1 Parties to this Agreement
1. "You", "Your" refers to each and every affiliate or sub-affiliate of the WHMCS Services affiliate program. Participation in the program constitutes full and complete acceptance of the terms and conditions set forth herein.
2 WHMCS Services Responsibilities
2.1 Coded URL. Upon your acceptance, WHMCS Services will provide you with a URL coded to specifically identify you which will allow you to create a link to the WHMCS Services web site. You may post this link in any location, as many times as you like subject to the remaining terms of this agreement regarding acceptable links.
2.2 Tracking. WHMCS Services agrees to track the customers referred to WHMCS Services via the link provided to you for that purpose. WHMCS Services will pay you a commission for each such referral made in compliance with this agreement pursuant to the commission schedule and the terms set forth in this affiliate agreement.
3 Affiliate Responsibilities
3.1 Minimum Age. You agree that you are 18 years of age or older on the date that you first approve the terms hereof. You agree that you are in a jurisdiction where participation in the WHMCS Services affiliate program does not violate any law, ordinance, regulation or standard.
3.2 Operative Link. You agree to take full responsibility for ensuring the proper and continuing operation of your coded URL. You agree that you will notify WHMCS Services if your coded URL ceases to function or ceases to function properly.
3.3 Representations. You agree that you will not make any representations, promises, warranties or other statements about WHMCS Services or the WHMCS Services web site, products or policies other than as may be expressly approved in writing by WHMCS Services or as other wise provided to you by WHMCS Services for that purpose.
3.4 Link. You may use the coded URL provided by WHMCS Services via the available WHMCS Services Link Library or in any other form you wish provided that your use of the URL is not in any way disparaging of WHMCS Services or otherwise not appropriate or acceptable in WHMCS Services sole opinion and judgment. You may not violate any copyright, trademark or other intellectual property right of WHMCS Services or any other party. You may not violate the WHMCS Services General Terms of Service.
3.5 Amendments. You agree that this agreement may be amended by WHMCS Services at any time without notice to you. You agree to keep advised of any changes to this agreement by checking the WHMCS Services web site on a periodic basis.
3.6 Customers of WHMCS Services. WHMCS Services will have the sole right and responsibility to service all customers secured through your coded URL. All dealings with customers for web hosting and related services shall be directly and solely between customer and WHMCS Services. WHMCS Services 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.
4.1 Commission Rate. Commissions are paid on a monthly basis for each new account purchased via your coded URL subject to the terms and conditions set forth herein. There will be no obligation to pay any other commission. The current commission rate for a first tier affiliate sale is 20% or 25%.
4.2 Payment Date. WHMCS Services will pay to you all qualified commissions on or before the end of the month following the date upon which the commission becomes a qualified commission.
4.3 Payment Form. All payments will be made exclusively via PayPal or your account as your credit balance on your account. We do not pay with checks, Bank Wire transfers nor any other payment method. WHMCS Services is not responsible for any loss or damage sustained as the result of any dealings with or otherwise arising out of disputes with PayPal.
5 Ownership and Licenses
5.1 Property Ownership. Each party to this agreement 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.
5.2 License. WHMCS Services grants you as an affiliate a revocable, non-exclusive, worldwide License to use, reproduce and transmit the WHMCS Services logos, trademarks and service marks on your site and only your site for the sole purpose of facilitating a link between your site and WHMCS Services to accomplish the purpose and intent of this affiliate agreement. You may also use the links and images located in the link library prepared specifically for that purpose subject to the same terms and conditions. You may not otherwise use, copy, distribute, change, modify, or otherwise alter any such property. This License is neither assignable nor transferable.
5.3 Cease use upon demand. You agree to immediately cease the use of any mark upon request made by WHMCS Services to the email address provided by you and maintained on file for you by WHMCS Services. You agree to immediately cease the use of any link created by you to WHMCS Services upon request by WHMCS Services to the email address provided by you and maintained on file for you by WHMCS Services.
6.1 Effect upon Commission. Either party may terminate this agreement at any time upon notice in writing to the other party. Other than any termination under paragraph 6.2 herein, any commission which has become a qualified commission as of the date of such termination will be paid post termination. Any commission which is not a qualified commission as of the date of notice of termination shall not thereafter become a qualified commission.
6.2 Breach of this agreement. The breach of this agreement, or any provision thereof, knowingly or otherwise, willful or otherwise, is grounds for immediate suspension or at the sole option of WHMCS Services termination of this agreement in it's entirety.
6.2.1 Suspension. Suspension under this paragraph shall mean the withholding of all commission payments qualified or otherwise until such breach is cured. Suspension if not cured within a reasonable time as determined by WHMCS Services will become a termination under 6.2 as of the date of the initial suspension.
6.3 Survival. Upon termination of this agreement all rights and licenses granted by this agreement are immediately revoked. Paragraph 3.6, section 6 (Termination), Paragraphs 7.1 through 7.14 (inclusive) and 7.16 - 7.19 shall survive such termination and remain in full force and effect.
