This Referral Agreement (the “Agreement”) is entered into by and you, the Affiliate (“Affiliate”), and Nexcess.net, LLC, a Michigan Limited Liability Company (“Nexcess.net” or “Nexcess” or “Company”) (collectively, the “Parties”).
WHEREAS, Nexcess.net’s website is located at https://www.nexcess.net; and
WHEREAS, this Agreement includes and incorporates the following exhibits by reference: Exhibit A (“Terms and Conditions”); and Exhibit B (“Affiliate Benefits”).
NOW THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, the parties hereby agree as follows:
1. RESPONSIBILITIES OF AFFILIATE.
- Affiliate will prefer Nexcess.net as its web hosting service provider.
- Affiliate agrees not to make any representations, warranties or other statements concerning Nexcess.net, Nexcess.net’s website, any of Nexcess.net’s products or services, or Nexcess.net website policies, except as expressly authorized herein.
- Subject to Section 5 of the Terms and Conditions, the term of the Agreement shall be for one (1) month from Effective Date (“Term”), and shall be renewed automatically for subsequent one (1) month terms. This Agreement may be terminated by either party at any time provided thirty (30) days prior written notice is submitted by the party terminating the Agreement.
- Nexcess.net may, at its sole discretion, provide to Affiliate standard reports which include all information necessary to compute revenue owed to Affiliate, as defined in Exhibit B to this Agreement. Affiliate shall have access to a web based portal to view the data used to calculate revenue owed to Affiliate.
- 3.2. Payment.
- Within ninety (90) days after the end of each calendar month, Nexcess.net shall send to Affiliate payment for the appropriate Revenue Share amount as set forth in Exhibit B.
TERMS AND CONDITIONS
The following Terms and Conditions are deemed incorporated into and part of the Agreement between Affiliate and Nexcess.net to which these Standard Terms and Conditions are attached.
- “Confidential Information” is defined in Section 12 of the Terms and Conditions.
- “Hypertext Link” means a URL (or an icon, logo, highlighted or colored text, figure or image representing a URL or script) on which a user may point and click, or otherwise send a command to accept another website.
- “Intellectual Property” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all laws pertaining to other proprietary rights, and any and all applications renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
- “Customer” means the individual(s) or business Affiliate referred, by Affiliate, to Nexcess.net that purchases services from Nexcess.net.
- “Nexcess.net Content” means content normally available through the Nexcess.net website and any and all Intellectual Property contained therein.
- “Nexcess.net Marks” means the trademarks, service marks, and trade names owned or claimed by Nexcess.net.
- “Referred Visitor” means a web user or Affiliate customer who followed a hypertext link directly from the Site to the Nexcess.net website and whose visit to the Nexcess.net website was recorded in the tracking processes of the Nexcess.net website in sufficient detail to enable tracking for revenue sharing purposes. “Referred” and “Referral” shall have related meanings. Affiliate recognizes and understands the referred visitor may thwart Nexcess.net website tracking by various options and actions advertently or inadvertently set in place by the referred visitor.
- “Hosting Revenue” means monthly revenues directly related to providing web hosting services to customers of Nexcess.net. For the avoidance of doubt, Hosting Revenues shall only encompass the base web hosting package purchased by customers of Nexcess.net. Hosting Revenue does not include services provided outside of a web hosting package including, but not limited to, domain name registration, SSL certificates, consulting, license fees and any other non web hosting related service provided to customers of Nexcess.net.
- “Revenue Share” or “Commission” means the percentage of Hosting Revenue that shall be paid to Affiliate. Revenue Share is the percentage of Hosting Revenue referred to Nexcess.net by the Affiliate. The percentage used to calculate Revenue Share is found in Exhibit B. Revenue Share is calculated based on payments received by Customer to Nexcess.net and exclude any credits issued by Nexcess.net to Customer.
- "Qualified Purchase" means a sale of Nexcess.net Products and Services by Nexcess.net, and is active and paid for at minimum three months, to a Customer which meets the requirements set forth in this Agreement.
- “Site” means the Affiliate's Internet website which displays Nexcess services and/or promotions.
- 2.1. Trademark License.
- During the Term, Nexcess.net hereby grants to Affiliate a worldwide, non-exclusive, royalty-free license to use Nexcess.net Marks on the Site, only to advertise and promote Nexcess.net and any associated advertising inventory, and to fulfill any promotional obligations specified herein. Affiliate’s usage of any materials containing Nexcess.net Marks will be subject to Nexcess.net’s final written approval.
- 2.2. Trademark Restrictions.
- Title to Nexcess.net Marks shall remain with Nexcess.net. Affiliate will use Nexcess.net Marks exactly in the form provided and in conformance with any Nexcess.net usage policies, and use limitations set forth herein. Affiliate shall not use Nexcess.net Marks in combination with any other trademark without the prior written consent of Nexcess.net.
- 2.3. Ownership.
- Affiliate shall retain all right, title and interest, including, but not limited to, all intellectual property rights, in and to its own Intellectual Property. Nothing contained herein shall constitute a grant to Nexcess.net of any right, title or interest in or to the Affiliate, Intellectual Property. Nexcess.net shall not use Affiliate’s name or trademarks without the express written permission of Affiliate. Nexcess.net and its licensors shall retain all right, title and interest, including, but not limited to, all of Nexcess.net’s Intellectual Property, and to the Nexcess.net Content. Except as expressly granted in this Section 2, Affiliate receives no right, title or interest in or to the Nexcess.net Content or any other property owned by Nexcess.net or provided to Affiliate by Nexcess.net.
