This Affiliate Agreement (“Agreement”) constitutes a binding contract between you, an individual user (“You”), and Webshare Software, Company, a Delaware corporation (“Company”). All capitalized terms used in this Agreement but not defined in this Agreement will have the meanings ascribed to them in our Terms and Conditions located at https://www.webshare.io/terms (“TOC”). The TOC is hereby incorporated into this Agreement. If there is any conflict or inconsistency between this Agreement and the TOC, then this Agreement will control to the extent of that conflict or inconsistency.
BY ACCEPTING THIS AGREEMENT THROUGH THE REQUIRED PROCESS OR ACCESSING OR PARTICIPATING IN THE PROGRAM (DEFINED BELOW), YOU REPRESENT AND WARRANT THAT: (1) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND AGREE TO BE BOUND LEGALLY BY THIS AGREEMENT; (2) YOU ARE EITHER AT LEAST 18 YEARS OF AGE OR HAVE THE CONSENT OF A PARENT OR LEGAL GUARDIAN WHO IS AT LEAST 18 YEARS OF AGE TO PARTICIPATE IN THE PROGRAM; AND (3) IF YOU ARE PARTICIPATING IN THE PROGRAM ON BEHALF OF AN ENTITY, THEN YOU HAVE THE AUTHORITY TO AND HEREBY DO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH THIS AGREEMENT, THEN YOU MUST REJECT THIS AGREEMENT THROUGH THE REQUIRED PROCESS.
1. Scope. Company engages entities and individuals to refer new customers to Company by making available on their web properties a unique URL that Company provides and that routes users to websites where those customers can purchase access to Company products and services (“Program,” and such unique URL, the “Company URL”). This Agreement governs your participation in the Program.
2. Engagement; Referral Process.
(a) You will use commercially reasonable efforts to use each Company URL to route prospective customers to Company websites.
(b) When seeking customer referrals and otherwise performing under this Agreement, you will: (i) not engage in any deceptive, misleading or unethical practices; (ii) not make any representations or warranties concerning the Company or its products or services, except as expressly set forth in any marketing materials furnished by the Company; (iii) conduct business in a manner that reflects favorably at all times on the good name, goodwill, and reputation of Company; and (iv) comply with all applicable federal, state, and local laws and regulations. You will not have the authority, express or implied, to make any commitment or incur any obligations on behalf of Company other than making referrals as set forth in this Agreement.
(c) The prices, terms, and conditions under which Company offers or sells any products or services to customers will be determined by Company in its sole discretion. Nothing in this Agreement will obligate the Company to offer or sell any products or services to, or to consummate any transaction with, any customer.
3. Marketing Materials; Mark.
(a) Company may, at its sole expense and discretion, provide you with marketing materials concerning the Company products and services (collectively, “Marketing Materials”) that may be beneficial in assisting you to perform your obligations under this Agreement.
(b) Company retains all right, title, and interest in and to all such Marketing Materials.
(c) Company hereby grants to you, during the term of this Agreement only, a non-exclusive, non-transferable (except under Section 8), non-sublicensable, royalty-free, and worldwide license to use the trademarks and logos that Company specifically identifies in writing (“Marks”) in any and all media solely to perform activities that are permitted by this Agreement, subject to: (i) Company’s then-current quality control and usage guidelines that Company may provide to you from time-to-time; and (ii) Company’s prior written approval of all uses of the Marks.
(d) Any goodwill in the Marks resulting from your use of the Marks inures solely to the benefit of Company and will not create any right, title, or interest for you in the Marks, and you hereby assign to Company all of your rights in and to the Marks.
(i) “Company Revenue” means the amount that Company receives from each Qualified Referral for such Qualified Referral’s first purchase of access to any Company products or services, exclusive of: (1) any credits, discounts, refunds, or rebates; (2) governmental charges and duties, including, without limitation, all applicable taxes; and (3) uncollectible accounts determined in accordance with reasonable accounting practices.
(ii) “Ineligible Referral” means any prospective customer where: (1) another Company distribution partner has already referred such prospective customer to Company; (2) Company has a proposal or quote out to the prospective customer; or (3) the prospective customer has an existing account for access to any Company products or services.
(iii) “Qualified Referral” means a prospective customer, other than an Ineligible Referral, who satisfies both of the following requirements: (1) the prospective customer purchases access to any Company products or services within 30 days of when the prospective customer clicks on a Company Link; and (2) the last hyperlink the prospective customer clicked on before purchasing access to the Company products or services was a Company Link.
