rights and
obligations of Web.com, Inc. its affiliates, successors and assigns (“Company”)
and the program participant (the “Affiliate”).
These Terms and Conditions apply to the Affiliate’s participation in the Company
Affiliate Program (the “Affiliate Program”) whereby
Affiliate will refer to Company potential customers (“Prospects”)
through the Affiliate’s web site or subscription e-mail newsletters (“Affiliate
Site”).
b. Company may modify the content, terms and conditions of this Affiliate Program
from time to time upon seven (7) days prior notice. Any change to this Affiliate
Program will be effective upon the eighth (8th) day from the date of notice.
c. Affiliate acknowledges that Affiliate has read and agrees to be bound by the
following Affiliate Program Terms and Conditions.
2. Affiliates
a. Affiliate will actively refer Prospects to Company. A Successful Affiliate
is one which satisfies the following criteria:
(1) Affiliate enrolls in, and qualifies for the Affiliate Program by applying for
the Company Affiliate Program through Commission Junction, Inc.; and
(2) Affiliate refers Prospects to Company by placing Links on the Affiliate Site
which, when clicked on by a Prospect, takes the Prospect to a designated location
on the Company Site;
(3) The Prospect orders an Company Qualifying Hosting Plan through Company’s
online ordering system within forty-five (45) days after clicking on a Link;
(4) The Service is ordered in the Prospect’s name and contains complete, accurate
and current billing and contact information specific to the Prospect; and
(5) The Prospect is not a previous customer of Company who received Services from
Company during the six (6) months prior to the new Service Order Date (as defined
by the Company Terms of Service); and
(6) The Prospect is an Company hosting client for a minimum of thirty-one (31) consecutive
calendar days and pays for one (1) full month of service; and
(7) The Prospect has not cleared his or her “cookies” or clicked on
a Link other than the Link on Affiliate’s site prior to ordering the Service;
and
(8) The Prospect is not a previous customer of Company's, whose Services were terminated
by Company for non-payment or other violation of Company's standard terms and conditions.
b. All Prospect information will expire forty-five (45) days after being submitted.
Company in its sole discretion may accept or reject any Prospect.
c. All Prospect Orders are subject to credit approval, availability, and other Company
terms and conditions (including terms of service and acceptable use policy) available
at Company’s website.
3. Compensation and Benefits
a. Affiliate shall receive a payment at the then-current payment rate for each Successful
Affiliate as specified through the Commission Junction, Inc. Network Service (the
“Payment”).
b. Affiliate shall bear all taxes, duties, levies, and other similar charges (and
any related interest and penalties), however designated or imposed on it as a result
of the existence or operation of the Payments or Affiliate Program Agreement, including
any income, sales, or use tax on profits which may be levied against it.
c. Affiliate must be in good standing to receive the Payment; no Payment will
be applied to accounts that are past due or for accounts that are cancelled before
the conditions for payment of the Payment are met. Upon cancellation of Affiliate’s
account, any outstanding or previously accrued Payments will be forfeited.
d. Payments will not be paid for accounts established through any channels other
than as described herein. The Payment will be paid to Affiliate in accordance
with the Affiliate’s Publisher Service Agreement with Commission Junction,
Inc.
4. Affiliate’s Representations and Warranties. Affiliate
hereby represents and warrants to Company, and agrees that during the Term of the
Agreement Affiliate will ensure that: (a) The information submitted by Affiliate
as part of the Affiliate Program is true and correct in all material respects; (b)
Affiliate will comply with all applicable laws, rules and regulations in the conduct
of its business; (c) Affiliate will not make any representations concerning the
Services except those that have been approved or published by Company; (d) Affiliate
will not distribute any documents or materials or post any information on the Affiliate
Site describing the Services except those that have been approved or published by
Company; (e) Affiliate will not cause or enable any Prospects or other transactions
to be made that are not in good faith, including but not limited to, by means of
any device, program, robot, Iframes, hidden frames, JavaScrip popup windows, redirects
or clicking on Links that are not provided by Company pursuant to this Affiliate
Program; (f) Affiliate will not place Links in newsgroups, message boards, unsolicited
e-mail and other types of spam, banner networks, counters, chatrooms, guestbooks,
IRC channels or through similar Internet resource; (g) Affiliate will place
Links such that it is unlikely that they will mislead Prospects and such that it
is reasonably likely that such Links will deliver bona fide Prospects; (h)
Affiliate will not establish or cause to be established any promotion that provides
any rewards, points, or compensation for Prospects or that allows third parties
to place Links on the third-party’s website or in its e-mails unless permitted
by Company in writing and (i) Affiliate will not use this program to purchase plans
for Affiliate use or resale.
