- ACCEPTANCE OF TERMS
This Affiliate Program Agreement (the "Agreement") is a legal agreement and contains all of the terms and conditions between eSitesBuilder.com ("eSitesBuilder.com") and you, together with any company or other business entity you are representing, if any, (collectively, the "Affiliate") who is participating in the eSitesBuilder Affiliate Program (the "Program"). BY REGISTERING FOR THIS PROGRAM AFFILIATE AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. If you do not agree to the terms of this Agreement do not register for the Program.
By accepting the terms of this Agreement, Affiliate agrees that eSitesBuilder.com may change the terms of this Agreement in its sole discretion provided that eSitesBuilder.com provides Affiliate with notice of any such change. If Affiliate does not agree to the changes proposed by eSitesBuilder.com, or to any terms in this Agreement, Affiliate's sole and exclusive remedy is to cancel Affiliate's participation in the Program. Notwithstanding the foregoing, eSitesBuilder.com reserves the right to terminate, cancel, suspend or refuse access to the Program to anyone in its sole discretion. Unless explicitly stated otherwise, any new features or products that change, augment or enhance the current Program shall be subject to this Agreement.
- SUBSCRIBER REFERRAL AND REGISTRATION
eSitesBuilder Link. Affiliate may be eligible for certain commissions for every Subscriber (as defined in Section 5.1 below) Affiliate refers to eSitesBuilder. To be eligible for such commissions, each referral must originate from a specially-coded eSitesBuilder Link. For purposes of this Agreement, "eSitesBuilder Link" means a visible graphic or textual indication which, when selected by an end user, directs the end user's Internet browser connection to a eSitesBuilder-specified page or file via a URL and which establishes a direct connection between the browser and the eSitesBuilder-specified page or file. Affiliate shall place the eSitesBuilder.com Link on the Affiliate website or otherwise provide the eSitesBuilder.com Link to a respective Subscriber, which will allow eSitesBuilder.com to track any person, entity or otherwise who clicks through the eSitesBuilder.com Link to register for the eSitesBuilder.com Services.
Linking to eSitesBuilder. The necessary electronic graphic artwork and corresponding links to eSitesBuilder's website and all HTML thereto for the eSitesBuilder Link shall be available to Affiliate via the Reporting Site. Such link may only be in the form of text, a button, a banner or any other format provided by eSitesBuilder.com. Affiliate shall not modify or alter the eSitesBuilder Link without prior written consent of eSitesBuilder.com. The HTML for such link will also include a special promotion identifier that enables the tracking and reporting of all Subscribers acquired through the eSitesBuilder Link. Affiliate is responsible for integrating the eSitesBuilder Link into Affiliate's website properly and for providing the eSitesBuilder Links to Subscriber in the proper format, which includes ensuring that, as between the eSitesBuilder Links and the eSitesBuilder website, each of the eSitesBuilder Links properly utilizes the aforementioned special identifier link formats. eSitesBuilder.com SHALL NOT BE LIABLE TO AFFILIATE WITH RESPECT TO AFFILIATE'S FAILURE TO PROPERLY INTEGRATE THE ESITESBUILDER LINK, INCLUDING TO THE EXTENT THAT SUCH FAILURE MAY RESULT IN ANY REDUCTIONS OF COMMISSION FEES (AS DEFINED BELOW) THAT WOULD OTHERWISE BE PAYABLE TO AFFILIATE UNDER THIS AGREEMENT.
Use and Display of 2Checkout Marks. Affiliate acknowledges and agrees that it will not (a) use or display any 2Checkout.com, Inc. trademarks, logos, and copyrighted material; or (b) otherwise infringe on 2Checkout.com's intellectual property rights.
Tracking and Reporting. For the purposes of this Agreement, tracking and reporting will be provided by Be Free, the third party provider responsible for serving eSitesBuilder.com Links and providing tracking, reporting and payment in connection with this Agreement. During the term of this Agreement, Affiliate will be provided a unique ID and password which will permit Affiliate access to password-protected Web pages located at http://my.esitesbuilder.com ("Reporting Site") so that Affiliate may review and modify Affiliate's account and payment information and receive statistics regarding the number of Subscribers that originated from the eSitesBuilder.com Links. The reports available on the Reporting Site will also detail the Commission Fees that are due to Affiliate in accordance with the Fee Schedule (as defined below). The form, content and timing of the foregoing reports may vary from time to time in eSitesBuilder.com's sole discretion. Affiliate agrees and acknowledges that the statistics and reports provided by Be Free at the Reporting Site are the official, definitive and final measurements of the number of Subscribers that have originated from the eSitesBuilder.com Link as well as the fees payable to Affiliate from eSitesBuilder.com pursuant to the terms of this Agreement.
