This Affiliate Agreement ("Agreement") contains the complete terms and conditions that apply to your participation in the SecureNetShop.com Affiliate Program ("Program"). By signing up for the Program, you are confirming that you have read this Agreement and that you agree to be bound by its terms and conditions. SecureNetShop.com and Affiliate may hereinafter be referred to individually as a "Party" or collectively as the "Parties."
When interpreting this Agreement, (a) words in the singular shall include the plural and words in the plural shall include the singular, (b) words in any gender shall include the other gender, and (c) words or phrases shall have the same meaning, whether written in upper or lower case letters.
"Affiliate", "You" means (and "Your" refers to) the business, individual, or entity participating in the Program.
"We", "Us" means (and "Our" and "Ours" refer to) SecureNetShop.com.
"Service" means the Shopping Cart Service offered by SecureNetShop.com.
"Link" means a specially coded URL that will be used to identify customers you have referred and will establish a link from your web site to ours.
"Referred Customer" means a customer who clicks through a Link to our web site and purchases Service using our automated ordering system.
"Active Account" means a Service account we establish for a Referred Customer that is paid in full and is not cancelled.
"Qualified Sale" means a sale for the purchase or renewal of an Active Account. Qualified Sales do not include sales from add-on services or overage charges.
1. Our Responsibilities
1.1. License. We will provide you with Links, images and text (collectively "Licensed Materials") for the sole and exclusive purpose of promoting the Service. We grant you a limited, non-exclusive, non-transferable license to display Licensed Materials on your web site, e-mail, newsletter and/or other promotional materials, subject to the terms of this Agreement. We reserve the right to monitor your web site at any time to determine if you are in compliance with the terms of this Agreement.
1.2. Tracking. We agree to track customers via the Links provided to you for that purpose. When someone clicks on a Link, a cookie will be set in their browser with your affiliate ID. During that visit to our web site or any later visit (within 1 year), when a purchase is made, the customer will be identified as one in which you referred (based on the existence of the cookie). We are unable to control if cookies are deleted or rejected from web browsers.
1.3. Reporting. During the term of this Agreement, we will provide you with a unique ID and password which will permit access to our affiliate administration site where you may review and modify your affiliate account information and view commission reports. You may change your password at any time. You agree to maintain the security of your password, as required to ensure secure access to your affiliate account. You are solely responsible, and we are in no way responsible, for ensuring the confidentiality and secrecy of your password. If you forget or lose your password or require a new password, you agree to notify us (pursuant to Section 13.9) and comply with all security measures and procedures we may implement in an effort to verify your identity.
1.4. Order Fulfillment. We will be solely responsible for processing every order placed by Referred Customers. We will be responsible for order entry, payment processing, provision of customer accounts, cancellations, refunds, and related customer service for such sales of Service.
2. Affiliate Responsibilities
2.1. Accurate Information. By accepting the terms and conditions of this Agreement, you (a) represent and warrant that you are 18 years of age or older, and (b) agree to provide us with true, accurate, current and complete information, including, but not limited to, your name, company name, mailing address, web site address, e-mail address, and telephone number, as prompted during the Program sign up process, and agree to maintain and update this information to keep it true, accurate, current and complete.
2.2. Operative Links. In utilizing the Links, you agree that you will (a) cooperate fully with us in order to establish and maintain the Links, (b) ensure that Links are formatted correctly, and (c) notify us (pursuant to Section 13.9) if Links cease to function or cease to function properly.
2.3. Use of Licensed Materials. You agree not to (a) display Licensed Materials on any web page or document (in digital or print form) that contains, in our sole judgment, infringing or illegal content, or promotes violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, (b) alter or modify Licensed Materials in any way without our written permission, (c) send unsolicited commercial e-mail messages (excluding messages to recipients who consent to receipt of such messages), (d) send e-mail messages with false, altered or anonymous sender, domain name or Internet protocol (IP) information, or (e) engage in any conduct that we determine, in our sole discretion, may be harmful to our reputation or operations, our affiliates, or related entities.
2.4. Representations. You agree not to (a) make any representations, promises, warranties or other statements about us, our web site, services or policies other than as may be expressly approved in writing by us or as otherwise provided to you by us for that purpose, (b) make a representation, either expressed or implied, that visitors to your web site are visiting our web site, (c) place any page of our web site in a frame on your web site, (d) register, utilize or sell a domain name containing the word "securenetshop", (e) utilize an e-mail address containing the word "securenetshop", (f) copy all or any portion of our web site without our prior written consent, (g) imply or suggest that we endorse or sponsor your web site or any of your products or services or any products and services offered by any third party.
3.1. Commission Determination. We will credit a commission toward your affiliate account for each Qualified Sale based on the number of Active Accounts we have on file at the time of each Qualified Sale. The "Affiliate Commission Schedule" noted on our website (www.securenetshop.com) will be used to determine the commission rate that will apply to each Qualified Sale.