5. Additional Company Policies.Affiliate will abide by and
utilize, the Affiliate Program, Company’s other products and services, and
the Company Site, only in accordance with Company’s then-current policies
as such policies are published on the Company Site.
6. Affiliate’s Responsibilities.Affiliate will conduct
itself in a professional manner and will maintain a reputation for fair dealing
and exemplary service among its customers or clients. Affiliate will not make
any statement, or take any action, that could reasonably be expected to reflect
poorly on Company or on the reputation of Company or its products and services.
Affiliate agrees not to participate in the Affiliate Program through any website
or e-mail service which is misleading, libelous, defamatory, obscene, abusive, violent,
bigoted, hate-oriented, illegal, contains content targeted at children, or offers
any illegal good or service, links to any website that does so, offers or promotes
pornography, tobacco, gambling, or any illegal activity or the disparagement of
any individual group on the basis of age, color, national origin, race, religion,
gender, sexual orientation or physical or mental handicap, which engages in sending
unsolicited commercial e-mail, or which is based outside of the United States. Affiliate
may only use the Links provided through the Program. Affiliate may not alter,
modify or change the Links in any way.
7. Company Intellectual Property.
a. Company’s trademarks, tradenames, service marks, logos, other names and
marks, and related product and service names, design marks and slogans are the sole
and exclusive property of Company. Except as otherwise provided in the Agreement,
Affiliate may not use any of the foregoing in any advertising, publicity or in any
other commercial manner without the prior written consent of Company.
b. Any feedback, data, answers, questions, comments, suggestions, ideas or the like
which Affiliate sends to Company relating to the Services will be treated as being
non-confidential and non-proprietary. Company may use, disclose or publish
any ideas, concepts, know-how or techniques contained in such information for any
purpose whatsoever.
8. Limited Warranty.
a. Company represents and warrants to Affiliate that Company will provide Services
hereunder in the same manner as Company provides Services to other customers at
the same level and type of service.
b. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, WEB.COM MAKES NO REPRESENTATIONS
OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY
SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT
OF THIRD-PARTY RIGHTS, AND WEB.COM HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT
LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO AFFILIATE HEREUNDER
IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER.
WEB.COM DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR
COMPLETELY SECURE.
9. Limitation of Liability.
a. In no event will Company’s liability in connection with the Services,
ANY SOFTWARE PROVIDED HEREUNDER, or this Agreement, whether caused by failure to
deliver, non-performance, defects, breach of warranty or otherwise, exceed THE aggregate
DISCOUNT paid BY Company TO Affiliate hereunder during the 12-month period immediately
preceding the event giving rise to such liability.
b. Company cannot guarantee continuous service, service at any particular time,
integrity of data, information or content stored or transmitted via the Internet.
Company will not be liable for any unauthorized access to, or ANY corruption, erasure,
theft, destruction, alteration or inadvertent disclosure of, data, information or
content transmitted, received or stored on its system.
c. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL be liable in any
way to THE OTHER PARTY OR ANY OTHER PERSON for any lost profits or revenues, LOSS
OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES
or similar economic loss, or for any PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, consequential
OR SIMILAR damages OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY
OR OTHER RIGHT HEREUNDER, arising out of or in connection with the performance or
non-performance of this Agreement, OR (EXCEPT AS PROVIDED IN SECTIONs 10 AND 11)
FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER it
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
d. The limitations contained in this Section apply to all causes of action in the
aggregate, whether based in contract, tort or any other legal theory (including
strict liability), other than claims based on fraud or willful misconduct. The
limitations contained in Section 9(c) shall not apply to liability arising on account
of a party’s breach of Section 11 or to Affiliate’s indemnification
obligations under Section 10.