- LICENSE RIGHTS.
License Grant of eSitesBuilder Link. Subject to all the terms and conditions of this Agreement, eSitesBuilder.com hereby grants to Affiliate a restricted, non-exclusive, non-transferable license to use and publicly display the eSitesBuilder Link, solely for their receipt, access, use and viewing in the manner described herein. eSitesBuilder.com retains all rights, title, and interest in and to all of the copyrights, patent rights, trademark rights and other proprietary rights to the eSitesBuilder Links pursuant to this Agreement.
eSitesBuilder Link License Restrictions. In addition to any other restrictions herein on the use of the eSitesBuilder Link, Affiliate agrees to the following: (i) Affiliate shall not access, transmit, display or otherwise make available (or allow end users or any other third party to transmit or make available) eSitesBuilder Link to any third party, except as explicitly provided herein; (ii) Affiliate shall not alter, delete or modify any attributions included within the eSitesBuilder Link; (iii) eSitesBuilder.com shall have the right, in its reasonable discretion and upon notice to Affiliate, to require Affiliate to immediately cease any and all use of any particular eSitesBuilder Link: and (iv) Affiliate may not impose any separate charges or fees for use or access to the eSitesBuilder Link.
License Grant of eSitesBuilder.com Marks. Subject to all the terms and conditions of this Agreement, eSitesBuilder.com hereby grants Affiliate a nonexclusive, non-transferable license to use the eSitesBuilder.com trademarks, logos, and copyrighted material ("eSitesBuilder.com Marks") solely on the Affiliate's website and solely in connection with this Agreement. Affiliate hereby acknowledges and agrees that (i) the eSitesBuilder.com Marks are owned solely and exclusively by eSitesBuilder.com or its subsidiaries, (ii) except as set forth herein, Affiliate has no right, title or interest in or to the eSitesBuilder.com Marks; and (iii) all use of the eSitesBuilder.com Marks by Affiliate shall inure to the benefit of eSitesBuilder.com and its subsidiaries. Affiliate agrees that it shall not engage, participate or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the image and/or reputation of eSitesBuilder.com or of any eSitesBuilder.com Mark.
Use and Display of eSitesBuilder.com Marks. Affiliate acknowledges and agrees that the presentation and image of eSitesBuilder.com Marks should be uniform and consistent with respect to all services, activities and products associated with the eSitesBuilder.com Marks. Accordingly, Affiliate agrees to use the eSitesBuilder.com Marks solely in the manner in which eSitesBuilder.com shall specify from time to time in eSitesBuilder.com's sole discretion.
Use and Display of 2Checkout.com, Inc. Marks. Affiliate acknowledges and agrees that it will not (a) use or display any 2Checkout.com, Inc. trademarks, logos, and copyrighted material; or (b) otherwise infringe on 2Checkout.com's intellectual property rights.
Marketing Practices. With respect to soliciting Subscribers and marketing the eSitesBuilder Services, all advertising and promotional materials are subject to the terms of this Agreement. Affiliate further agrees: (i) to be solely responsible for all expenses and fees incurred in connection with the participation in the Program; (ii) use best efforts to successfully market, advertise and sell eSitesBuilder Services during the term of this Agreement; (iii) not engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to eSitesBuilder.com or its products or services; (iv) not make any representations, warranties, or guarantees on behalf of eSitesBuilder.com, or otherwise concerning eSitesBuilder Services that are inconsistent with or in addition to any such representations, warranties, or guarantees made by eSitesBuilder.com; and (v) use the then-current name as used by eSitesBuilder.com (but will not represent or imply that Affiliate is an employee, part of, or affiliated with eSitesBuilder.com).
- AFFILIATE REPRESENTATIONS AND WARRANTIES
Affiliate represents and warrants that:
- Affiliate has the full and legal power and authority to enter into this Agreement, and/or to perform its obligations hereunder.
- By entering into this Agreement, Affiliate does not violate any other agreement by which Affiliate is bound.
- With respect to any performance hereunder, Affiliate shall comply with good business practices and all applicable laws, regulations and rules of any government body or agency or other competent authority.
- Affiliate shall not make any representations regarding the association of 2Checkout.com with either eSitesBuilder.com or Affiliate.
