Community Architect Web Hosting Affiliate Agreement
This Community Architect Web Hosting Affiliate Agreement (“Agreement”) contains the terms and conditions between United Online Web Services, Inc. a Delaware corporation, located at 1253 North Research Way, Suite Q-2500, Orem, UT 84097 (“UOWS”), and the individual or organization (“You”, “Your” and “Yours”) participating in the Community Architect Premium Affiliate Program (the “Program”).
1. Enrollment in the Program. To enroll in the Program, You must successfully complete the sign-up process located on the website for the Program (the “Program Website”). By completing the sign-up process, You agree to be bound by the terms and conditions contained in this Agreement. The “Effective Date” of this Agreement shall be the date on which You complete the sign-up process on the Program Website. By entering into this Agreement, in addition to transactions entered into by You on Your own behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your agent. You also agree to be bound by the terms of this Agreement for transactions entered into by anyone who uses the account You hereby establish with UOWS, regardless of whether the transactions were on Your behalf.
2. Services to be Provided to You. Throughout the term of this Agreement, UOWS will provide You with certain services (“Your Services”) that will enable You to offer to customers (“End Users”) through a website operated by You (“Your Website”) web hosting, domain registration and other related services (“End User Services”) in accordance with this Agreement. The specific form and function of Your Services will be determined by UOWS in its sole discretion, but shall generally include access to certain administrative tools available on the Program Website (“Your Tools”) and the tracking and reporting of certain End User activity. UOWS reserves the right to modify Your Services from time to time, in its sole discretion. You shall be responsible for all usage and activity on Your Tools and for loss, theft or unauthorized disclosure of Your username or password used to access Your Tools. You shall provide UOWS with prompt written notification of any known or suspected unauthorized use of Your Tools or breach of the security of Your Tools.
3. End User Services. UOWS shall be responsible for providing End User Services, including the provisioning of End User orders, payment processing, cancellations, renewals, and billing and customer support. However, each End User must properly complete the application forms designated by UOWS and agree and adhere to all of the terms, conditions and policies of use for End User Services as established by UOWS from time to time, in its sole discretion, before UOWS will be obligated to provide End User Services to that End User. UOWS reserves the right to immediately terminate any End User that fails to adhere to the terms, conditions and policies of use for End User Services or under any other circumstances allowed pursuant to UOWS' agreement with that End User.
4. Licenses.
(a) UOWS hereby grants to You a non-exclusive, revocable, non-transferable (except as provided in Section 13(a)), non-sublicenseable, royalty-free license to use and display the trademarks, service marks and logos provided to You directly by UOWS ("UOWS Trademarks") on Your Website for the sole purpose of promoting End User Services as described in Section 2. All uses of UOWS Trademarks shall be subject to UOWS's prior written approval. You shall not modify the UOWS Trademarks and shall comply with all reasonable guidelines for the UOWS Trademarks that UOWS may from time to time provide. Except for the license set forth in this Section 4(a), You have no right, title or interest in any of the UOWS Trademarks or any other intellectual or proprietary rights of UOWS, including without limitation its copyrights, patents and trade secrets, and all use of the UOWS Trademarks shall inure to the benefit of UOWS. The foregoing license shall terminate automatically upon the termination of this Agreement.
(b) You hereby grant to UOWS a non-exclusive, revocable, non-transferable (except as provided in Section 13(a)), non-sublicenseable, royalty-free license to use and display the trademarks, services marks and logos provided to UOWS directly by You (“Your Trademarks”) for the sole purpose of co-branding the End User Services. The exact nature of the use of Your Trademarks for such co-branding shall be determined by UOWS in its sole discretion; provided, however, that UOWS shall not modify Your Trademarks and shall comply with all reasonable guidelines for Your Trademarks that You may from time to time provide. Except for the license set forth in this Section 4(b), UOWS have no right, title or interest in any of Your Trademarks or any other intellectual or proprietary rights of You, including without limitation Your copyrights, patents and trade secrets, and all use of Your Trademarks shall inure to the benefit of You. The foregoing license shall continue for a reasonable period of time after the termination of this Agreement to allow for the smooth transition away from any co-branding of the End User Services.