10. Indemnification of Company. Affiliate shall defend,
indemnify and hold harmless Company, its affiliates and their respective present,
former and future officers, directors, employees and agents, and their respective
heirs, legal representatives, successors and assigns (collectively the “Company
Indemnitees”), from and against any and all losses, damages,
costs, liabilities and expenses (including, without limitation, amounts paid in
settlement and reasonable attorneys’ fees) which any of the Company Indemnitees
may suffer, incur or sustain resulting from or arising out of (i) Affiliate’s
breach of any representation, warranty, or covenant contained in this Agreement,
(ii) services provided by the Affiliate to any Company customer, and (iii) claims
or actions of third parties alleging unfair or deceptive trade practices or false
advertising in connection with statements or claims made by Affiliate pertaining
to Company’s Services.
11. Confidentiality.
a. Each party will not, without the prior written consent of the other party, use
or disclose to any Person any Proprietary Information of the other party disclosed
or made available to it, except for use of such Proprietary Information as required
in connection with the performance of its obligations or use of the Services hereunder.
Subject to the terms of this Agreement, each party will (i) treat the Proprietary
Information of the other party as secret and confidential, (ii) limit access to
the Proprietary Information of the party to those of its employees who require it
in order to effectuate the purposes of this Agreement, and (iii) not disclose the
Proprietary Information of the other party to any other Person without the prior
written consent of the other party.
b. Notwithstanding anything to the contrary contained herein, the following shall
not be considered Proprietary Information: (i) any information that the receiving
party can demonstrate by written documentation was within its legitimate possession
prior to the time of disclosure by the disclosing party; (ii) any information that
was in the public domain prior to disclosure by the disclosing party as evidenced
by documents that were published prior to such disclosure; (iii) any information
that, after disclosure by the disclosing party, comes into the public domain through
no fault of the receiving party, (iv) any information that is disclosed to the receiving
party without restriction by a third party who has legitimate possession thereof
and the legal right to make such disclosure; or (v) any information that, two years
after expiration or termination of this Agreement, does not constitute a trade secret
under applicable law.
c. Each party acknowledges that disclosure of any aspect of the Proprietary Information
of the other party shall immediately give rise to continuing irreparable injury
to the other party inadequately compensable in damages at law, and, without prejudice
to any other remedy available to the other party, shall entitle the other party
to injunctive or other equitable relief. Upon expiration or termination of
this Agreement for any reason, each party shall promptly return to the other party
all Proprietary Information of the other party (including all copies thereof) in
its possession or control.
12. Miscellaneous.
a. Independent Contractor. Company and Affiliate are independent contractors
and nothing contained in this Agreement places Company and Affiliate in the relationship
of principal and agent, master and servant, partners or joint venturers. Neither
party has, expressly or by implication, or may represent itself as having, any authority
to make contracts or enter into any agreements in the name of the other party, or
to obligate or bind the other party in any manner whatsoever.
b. Governing Law; Jurisdiction. The validity and effect of this Agreement
shall be governed by and construed and enforced in accordance with the laws of the
State of Georgia, without regard to its conflicts of laws principles. The
United Nations Convention on Contracts for the International Sale of Goods and the
Uniform Computer Transactions Act do not apply to this Agreement. Any
suit, action or proceeding concerning this Agreement must be brought in a Georgia
state or federal court located in fulton county, georgia, and each of the parties
hereby irrevocably consents to the exclusive jurisdiction of such courts (and of
the appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by applicable law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or proceeding
which is brought in any such court has been brought in an inconvenient forum.
c. Mandatory Arbitration. Notwithstanding Section 12(b) above, each
party agrees that any dispute between the parties arising out of this Agreement
or in any manner relating to the Affiliate Program or the Services must be submitted
by the parties to arbitration in accordance with the Commercial Arbitration Rules
of the American Arbitration Association, as administered by Resolutions Resources
Corp. of Atlanta, Georgia (or such other recognized provider of arbitration services
agreed upon by both parties) before a single arbitrator, appointed in accordance
with such rules. Any such arbitrator must render a reasoned opinion in writing
only where the amount in dispute exceeds $100,000. Judgment upon the award may be
entered in any court having jurisdiction thereof. Any such arbitration will
be held in Atlanta, Georgia. Any action filed by either party in any court
in violation of this Section should be dismissed pursuant to this Section.
d. Headings. The headings herein are for convenience only and are not
part of this Agreement.
e. Entire Agreement; Amendments. This Agreement, including documents
incorporated herein by reference, supersedes all prior discussions, negotiations
and agreements between the parties with respect to the subject matter hereof, and
this Agreement and the Publisher Service Agreement constitute the sole and entire
agreement between the parties with respect to the matters covered hereby.