- Affiliate will comply with the applicable then-current Member Agreement.
- Any website created or built by Affiliate shall not include (i) child pornography or obscene content, (ii) illegal content, or (iii) any other inappropriate materials.
- PAYMENT TERMS
Payment Terms. Subject to the terms and conditions of this Agreement and pursuant to the then-current Fee Schedule set forth on the eSitesBuilder website (the "Fee Schedule"), Affiliate will be paid a Commission Fee ("Commission Fee") on a monthly basis by 2Checkout.com for each person who registers for the eSitesBuilder subscription based service and agrees to the eSitesBuilder Member Agreement (the "Subscriber"). For Affiliate to earn a Commission Fee for a Subscriber, the Subscriber must have i) followed the eSitesBuilder Link that is provided to Subscriber by Affiliate or is otherwise located on the Affiliate's website to the eSitesBuilder website; ii) the Subscriber must have successfully subscribed for eSitesbuilder Service(s); and iii) eSitesBuilder.com must have received valid payment from Subscriber. Payment shall occur within forty-five (45) days from the end of each month in which Affiliate earns a Commission Fee. Notwithstanding the above, for each month that Affiliate does not earn at least Forty-five Dollars ($45.00) in Commission Fees, payment shall not be issued to Affiliate for that month but shall be deferred until the cumulative amount is at least Forty-five Dollars ($45.00). eSitesBuilder.com shall not be liable with respect to any Commission Fees not received by Affiliate as a result of Affiliate's failure to notify eSitesBuilder.com of a change in Affiliate's principle place of address.
Taxes. Excluding any taxes based on eSitesBuilder.com's income, Affiliate shall be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority based on Affiliate's revenue or income under this Agreement or any Client Agreement.
Fraud and Fraudulent Activity. eSitesBuilder.com shall have no obligation to pay Commission Fees to Affiliate for Subscribers if it is determined in good faith by eSitesBuilder.com that there has been fraudulent activity on the Affiliate's website. For exemplary purposes only without limitations, if an unreasonable number of Subscribers have originated from the eSitesBuilder Links on Affiliate's website during any period of time, then eSitesBuilder.com shall have the right to examine Affiliate's records to the extent necessary to determine whether any fraudulent activity has occurred involving the eSitesBuilder Links on Affiliate's website and/or Affiliate's account at the Reporting Site. Furthermore, eSitesBuilder.com shall have no obligation to pay commission fees to Affiliate in the event of Subscriber obtaining a charge back or refund or if eSitesBuilder.com determines in good faith that Subscribers created their accounts solely for the purpose of aiding and abetting Affiliate to increase commission amounts without the intent of being a long term eSitesBuilder Subscriber.
- CONFIDENTIAL INFORMATION
Each party agrees that it may have access to confidential or proprietary, technical or business information of the other party and/or its suppliers (collectively, "Confidential Information"). For the purposes of this Agreement, eSitesBuilder.com's Confidential Information shall include the information of its third party provider, 2Checkout.com, Inc. Each party will maintain the strict confidentiality of the Confidential Information of the other party and will not disclose the Confidential Information to any third party and shall exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own Confidential Information (in no event less than reasonable care). Furthermore, neither party will use the Confidential Information for any purpose except those contemplated by this Agreement.
- NO DISPARAGEMENT
Affiliate shall not disparage eSitesBuilder.com, or any eSitesBuilder.com Mark and/or eSitesBuilder.com and eSitesBuilder products or services thereof, or place any disparaging content on the Affiliate's or Clients website(s).
Affiliate acknowledges and agrees that it shall not attempt to switch, divert, or convert a Subscriber from the eSitesBuilder Services to any product or service that is competitive to eSitesBuilder's products or services.
eSitesBuilder.com reserves the right at anytime and from time to time to modify, discontinue, temporarily or permanently, the Program (or any part thereof) with or without notice. Affiliate agrees that eSitesBuilder.com shall not be liable to Affiliate or to any third party for any modification, suspension or discontinuance of the Program. In the event that Affiliate does not agree with any such modification, Affiliate shall terminate its participation in the Program, which shall be Affiliate's sole and exclusive remedy.
Term and Termination. Unless terminated earlier as provided herein, this Agreement shall remain in full force unless otherwise terminated by eSitesBuilder.com. Either party may terminate this Agreement at any time upon providing notice to the other party.