5. Your Responsibilities.
(a) You acknowledge and agree that, when marketing End User Services, You must do so in a manner that UOWS, in its sole discretion, deems acceptable, including without limitation not misrepresenting the nature of End User Services and avoiding the use of adware, spyware, browser helper objects, hijackers, viruses and Trojans. You further agree to maintain a privacy policy, conspicuously posted on Your Website, that complies with all applicable laws and regulations, is commercially reasonable based on prevailing industry standards, and fully and accurately discloses Your collection and use of customer information.
(b) You are solely responsible for ensuring that all of the content contained on Your Website (“Your Content”) complies with all applicable laws and regulations and does not infringe or violate any right of any third party. UOWS may immediately cease performing under this Agreement, or may terminate this Agreement, if, in its sole discretion, it believes that any hypertext links from Your Website to third party websites, or any of Your Content, violates the UOWS Acceptable Use Guidelines, which are incorporated herein by this reference, any law or regulation, or any third party rights, or may otherwise expose UOWS to civil or criminal liability or public ridicule or otherwise may damage the business or reputation of UOWS or any UOWS Affiliate (as defined in Section 5(d) below). UOWS will not be obligated to monitor Your Website or Your Content or to exert any editorial control over Your Website, nor will UOWS have any authority to exert editorial control over Your Content on Your Website.
(c) You agree to comply with all laws and regulations governing the practice of email communications, including without limitation the CAN SPAM Act of 2003 or any successor legislation. UOWS does not condone “spamming” activity. Should you market End User Services via email marketing, you are obligated to abide by all applicable laws and regulations and industry best practices, including without limitation providing customers with the ability to opt-out of further marketing communications from You. Further, You agree to include the following disclaimer on each such email: “This email was not sent by or on behalf of United Online Web Services, Inc., and United Online Web Services shall not be responsible or liable to any party for its content or method of distribution.”
(d) In regards to any advertising that You may do to promote End User Services, You agree that (i) You will comply with all applicable laws and regulations relating to Your promotional activities, (ii) should You register keywords for inclusion on search engine listings, You will not register any UOWS Trademarks or any trademarks or service marks of any entity controlling, controlled by or under common control of UOWS (each a “UOWS Affiliate”), (iii) You will not register any domains that are identical or similar to (including misspellings of) any UOWS Trademarks or any trademarks or services marks of any UOWS Affiliate or any domains similar to (including misspellings of) those registered by UOWS or any UOWS Affiliate, and (iv) You will not position Yourself in any ad as an official, authorized, certified or sponsored partner of UOWS.
6. Fees.
(a) UOWS shall pay You a certain share of Net Sales (as defined below) of End User Services from End Users whose registration originated from Your Website and who remit full payment to UOWS for the End User Services purchased (“Revenue Share”). For the purposes of this Section 6(a), “Net Sales” shall mean the revenue actually recognized by UOWS (regardless of when payments are received from End Users) from sale transactions of End User Services, less any refunds, rebates, returned checks, fraudulent transactions and credit card charge backs. Your applicable Revenue Share for any given month shall be provided to You on the Program Website through Your Tools. You acknowledge that UOWS reserves the right to adjust the rates and calculation methodology of the Revenue Share from time to time, with or without notice to You.
(b) You are required to provide UOWS with a completed IRS Form W-9 immediately after enrollment in the Program, and UOWS shall have no obligation to pay You any Revenue Share until it receives this form. Subject to the foregoing, UOWS shall pay You the Revenue Share within thirty (30) days after the end of each calendar month in which the Revenue Share is earned; provided, however, if the Revenue Share earned in a given month does not exceed Fifty Dollars ($50.00) or such higher dollar increment that you may choose, as allowed by UOWS in its sole discretion, then You shall not be entitled to receive the Revenue Share generated in such month until such time that Your aggregate unpaid Revenue Share exceeds such amount. Any payment of the Revenue Share due hereunder is contingent upon You providing UOWS true and correct information (such as contact information) when you enroll in the Program and keeping that information up-to-date. You acknowledge and agree that the data maintained by UOWS shall govern the computation of any Revenue Share due to You.