Commission rates will apply to the net sale amount of each Qualified Sale (defined as the gross sale amount less discounts). To allow time for refunds, commissions are held for 30 days ("30 day holding period"). A "Qualified Commission" is a commission from a Qualified Sale that has not been reversed or refunded during the 30 day holding period. We reserve the right to provide a customized Affiliate Commission Schedule and/or waive the 30 day holding period for any affiliate, at any time and at our sole discretion.
3.2. Commission Payment. All Qualified Commissions owed to you shall become payable on the 1st of each month, unless the total Qualified Commissions do not equal or exceed the minimum payout amount ($5 if your mailing address is within the USA and $20 if your mailing address is outside the USA), in which case your Qualified Commissions will be carried over to the next month. Qualified Commissions are paid in United States Dollars (USD) in the form of a company check and will be sent within the first 5 business days of each month, via the United States Postal Service, to the address you provided when signing up for the Program, or as maintained by you within our affiliate administration site. We may reverse any commission, and subtract said commission from subsequent payments to you, if we process a refund or receive a chargeback on a Qualified Sale from which you previously received a commission.
3.3. Commission Fraud. We reserve the right to investigate all commissions for possible fraud and withhold indefinitely any commissions owed to you during such investigations. If you are found to have committed fraud in connection with commissions you are owed or have received, you will be liable to us for any and all damages that we suffer as a result of such actions. You will also be responsible for returning to us all commissions received for fraudulent/falsified Referred Customers, and we will not hesitate to pursue all legal causes of action against you to the fullest extent possible under the law. Any incidence of fraud constitutes a breach of this Agreement.
4. Ownership and Property Rights.
4.1. Property. Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.
4.2. Customers. All Referred Customers are our sole property and responsibility. All dealings with Referred Customers for Service and related services shall be directly and solely between us and Referred Customers. We shall have the right and obligation to determine all pricing and product offerings and shall have the right to make any changes thereto without notice to affiliate.
5. Term and Termination
5.1. Term. The term of this Agreement will commence on the date you sign up for the Program and shall continue until terminated by either party.
5.2. Termination by You. You may terminate this Agreement at any time, for any reason, by providing notice to us pursuant to Section 13.9.
5.3. Termination by Us. We may terminate this Agreement at any time, if we believe, in our sole discretion, that you are in default or substantial breach of this Agreement ("Breach of Agreement"). We will notify you, providing reasonable detail regarding the Breach of Agreement, pursuant to Section 13.9. We may, at our sole discretion, allow you to cure Breach of Agreement within ten (10) business days following such breach, during which time this Agreement shall remain in full force and effect. If we determine, at any time and in our sole discretion, that you are unable to cure Breach of Agreement within 10 days of such breach, we shall terminate this Agreement due to Breach of Agreement.
5.4. Effect of Termination. You are only eligible to earn commissions during the term of this Agreement. Upon termination of this Agreement for any cause or reason whatsoever (a) all licenses granted by this Agreement are immediately revoked and you shall immediately cease using and remove all Licensed Materials from your web site and any other of your materials, (b) we shall make a Final Payment to you for any outstanding Qualified Commissions generated by Qualified Sales that occurred prior to such termination. In the case of Breach of Agreement, we may, at our sole discretion, revoke Final Payment. You shall have no further rights or obligations under this Agreement, except obligations incurred prior to the termination of this Agreement, or as expressly set forth herein.
5.5. Survival. The provisions of sections 2.4, and 4 through 13 of this Agreement shall survive the termination of this Agreement for any cause or reason whatsoever.
6. Limitation of Liability. WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
7. Indemnification. You hereby agree to defend, indemnify and hold harmless SecureNetShop.com and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (a) any claim that our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (b) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (c) any claim related to your web site, including, without limitation, development, operation, maintenance and content therein not attributable to us.
8. Disclaimer of Warranties. YOU ACKNOWLEDGE AND AGREE THAT ANY PRODUCTS OR SERVICES WE PROVIDE PURSUANT TO THIS AGREEMENT ARE PROVIDED 'AS IS,' WITH ALL FAULTS AND AS AVAILABLE, AND THAT WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS, ON OUR OWN BEHALF AND ON BEHALF OF OUR SUPPLIERS, DISTRIBUTORS AND LICENSORS, ANY WARRANTIES AS TO THE USEFULNESS, ACCURACY, RELIABILITY OR EFFECTIVENESS OF ANY SERVICES OR MATERIALS WE PROVIDE HEREUNDER OR THAT THE SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR FREE, OR AVAILABLE THROUGH ANY PARTICULAR METHOD OF DISTRIBUTION, OR THAT ANY SERVICES OR MATERIALS PROVIDED PURSUANT TO THIS AGREEMENT WILL WORK WITH EVERY INTERNET BROWSER, OR THAT DEFECTS HAVE BEEN OR WILL BE CORRECTED, OR THAT SUCH SERVICES OR MATERIALS WILL MEET THE NEEDS OF ANY PARTY.
WITHOUT LIMITING THE FOREGOING, AND EXCEPT AS OTHERWISE PROVIDED HEREIN, WE DISCLAIM ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY SERVICE FAILURE, DISRUPTION, DOWNTIME OR LINK TRACKING FAILURE UNDER THIS AGREEMENT.