Effect of Termination. In the event that this Agreement is terminated for any reason, Affiliate will only be eligible for Commission Fees earned as a result of Subscribers who were acquired up to the date of termination or expiration. Upon termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate and Affiliate will immediately cease use of, and remove from the Affiliate's website, all eSitesBuilder.com marks, eSitesBuilder Materials, and eSitesBuilder Links. Termination or expiration of this Agreement shall have no effect with respect to any rights or obligations existing under a Client Agreement. Except to the extent expressly provided to the contrary in this Agreement, any rights to Commission Fees earned, any right of action for breach of the Agreement prior to termination, and the following provisions shall survive the termination of this Agreement: Sections 6,7,8,11,13,14. Furthermore, upon termination or expiration of this Agreement and upon eSitesBuilder.com's request, Affiliate shall either return or destroy any Materials or other Confidential Information provided to Affiliate by eSitesBuilder.com.
Affiliate shall defend and indemnify at its expense, and hold eSitesBuilder.com and each of its affiliates, directors, officers, agents, employees and sublicensees harmless from losses, damages, liabilities, costs and expenses, including without limitation, any proceeding, investigation or claim, to the fullest extent permitted by law arising out of or in connection with: (a) Affiliate's performance under this Agreement or any Client Agreement; (b) an assertion that the information, content or other materials or services provided or made available by Affiliate infringe any copyright, patent, trademark or other property right of any third party; (c) any breach by Affiliate of its obligations, representations and warranties under this Agreement; or (d) any claim related to the content on Affiliate's website or content provided by Affiliate to a Client for a Client Site. Affiliate shall notify eSitesBuilder.com promptly in writing of any claim or proceeding involving eSitesBuilder.com.
- WARRANTY DISCLAIMER
eSitesBuilder.com SHALL NOT BE LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT, OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES IN CONNECTION WITH THIS AGREEMENT, EVEN IF eSitesBuilder.comHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL eSitesBuilder.com BE LIABLE TO AFFILIATE OR ANY THIRD PARTY IN AN AGGREGATE AMOUNT GREATER THAN THE AMOUNT PAID TO AFFILIATE BY eSitesBuilder.com HEREUNDER.
- LIMITATION OF LIABILITY
eSitesBuilder.com SHALL NOT BE LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT, OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES IN CONNECTION WITH THIS AGREEMENT, EVEN IF eSitesBuilder.com HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL eSitesBuilder.com BE LIABLE TO AFFILIATE OR ANY THIRD PARTY IN AN AGGREGATE AMOUNT GREATER THAN THE AMOUNT PAID TO AFFILIATE BY eSitesBuilder.com HEREUNDER.
Affiliate agrees that any dispute or claim arising out of or related to the website design service or this Agreement, or the interpretation, making, performance, breach or termination thereof, shall be finally settled by binding arbitration in Santa Clara County, California under the American Arbitration Association Rules by one arbitrator appointed in accordance with said Rules. The proceedings shall be conducted and all evidence shall be offered in the English language. Affiliate agrees that any claim against eSitesBuilder.com must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary, otherwise such claim will be barred forever.
- INDEPENDENT CONTRACTOR
The parties are independent contractors and no agency, partnership, franchise, joint venture or employment relationship is intended or created by this Agreement. Neither party has the power or authority as agent, employee or any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. Affiliate is solely responsible for all of its employees or agents and its labor costs and expenses arising therewith. eSitesBuilder.com will not furnish or otherwise reimburse Affiliate for any office space, office or business equipment, clerical support, telephone, travel, or any other expense which Affiliate may incur as a result its performance under this Agreement.
This Agreement may not be assigned by either party without the prior written
consent of the non-assigning party. Notwithstanding the foregoing, eSitesBuilder.com may
assign this Agreement to any acquirer of all or of substantially all of its equity
securities, assets or business related to the subject matter of this Agreement.
Any attempted assignment in violation of this Agreement shall be null and void
and without effect. This Agreement sets forth the entire understanding and agreement
of the parties with respect to the subject matter hereof and supersedes all any
and all oral or written agreements or understandings between the parties as to
the subject matter of this Agreement and may be changed only by a writing signed
by both parties. In the event that any of the provisions of this Agreement shall
be held by a court or other tribunal of competent jurisdiction to be unenforceable,
such provisions shall be limited or eliminated to the minimum extent necessary
so that this Agreement shall otherwise remain in full force and effect and enforceable.
Headings and captions are for convenience only and are not to be used in the interpretation
of this Agreement. The parties acknowledge and agree that this Agreement may be
entered into electronically, and without the necessity of written signatures.
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