In case of a conflict between this Agreement and any purchase order, service order,
work order, confirmation, correspondence or other communication of Affiliate or
Company, the terms and conditions of this Agreement shall control. No additional
terms or conditions relating to the subject matter of this Agreement shall be effective
unless approved in writing by any authorized representative of Affiliate and Company.
This Agreement may not be modified or amended except by another agreement in writing
executed by the parties hereto; provided, however, that these Terms and Conditions
may be modified from time to time by Company in its sole discretion, which modifications
will be effective upon the eighth (8th) day after seven (7) days prior notice has
been provided to Affiliate.
f. Severability. All rights and restrictions contained in this Agreement
may be exercised and shall be applicable and binding only to the extent that they
do not violate any applicable laws and are intended to be limited to the extent
necessary so that they will not render this Agreement illegal, invalid or unenforceable.
If any provision or portion of any provision of this Agreement shall be held to
be illegal, invalid or unenforceable by a court of competent jurisdiction, it is
the intention of the parties that the remaining provisions or portions thereof shall
constitute their agreement with respect to the subject matter hereof, and all such
remaining provisions or portions thereof shall remain in full force and effect.
g. Notices. All notices and demands required or contemplated hereunder
by Affiliate to Company shall be in writing and shall be deemed to have been duly
made and given upon date of delivery if delivered in person or by an overnight delivery
or postal service, upon receipt if delivered by facsimile the receipt of which is
confirmed by Company, or upon the expiration of five days after the date of posting
if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers
as designated on Company’s web site for the giving of notice. All notices
and demands required or contemplated hereunder by Company to Affiliate shall be
in writing and be made through the Commission Junction, Inc. account manager user
interface or to Affiliate’s business address as registered in any jurisdiction
in which Affiliate is qualified and/or registered to do business. In the latter
case, such notices and/or demands shall be deemed to have been duly made and given
upon date of delivery if delivered in person or by an overnight delivery or postal
service, upon receipt if delivered by facsimile the receipt of which is confirmed
by Affiliate, or upon the expiration of five days after the date of posting if mailed
by certified mail, postage prepaid.
h. Waiver. No failure or delay by any party hereto to exercise any
right or remedy hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any right or remedy by any party preclude any other or further
exercise thereof or the exercise of any other right or remedy. No express
waiver or assent by any party hereto to any breach of or default in any term or
condition of this Agreement shall constitute a waiver of or an assent to any succeeding
breach of or default in the same or any other term or condition hereof.
i. Assignment; Successors. Affiliate may not assign or transfer this
Agreement, or any of its rights or obligations hereunder, without the prior written
consent of Company. Any attempted assignment in violation of the foregoing
provision shall be null and void and of no force or effect whatsoever. Company
may assign its rights and obligations under this Agreement, and may engage subcontractors
or agents in performing its duties and exercising its rights hereunder, without
the consent of Affiliate. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and permitted
assigns.
j. Limitation of Actions. No action, regardless of form, arising by
reason of or in connection with this Agreement may be brought by either party more
than two years after the cause of action has arisen.
k. Electronic Execution. This Agreement is being signed electronically,
and the records kept by Commission Junction, Inc., of such execution shall be presumed
accurate unless proven otherwise.
l. Force Majeure. Neither party is liable for any default or delay
in the performance of any of its obligations under this Agreement (other than failure
to make payments when due) if such default or delay is caused, directly or indirectly,
by forces beyond such party’s reasonable control, including, without limitation,
fire, flood, acts of God, labor disputes, accidents, interruptions of transportation
or communications, supply shortages or the failure of any third party to perform
any commitment relative to the production or delivery of any equipment or material
required for such party to perform its obligations hereunder.
m. No Third-Party Beneficiaries. Except as otherwise expressly provided
in this Agreement, nothing in this Agreement is intended, nor shall anything herein
be construed to confer any rights, legal or equitable, in any Person other than
the parties hereto and their respective successors and permitted assigns.