9. Confidentiality. You acknowledge that by reason of your relationship with us hereunder, you may have access to certain Confidential Information. The term 'Confidential Information' shall include, but is not limited to, any information or materials relating to our customers, business, plans, software technology, marketing strategies, and any modifications to the terms and provisions of this Agreement made specifically for you and not generally available to our other affiliates. You agree not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your own business purposes (including, but not limited to, using Confidential Information to contact Referred Customers) or for any other purpose except and solely to the extent necessary to exercise rights and perform obligations under this Agreement. Confidential Information does not include any data or information which you can prove (a) was in your lawful possession prior to your signing up for the Program, or in the case of Confidential Information that identifies a Referred Customer (e.g., customer's company name), was in your lawful possession prior to the Referred Customer signing up for our Service, (b) is later lawfully obtained by you from a third party not under an obligation of confidentiality, (c) is independently developed by you, or (d) is, or later becomes, available to the public through no breach of an obligation of confidentiality. Notwithstanding the foregoing, you are hereby authorized to deliver Confidential Information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (b) to your accountants or attorneys on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. Your breach of this confidentiality provision would cause us irreparable harm and we shall be entitled to appropriate injunctive relief in the event of such breach.
10. Publicity. You shall not issue any press release nor make any public statement regarding this Agreement (including the terms and existence thereof) or the relationship of the parties without our prior written approval which may be withheld in our sole discretion.
12. Independent Investigation. You acknowledge that you have read this agreement and agree to all its terms and conditions. You understand that we may at any time (directly or indirectly) solicit customer relationships on terms that may differ from those contained in this Agreement or operate web sites that are similar to or compete with your web site. You have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
13.1. Authority. Each party represents to the other that it has full binding authority to enter into this Agreement and in the case of any entity other than an individual that the person assenting to the terms of this agreement has the full binding authority of the entity purportedly bound.
13.2. Non-Infringement. You agree that in the course of any performance under this agreement or otherwise with respect to any dealings between us and you that you will not infringe on SecureNetShop.com's or any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy.
13.3. Taxes. You understand and accept responsibility to file any necessary paperwork or tax forms with the appropriate agency for any and all payments made as a result of the Program and the terms and conditions set forth herein.
13.4. Modifications. We reserve the right to modify this Agreement at any time and in our sole discretion. Notifying you (pursuant to section 13.9) or posting changes to this Agreement on our web site is considered sufficient notice to you of a modification to the terms and conditions of this Agreement. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Program following our changes to this Agreement will constitute binding acceptance of the change.
13.5. Entire Agreement. This Agreement constitutes the complete understanding and agreement between the parties and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties.
13.6. Relationship of Parties. The relationship of the parties to this Agreement shall be solely that of independent contractors. Nothing contained in this Agreement is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor.
13.7. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Florida, USA without reference to its conflicts of laws principles. Any litigation or arbitration between us and you will take place in Orlando, Florida, and you irrevocably consent to personal jurisdiction and venue in that jurisdiction.
13.8. Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed, or if any provision is held invalid by a court of competent jurisdiction, such provision shall be deemed to be restated to reflect as nearly as possible our original intentions, and the remainder of this Agreement shall remain in full force and effect. There shall be no presumption for or against us as a result of our being the principal drafter of this Agreement.
13.9. Notices. Any notices required or permitted to be given hereunder shall be by e-mail or in writing.
13.9.1. Notices We Send to You. We will use the contact information provided by you, during the Program sign up process, or as maintained by you within our affiliate administration site, in the sending of notices to you. We reserve the right to determine which form of communication is most appropriate when sending notices to you (e-mail or in writing). All notices we send to you in writing shall be deemed delivered five (5) business days after deposit in the United States mail. All notices we send to you via e-mail shall be deemed delivered upon the sending of such notices.
13.9.2. Notices You Send to Us. Any notice from you to us shall be addressed to: P.O. Box 410474, Melbourne, FL 32941-0474; by e-mail, firstname.lastname@example.org. All notices you send to us in writing shall be in the form of registered or certified mail, return receipt requested, postage prepaid and shall be deemed delivered upon confirmation of receipt. All notices you send to us via e-mail shall be deemed delivered upon confirmation of receipt by a member of our staff.
13.10. Assignment. You may not assign or delegate you rights or obligations under this Agreement, either in whole or in part, without our prior written consent.
13.11. Force Majeure. We shall not be liable for any failure or delay in the performance of our obligations hereunder if such failure or delay is caused, directly or indirectly, by circumstances beyond our reasonable control, including but not limited to, interruptions of electrical power or other utility service, failures of telecommunications or internet service providers, internet disruptions (including, without limitation, denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God. We will make reasonable efforts to reduce to a minimum the effect of any Force Majeure and resume to full performance as soon as possible.
13.12. Waiver. No failure or delay by any party 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 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.
13.13. Captions. The section headings and captions contained herein are for reference purposes and convenience only and shall not in any way affect the meaning or interpretation of this Agreement.