7. End User Data. In regards to the End User Services (and not any other services that You may provide to your customers outside the scope of this Agreement), all End Users shall be customers solely of UOWS, UOWS shall own all rights to all customer information and related data collected in connection with such customer relationship (the “End User Data”), and You shall not make any representations to the contrary. In addition, You shall not: (a) disclose, display, sell, lease or otherwise transfer any End User Data collected from or provided by End Users that click on, register for or otherwise indicate interest in any End User Services, in whole or in part, in any form (including without limitation reports, analyses, or compilations), to any third party in such a manner as to allow a third party to identify or target such End Users as potential or existing UOWS customers; and (b) use any End User Data to target advertising or other marketing communications to potential or existing End Users, whether for You or on behalf of a third party. Without limiting the generality of the foregoing, You agree to not specifically solicit End Users for the purpose of inducing them to switch to a competitor of UOWS or any UOWS Affiliate.
8. Representations and Warranties.
(a) You represent and warrant that You have the power and authority to enter into and perform Your obligations under this Agreement and that the act of You entering into this Agreement, and the performance of Your obligations hereunder, do not and will not violate any applicable law or regulation or violate or infringe upon any proprietary, contract, moral, privacy or any other right of a third party. If You are an individual, You represent and warrant that You were at least eighteen (18) years of age on the Effective Date of this Agreement.
(b) YOUR SERVICES AND END USER SERVICES ARE PROVIDED “AS IS”, AND UOWS MAKES NO, AND HEREBY SPECIFICALLY DISCLAIMS ALL, WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UOWS DOES NOT MAKE ANY REPRESENTATION THAT YOUR SERVICES OR END USER SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND UOWS SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY SUCH INTERRUPTIONS OR ERRORS.
9. Term and Termination. The term of this Agreement will commence on the Effective Date and will continue indefinitely thereafter until terminated pursuant to this Section 9 or as otherwise expressly provided in this Agreement. Either party may terminate this Agreement at any time, without cause, upon thirty (30) days' prior written notice to the other party. In addition, UOWS may immediately terminate this Agreement upon notice of Your breach of this Agreement. UOWS shall also have the right to terminate this Agreement if Your Website fails to generate at least one (1) new End User in any consecutive six (6) month period. Upon termination of this Agreement, any permissions granted by UOWS to You (including without limitation the license contained in Section 4) will terminate, and You must immediately cease promoting End User Services on Your Website or elsewhere. In addition, UOWS's obligation to pay You any Revenue Share shall cease immediately upon the termination of this Agreement. Those provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement (including without limitation Sections 4(b), 7, 8, 9, 10, 11, 12 and 13) shall survive any termination of this Agreement.
10. Confidentiality. For purposes of this Agreement, “Confidential Information” means all information, whether written, verbal, graphic, electronic or any other form, of either party (the “Disclosing Party”), which is disclosed to or observed by the other party (the “Receiving Party”) and is marked at the time of disclosure or observation as being “confidential” or “proprietary” or is of such a nature that a reasonably prudent business person would recognize such information as being confidential. Confidential Information does not include any information that the Receiving Party can prove (a) is or becomes publicly available without breach of this Agreement, (b) was lawfully in the Receiving Party's possession before the Disclosing Party disclosed such information, (c) was received by the Receiving Party from a third party under no duty or obligation to maintain the confidentiality of such information, or (d) was separately developed by the Receiving Party without reliance on any other Confidential Information. The parties agree that the terms and conditions of this Agreement are considered to be Confidential Information of each party. The Receiving Party shall at all times, both during and after the Term, hold the Confidential Information of the Disclosing Party in the strictest confidence, and shall not disclose such Confidential Information to any third party, except to those of its employees, agents, contractors and advisors who have a need to know such Confidential Information in connection with the performance of the Receiving Party's obligations under this Agreement and who have first agreed to be bound by terms and conditions substantially similar to those contained in this Section 10. The Receiving Party shall not use such Confidential Information for any purpose other than as necessary for the performance of its obligations under this Agreement. The Receiving Party will use the same care and discretion to avoid disclosure, publication or dissemination of any Confidential Information received from the Disclosing Party as the Receiving Party uses with its own similar information that it does not wish to disclose, publish or disseminate, but in no event less than a commercially reasonable degree of care. Notwithstanding the foregoing, nothing in this Agreement shall be construed to prohibit any disclosure required under applicable law or regulation or in a judicial or other governmental investigation or proceeding, provided that the Receiving Party gives the Disclosing Party prompt written notice of such disclosure and cooperates with the Disclosing Party in any proper action taken by the Disclosing Party to contest or limit the scope of such disclosure. Neither party shall issue any press releases or announcements, or any marketing, advertising or other promotional materials, related to this Agreement or referencing the other party without the prior written approval of the other party; provided, however, that You agree that UOWS may identify You as a customer in client lists and may use Your name and/or logo solely for such purposes in its marketing materials.
