Affiliate Program Terms and Conditions
1. Affiliate Program
a. These Affiliate Program Terms and Conditions ("Terms and Conditions") govern the respective rights and obligations of Website Pros, 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") as more particularly described in this description of the Program (the “Program Description”) whereby Affiliate will refer to Company potential leads (“Leads") through Links featured on the Affiliate’s website or in subscription e-mail newsletters (“Affiliate Site").
b. Company in its sole discretion may modify the Terms and Conditions or the content, terms and conditions of the Affiliate Program from time to time. Such modifications will be effective upon posting to Company's website. Should any additional or modified provisions of this Agreement be found to be unenforceable or unconscionable, parties expressly intend that the Agreement on the date of Affiliate’s registration bind both Company and the Affiliate.
c. Affiliate acknowledges that Affiliate has read and agrees to be bound by the following Terms and Conditions as well as the Program Description. Affiliate has provided certain identifying information about Affiliate through an online application process (the “Affiliate Application”) which information is incorporated herein by this reference. Affiliate acknowledges that it is a prerequisite to participation in the Affiliate Program that Affiliate have and maintain an active PayPal account.
2. Affiliates
a. Each month Company will pay Affiliate for each Qualified Lead submitted by Affiliate at the rate set forth in the Program Description (the “Payment”) by depositing such amount in Affiliate’s PayPal Account. Company will deduct from the Payment any amounts attributable to Payments previously made by Company in respect of Qualified Leads that were subsequently determined to be Excluded Qualified Leads. If Company has received Leads from the Affiliate that, by the last day of the month, have not yet been reviewed for qualification, Company will review and pay any application commissions for such Leads during the next following month.
b. “Qualified Lead” means a Lead that Company believes (a) contains a valid phone number and contact details, (b) consists of an individual homeowner in the United States who has a good faith desire to be contacted for home services, (c) is requesting home services that are within the scope of those supported by the Company, (d) has not previously been sent (and will not in the future be sent) to any other referral marketing service or used to generate referrals for any other purpose. “Excluded Qualified Lead” means any Qualified Lead that the Company determines (a) does not represent a real homeowner living in the United States, (b) does not represent a homeowner with a good faith desire to be contacted for home services, (c) does not involve home services within the scope of those supported by the Company, or (d) when contacted, claims that the home services have already been performed or are no longer desired.
c. If any any time the amount due to Company in respect of Excluded Qualified Leads exceeds the amount of the Payment, Affiliate must immediately remit payment to Company in an amount sufficient to bring Affiliate’s Account to a zero balance. Unpaid amounts due the Company will bear interest at the rate of 1.5% per month.
d. 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 the Affiliate Program, including any income, sales, or use tax on profits which may be levied against it.
f. 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.
3. 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 and Affiliate will notify Company of any change in Affiliate’s mailing address, telephone, e-mail or other contact information; (b) Affiliate shall comply at all times with all local, state and federal laws, rules and regulations relating or applying to its performance pursuant to these Terms and Conditions including without limitation, any laws, rules or regulations governing the collection and use of data, e-mail marketing and the use of contextual advertising; (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 Leads or other transactions to be made that are not in good faith, including but not limited to, by means of any device, program, robot, i-frames, hidden frames, JavaScript 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, chat rooms, guest books, IRC channels or through similar Internet resource unless previously approved by the Company in writing; (g) Affiliate will place Links such that it is unlikely that they will mislead Leads and such that it is reasonably likely that such Links will deliver bona fide Leads; (h) Affiliate will not establish or cause to be established any promotion that provides any rewards, points, or compensation for Leads or that allows third parties to place Links on the third party’s website or in its e-mails unless previouisly approved by the Company in writing; (i) Affiliate will not use this program to purchase Services for Affiliate use or resale; (j) Affiliate shall not authorize or permit any third party to directly or indirectly generate clicks, orders or other actions through any automated, deceptive, fraudulent or other invalid means, including without limitation through repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests; (k) neither Affiliate nor any third party acting on Affiliate’s behalf including without limitation any of Affiliates partners or affiliates shall modify or supplement such advertisements or the Links without Company’s prior written approval; and (l) neither Affiliate nor any third party acting on Affiliate’s behalf including without limitation any of Affiliates partners or affiliates, shall promote the Links in any way that includes or through any medium that constitutes pornographic or similarly adult-themed material, get rich quick programs, gambling, pyramid schemes, contains any viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, unsolicited commercial e-mail messages, or any goods or services which involve deceptive marketing or commercial practices misleading, libelous, defamatory, obscene, abusive, violent, bigoted, hate-oriented, illegal, contains content targeted at children, offers any illegal good or service which is based outside of the United States or links to any website that does so. In the event of a violation of this provision, Affiliate’s participation in the Affiliate Program will be terminated and Affiliate will forfeit the right to all commissions payable including any commissions arising as a result of actions prior to such termination.