(i) Company will pay you a fee that is equal to a percentage of the Company Revenue. Company will display that fee to you during the registration process to participate in the Program. Company can change that fee at any time its sole discretion.
(ii) Company will pay you all fees owed within forty-five (45) days following the end of each calendar month during which those fees accrued. If Company issues a refund to any Qualified Referral for a purchase of Company products or services after thirty (30) days from the date that Qualified Referral made payment to Company but before Company pays any amounts owed to you, then Company will apply a credit to your account in the amount owed to you. That credit will be paid together with the next fee payment Company is obligated to make to you under this Agreement for a Qualified Referral. If Company is not obligated to make any such additional payment to you for a period of at least ninety (90) days from the date the credit is issued to your account, then that credit will expire.
(iii) Company will not be able to pay you any amounts owed unless you comply with all Company policies and requirements pertaining to the payment process (including, without limitation, any know your customer requirements). Without limiting the foregoing, Company will pay all amounts owed directly to your PayPal account if: (1) the first and last name associated with your account with us is the exact same as the first and last name associated with your PayPal account; and (2) you verify your PayPal account through the required process.
5. Confidentiality. You agree that any non-public information or material about Company’s current or future business or technology that may be made available to you in connection with the Program (collectively, the “Confidential Information”), constitute and embody valuable Company trade secrets, and Company exclusively owns all such Confidential Information. You may use the Confidential Information only as necessary to exercise your rights under this Agreement and you may not disclose any Confidential Information to any third party without Company’s prior written consent. You agree that you will protect the Confidential Information from unauthorized access, use and disclosure in the same manner that you would use to protect your own confidential and proprietary information of a similar nature and in no event with less than a reasonable degree of care.
6. Independent Contractor. You are an independent contractor of Company, and this Agreement will not be construed to create any association, partnership, joint venture, employee, or agency relationship between you and Company for any purpose. You have no authority (and will not hold yourself out as having authority) to bind Company and you will not make any agreements or representations on Company’s behalf without Company’s prior written consent.
7. Term and Termination.
(a) The term of this Agreement commences upon your acceptance of this Agreement through the required process or you otherwise participate in the Program and is coterminous with the TOC unless this Agreement is terminated earlier as set forth below.
(b) This Agreement will automatically terminate if you breach this Agreement. In addition, Company may, at its sole discretion, terminate this Agreement, or suspend or terminate your access to any portion of the Program, at any time for any reason or no reason, with or without notice. You may terminate this Agreement at any time by contacting customer service at firstname.lastname@example.org.
(c) Upon any termination of this Agreement: (i) you must permanently destroy all tangible embodiments of Confidential Material within your possession or control (and certify in writing the same has been completed upon Company’s request); and (ii) the following Sections, and all defined terms required to interpret those Sections, will survive: 1, 2(b) and (c), 3(b) and (d), 5, 6, 7(c), 8, 9 and 10.
(d) Company determines and controls the availability and nature of the Program in its sole discretion. Accordingly, you agree that Company may, in its sole discretion, terminate, suspend, modify, or make the Program more or less available without any notice or liability to you.
8. Restricted Transfers. You will not assign, transfer, delegate, or subcontract any of your rights or obligations under this Agreement whatsoever. Any purported assignment or delegation in violation of this Section will be void. Company may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement without your prior written consent. This Agreement will inure to the benefit of and be binding upon each of the parties and each of their respective permitted successors and permitted assigns.
9. Limitation on Liability. WITHOUT LIMITING ANYTHING SET FORTH IN THE TOC AND TO THE FULLEST EXTENT PERMITTED BY LAW: (A) COMPANY WILL NOT BE LIABLE TO YOU FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF BUSINESS; AND (B) UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE TYPE OF ACTION OR CLAIM, EXCEED THE TOTAL AMOUNT THAT COMPANY PAID YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE DISPUTE FIRST AROSE.
10. Modifications. Company reserves the right to change this Agreement on a going-forward basis at any time. Please check this Agreement periodically for changes. If a change to this Agreement materially modifies your rights or obligations, Company may require that you accept the modified terms to continue to participate in the Program. Material modifications are effective upon your acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 10, this Agreement may be amended only by a written agreement signed by authorized representatives of the parties to this Agreement.