11. Indemnification. You shall defend, indemnify and hold harmless UOWS, all UOWS Affiliates, and their respective directors, officers, employees, contractors, agents, successors and assigns (each an “Indemnified Party”) from and against all third party claims, suits and proceedings, and any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees and court costs) resulting therefrom, arising from or related to (a) Your breach of any of Your duties, obligations, representations or warranties contained in this Agreement, (b) Your willful or negligent acts or omissions, or (c) any of Your Content or other material on Your Website or contained in any advertising promoting End User Services. The Indemnified Party shall be entitled to participate in the defense of such claim, suit or proceeding with counsel of its choice at its expense. You shall not, without the prior written consent of the Indemnified Party, settle, compromise or consent to the entry of any judgment that could impose any liability or obligation upon the Indemnified Party.
12. Limitation of Liability. EXCEPT TO THE EXTENT ARISING PURSUANT TO A BREACH BY YOU OF THE LICENSE GRANTED IN SECTION 4, A BREACH BY EITHER PARTY OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 10, OR YOUR INDEMNIFICATION OBLIGATIONS IN SECTION 11, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, AND THE LIKE, ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING OR ANY OTHER PROVISION HEREIN, UOWS'S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT PAID TO YOU PURSUANT TO THIS AGREEMENT.
13. Miscellaneous.
(a) Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party; provided, however, that UOWS may assign this Agreement to an acquirer of all or of substantially all of its equity securities, assets or business relating to the subject matter of this Agreement or to any UOWS Affiliate without Your consent. Any purported assignment in violation of this Section 13(a) shall be null, void and of no effect.
(b) The parties are independent contractors under this Agreement. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement of any kind for or on behalf of, incur any obligation or liability of, or other otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, joint venture, partnership, franchise, sale representative or employment relationship between the parties or to impose any partnership obligation or liability upon either party. Each party shall bear its own costs and expenses in performing this Agreement.
(c) Neither party shall be liable by reason of any failure or delay in the performance of its obligation hereunder for any cause beyond the reasonable control of such party, including without limitation electrical outages, failure of Internet service providers, default doe to Internet disruption (such as denial of service attacks), riots, insurrection, acts of terrorism, war, fires, flood, earthquakes, explosions or other acts of God.
(d) This Agreement shall be governed by and construed in accordance with the laws of the State of California , without regard to conflicts of laws provisions thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The parties further agree that jurisdiction and venue for any matter arising out of or relating to this Agreement shall be proper only in the state and federal courts located in Los Angeles , California . In the event of any dispute relating to this Agreement, the substantially prevailing party shall the entitled to recover its reasonable attorneys' fees and costs from the other party.
(e) All notices required to be given under this Agreement must be given in writing and delivered either by hand, certified mail (return receipt requested, postage pre-paid), or a nationally-recognized commercial overnight delivery service with tracking capabilities (all delivery charges prepaid), and addressed to You at the address that You provided when you enrolled in the Program or to UOWS at 1253 N. Research Way, Suite Q-2500, Orem, UT 84097, Attention: Legal Department , as the case may be, or such other address as to which the party has notified the other party in accordance with this Section 13(e). Notice shall be deemed effective upon receipt, provided, however, that notice sent by mail shall be deemed received three (3) days after deposit in the U.S. mails unless received sooner.
(f) In the event that any of the provisions of this Agreement shall be held by a court 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.
(g) No waiver of any provision of this Agreement or any rights or obligations of either party hereunder shall be effective except pursuant to a written instrument signed by the party waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
(h) This Agreement contains the entire understanding of the parties hereto with respect to the transactions and matters contemplated herein and supersedes all previous agreements, communications and understandings and course of dealing between the parties concerning the subject matter hereof. This Agreement may be altered, modified or amended by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation a written instrument signed by the parties or through a “click-through” acknowledgement of assents. Notwithstanding the foregoing, UOWS shall have the right to change, modify or amend this Agreement, in whole or in part, by posting a revised Agreement on the Program Website at least thirty (30) days prior to the effective date of such change, modification or amendment. Your continued participation in the Program and use of Your Services after the effective date of such change, modification or amendment shall be deemed to constitute Your acceptance thereof.