4. 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.
5. 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. In the event of a violation of this provision, Affiliate’s participation in the Affiliate Program will be terminated and Affiliate will forfeit the right to all commissions payable including any commissions arising as a result of actions prior to such termination.
6. 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, Referrer 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 Referrer 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.
7. 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, COMPANY 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 COMPANY 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. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
8. 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 8(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 9.
9. 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.
10. 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.
11. Miscellaneous.
a. Termination. Affiliate may terminate Affiliate’s participation in the Affiliate Program at any time by giving written notice to the Company. Such cancellation will be effective one (1) business day following Company’s receipt of written notice. Company may terminate the Affiliate Program or Affiliate’s participation in the Affiliate Program (i) immediately by giving notice to Affiliate, if Company determines in good faith that Affiliate is in breach of these Affiliate Program Terms and Conditions; (ii) by giving Affiliate one (1) business day’s notice; or (iii) as otherwise outlined in these Terms and Conditions. Upon termination of Affiliate’s participation in the Affiliate Program for any cause or reason whatsoever, neither party shall have any further rights or obligations under this these Terms and Conditions, except for as outlined in those provisions intended to survive termination. Upon termination, Affiliate will immediately discontinue the use of all Links, Offers and promotion of the Services.
b. 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, employer and employee, partners or joint venturers. Neither party has 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 and neither party may represent that it has such authority.
c. 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 Florida, 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 FLORIDA STATE OR FEDERAL COURT LOCATED IN ST. JOHNS COUNTY, FLORIDA OR THE NORTHERN DISTRICT OF FLORIDA, 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.
d. Headings. The headings herein are for convenience only and are not part of this Agreement.
e. Entire Agreement; Amendments. These Terms and Conditions, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and these Terms and Conditions constitute the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between these Terms and Conditions and any purchase order, service order, work order, confirmation, correspondence or other communication of Affiliate or Company, the terms and conditions of these Terms and Conditions shall control. No additional terms or conditions relating to the subject matter of these Terms and Conditions 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 the Company may modify these Terms and Conditions at any time by posting changes to the Terms and Conditions published on Company’s website.
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 upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses as designated on Company’s website for the giving of notice. All notices and demands required or contemplated hereunder by Company to Affiliate shall be in writing via overnight delivery, postal mail, facsimile or e-mail to the address, e-mail address, or facsimile number as designated in the Affiliate Control Panel or to any 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, by an overnight delivery or postal service or via e-mail, 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 Company 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 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 products or software 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.
12. 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.
13. Definitions. For purposes of this Agreement, the following terms have the meanings specified below:
a. "Affiliate Control Panel" means the control panel through which Company presents Offers for Affiliates and the Action Affiliate or Affiliate’s Leads must complete in order for Affiliate to earn the Payment.
b. "Lead" means each referral of a position who has completed a request to obtain more information about the Services as outlined in the Program Description.
c. "Links" as used herein means those banner advertisements, text links or other material, as provided by Company to Affiliate.
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 services provided by Company to Leads pursuant to the Affiliate Program.