Notwithstanding the foregoing, Affiliate acknowledges and agrees that Microsoft,
and any supplier of third-party supplier that is identified as a third-party beneficiary
in the Service Description, is an intended third-party beneficiary of the provisions
set forth in this Agreement as they relate specifically to its products or services
and shall have the right to enforce directly the terms and conditions of this Agreement
with respect to its products or services against Affiliate as if it were a party
to this Agreement.
n. Government Regulations. Affiliate may not export, re-export, transfer
or make available, whether directly or indirectly, any regulated item or information
to anyone outside the United States in connection with this Agreement without first
complying with all export control laws and regulations which may be imposed by the
United States government and any country or organization of nations within whose
jurisdiction Affiliate operates or does business.
o. Marketing. Affiliate agrees that during the term of this Agreement
Company may publicly refer to Affiliate, orally and in writing, as an Affiliate
partner of Company. Any other public reference to Affiliate by Company requires
the written consent of Affiliate.
p. Telephone Monitoring. To ensure Company’s customers receive
quality service, Company randomly selects phone calls for monitoring. These
calls, between Company’s customers and employees, are evaluated by supervisors.
This is to guarantee that prompt, consistent assistance and accurate information
is delivered in a professional manner. Company has been properly licensed
by the Georgia Public Service Commission to use such service observing equipment.
13. International Provisions.If Affiliate maintains an office
outside the United States, conducts business with Persons other than U.S. citizens,
or at any time offers to resell Services to any Person that is not a U.S. citizen,
the following provisions will apply:
a. Affiliate will comply with all laws relating to the conduct of business practices
that prohibit any gratuities or inducements. Affiliate acknowledges that Company
is subject to certain United States laws, including but not limited to the Foreign
Corrupt Practices Act of 1977 and any amendments thereto, which apply to activities
carried out on Company's behalf outside the United States. Affiliate agrees
neither to take nor omit to take any action if such act or omission might cause
Company to be in violation of any such laws. Upon written notice from Company,
Affiliate shall provide such information as Company may reasonably consider necessary
to verify compliance by Affiliate with the provisions of this Section.
b. The Services may require a license for export from the U.S. Government that requires
advance disclosure of the ultimate consignee and all parties to the sale, and prohibits
diversion, transshipment, or re-exportation out of the United States contrary to
U.S. law and regulations by any party. Affiliate agrees to furnish all documentation
required by the U.S. Government in connection with obtaining any required export
license, and agrees that unauthorized diversion, transshipment or re-exportation
of the Company’s Services in violation of the export license or any applicable
law shall not be permitted.
c. The parties hereby exclude any application of the United Nations Convention on
Contracts in the International Sale of Goods, the 1974 Convention on the Limitation
Period in the International Sale of Goods, and the Protocol amending the 1974 Convention,
done at Vienna April 11, 1980.
14. Definitions. For purposes of this Agreement, the following
terms have the meanings specified below:
a. “Company Qualifying Plan” means those plans which Company
has designated as being eligible for payment of the Payment pursuant to this Agreement.
b. “Links” as used herein means those banner
advertisements, text links or other material, as provided by Company to Affiliate
through Commission Junction, Inc.
c. “Order” means an order submitted to Company for Services,
through Company’s website.
d. “Person” means any individual, partnership, joint venture,
corporation, limited liability company, trust, unincorporated association or organization,
or government or any agency or political subdivision thereof.
e. “Proprietary Information” means all technical, business and
other information of a party (i) that is not generally known to the public, (ii)
that derives value, economic or otherwise, from not being generally known to the
public or to other Persons who can obtain value from its disclosure or use, and
(iii) which information is subject to efforts that are reasonable under the circumstances
to maintain the secrecy thereof.
f. “Services” means the Web hosting service or other Company
products provided by Company in response to an Order whereby Company provides products
or services as specified in the applicable Service Description.
g. “Service Description” means the applicable documents made
available by Company to describe the applicable Services at the time the Order is
accepted by Company.