7.1 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 parson assenting to the terms of this agreement has the full binding authority of the entity purportedly bound.
7.2 Non-Infringement. You agree that in the course of any performance under this agreement or otherwise with respect to any dealings between you and WHMCS Services that you will not infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy.
7.3 Violation of Law. That you will not violate any applicable law, ordinance, regulation or standard.
7.4 Terms of Service. You agree that in the course of any performance under this agreement or otherwise with respect to any dealings between you and WHMCS Services that you agree to be bound by the WHMCS Services General Terms of Service which are incorporated herein as though set forth at length herein.
7.5 Unsolicited Email. You agree that in the course of any performance under this agreement or otherwise with respect to any dealings between you and WHMCS Services that you will not use or otherwise permit the use of unsolicited commercial email (a.k.a. SPAM) in relation to the WHMCS Services Affiliate program.
7.6 Defamation/Libel. You agree that in the course of any performance under this agreement or otherwise with respect to any dealings between you and WHMCS Services that you will not transmit any information which is or might be considered to be defamatory or libelous.
7.7 Decency. You agree that in the course of any performance under this agreement or otherwise with respect to any dealings between you and WHMCS Services that you will not transmit any information which is or might be considered to be lewd, pornographic or obscene;
7.8 Unfair Competition. You agree that in the course of any performance under this agreement or otherwise with respect to any dealings between you and WHMCS Services that you will not violate any laws regarding unfair competition (including but not limited to New York Business and Professions Code section 17200), anti-discrimination or false advertising or the WHMCS Services General Terms of Service.
7.9 Promote Violence. You agree that in the course of any performance under this agreement or otherwise with respect to any dealings between you and WHMCS Services that you will not take any action which might promote violence or contain hate speech.
7.10 Damage WHMCS Services. You agree that in the course of any performance under this agreement or otherwise with respect to any dealings between you and WHMCS Services that you will not take any action that would in any way damage WHMCS Services or otherwise compromise it's servers or equipment including utilize or otherwise transmit at any time contain viruses, Trojan horses, worms, time bombs, cancel bot or other similar harmful or deleterious programming routines.
7.11 No Automatic Links. You agree not to utilize any link that is or can be initiated automatically without the user clicking on the link.
7.12 WARRANTY DISCLAIMER. YOU ACKNOWLEDGE AND AGREE THAT ANY SERVICES OR MATERIALS PROVIDED BY WHMCS SERVICES PURSUANT TO THIS AGREEMENT ARE PROVIDED AS IS, WITH ALL FAULTS AND AS AVAILABLE, AND THAT WHMCS Services MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS, ON ITS OWN BEHALF ON AND BEHALF OF ITS SUPPLIERS, DISTRIBUTORS AND LICENSORS, ANY WARRANTIES AS TO THE USEFULNESS, ACCURACY, RELIABILITY OR EFFECTIVENESS OF ANY SERVICES OR MATERIALS PROVIDED 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, WHMCS Services DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT WILL WHMCS SERVICES BE LIABLE TO YOU FOR ANY SERVICE FAILURE, DISRUPTION, DOWNTIME OR INCORRECT LINKAGE UNDER THIS AGREEMENT.
7.13 LIMITATION OF LIABILITY. IN NO INSTANCE SHALL WHMCS Services BE LIABLE TO YOU FOR LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION, NEGLIGENCE), ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER OR NOT WHMCS SERVICES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE THAT COMMISSIONS AGREED UPON IN THIS AFFILIATE AGREEMENT ARE BASED IN PART UPON THESE LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. Notwithstanding the foregoing, this section shall not limit either party liability to the other for (i) willful or malicious misconduct; (ii) gross negligence; (iii) indemnification under Section 7.12 or (iv) either party's liability for death or personal injury or their own acts of fraud.
7.14 Indemnification. You agree to indemnify, defend and hold harmless WHMCS Services and its affiliates, directors, officers, employees and agents, harmless of and from any and all liability, losses, damages, injuries or expenses (including attorney's fees and Services witness charges) arising out of any claimed or alleged action or inaction toward any third party whether such claimed or alleged action or inaction arises out of a claim of misuse of copy written materials, License violation, domain misuse, trademark misuse or any active or passive negligence.
7.15 Independent Contractors. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
7.16 Choice of Laws /Venue. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of New York. Any action to enforce this Agreement shall be brought in the federal or state courts located in the County of New York.
7.17 Severability. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
7.18 Integration. This agreement constitutes the entire understanding of the parties and revokes and super cedes any and all prior agreements and is intended to be a full and complete expression of the agreement between the parties. This agreement shall not be modified except in writing by the posting of a new agreement by WHMCS Services on the WHMCS Services web site.
7.19 Use constitutes Signature. Your agreement to the terms set forth herein is manifested by any participation in the WHMCS Services affiliate program including the submission of the affiliate application form and the collection of any commission under this agreement. This agreement may be modified, amended, altered or otherwise changed by WHMCS Services without notice to any other party other than changing the agreement itself made available by WHMCS Services to the affiliates on the WHMCS Services web site.