3. QUALITY CONTROL.
- Nexcess.net, at its sole discretion, shall determine if a Site contains material that infringes the intellectual property rights of a third party, is obscene, defamatory, objectionable or offensive to actual or potential users of the Site or potential customers of Nexcess.net, or otherwise gives rise, or may give rise, to civil or criminal liability (collectively, “Offensive Material”). The parties’ discretion in making such a determination about the presence of Offensive Material may be informed by, among other things, a complaint from a third party. If Nexcess.net determines that the Site contains Offensive Material, Affiliate shall immediately act to remedy the offensive material in a mutually agreeable manner.
- 3.2. Affiliate shall not:
- Use Nexcess.net Marks in any manner that would be offensive to good taste or would injure the reputation of the Nexcess.net and/or of Nexcess.net Marks;
- Use Nexcess.net Marks in any paid advertisements;
- Use the Nexcess.net Marks in connection with any other goods or services, except as permitted hereunder; or
- Register in any country any trademark similar to the Nexcess.net Marks. If Affiliate obtains or makes any such registration or application, such registration or application shall be deemed to be for the benefit of and owned exclusively by Nexcess.net, and Affiliate shall do all acts and things necessary to effectuate Nexcess.net’s rights therein, including, without limitation, immediately assigning any such registrations and applications to Nexcess.net.
- At no time shall Affiliate challenge or contest the validity, ownership, title or registration of Nexcess.net in or to any or all of the Nexcess.net Marks, or any of Nexcess.net’s rights in or to any or all of its Intellectual Property. Upon Nexcess.net’s request, Affiliate shall execute all documents as Nexcess.net may request so as to ensure that all right, title and interest in and to the Nexcess.net Marks or any of its Intellectual Property shall reside with Nexcess.net, subject to this License.
- Affiliate agrees that any goodwill that accrues by or through Affiliate use of the License shall be Nexcess.net’s sole and exclusive property, and shall not in any way accrue to Affiliate. All trademark or other intellectual property rights in and to Nexcess.net’s Intellectual Property and License inure to the benefit of Nexcess.net. Affiliate shall not take any action, whether during the Term or thereafter, to assert any claim in or to any such good will. During the Term and thereafter, Affiliate shall not commit any act or omission that may have the effect of jeopardizing any good will connected with Nexcess.net ’s Intellectual Property or the License.
- Nexcess.net expressly requires you to disclose that there is a “material connection” between you and Nexcess.net anytime you offer an endorsement or testimonial on our services, in accordance with the Federal Trade Commission guidance. Such disclosure must be clear and prominent.
- You should obtain legal advice on how to fully comply with all responsibilities outlined in this Agreement.
- Nexcess.net does not permit any of the following activity to promote services and in the event any such activity does occur, Nexcess.net will immediately terminate this Agreement. The following list is not all encompassing and Nexcess.net reserves the right to terminate this Agreement for any reason we deem necessary:
- Unsolicited mass e-mail solicitations, IRC (Internet Relay Chat) posting or any other form of spam.
- Providing inaccurate or incomplete information to Nexcess.net related to your identity or any other information requested.
- Attempt to cheat, defraud or mislead us in any way.
- Misrepresent to the public the terms and conditions of our websites or your Site.
- Engage in pop-up or pop-under advertisements.
- IFrames may not be used at any time and any sales that occur through hidden IFrames or Cookie Stuffing methods will be considered invalid.
- Nexcess.net encourages the use of Pay Per Click advertising that does not use our name (i.e. Magento hosting reviews); however, Nexcess.net does not permit the use of the Nexcess.net name (or any variant of the name) for Pay Per Click advertising. Some examples of such use include, but are not limited, to the following keywords:
- nexcess.net coupon
- nexcess coupon
- Nexcess.net strictly prohibits Affiliates from claiming they are employed by Nexcess.net, acting on behalf of Nexcess.net or make any other similar claims.
4. REMEDY FOR UNAUTHORIZED USE OF MARKS.
- Affiliate acknowledges that Nexcess.net has no adequate remedy under this Agreement or at law in the event that Affiliate were to use the Nexcess.net Marks in a manner not authorized by this Agreement, and that Nexcess.net would, in such circumstances, be entitled to injunctive or other equitable relief, including interlocutory and preliminary injunctive relief. Affiliate also acknowledges that Nexcess.net’s rights and remedies under this Agreement and under the law are intended to be cumulative, and not mutually exclusive.
5. TAX FORMS AND ADDRESS CHANGES.
- It is your responsibility to provide Nexcess.net with the tax and payment information required to issue a Commission payment to you. If Nexcess.net does not receive the necessary tax or payment information within ninety (90) days of a Commission being earned, Nexcess.net will consider that Commission to be forfeited by the Affiliate and no payment will be issued. Each Affiliate is required to submit a W8/W9 IRS tax form before Nexcess.net will issue any Commission. You are responsible for the payment of all taxes related to the commissions you earn under this Agreement. In compliance with tax laws, Nexcess.net will issue a form 1099. You will be required to provide us with proper address and tax forms (including W8/W9 or other tax forms requested by Nexcess.net).
- Upon expiration or termination of this Agreement, each party shall immediately discontinue the use of the other’s trademarks, content and other Intellectual Property, and Confidential Information as may have been provided hereunder, and all licenses granted hereunder shall terminate unless such licenses are expressly stated as surviving. The parties’ obligations hereunder shall survive any expiration or termination of this Agreement.
- In the event the Affiliate is no longer affiliated with the Customer or Customer notifies Nexcess.net that a new Nexcess.net Affiliate is affiliated with Customer, the Affiliate, which was previously affiliated with Customer, shall no longer be eligible for payment under this Agreement.
7. USER DATA.
- Neither Nexcess.net nor Affiliate will sell, disclose, transfer or rent any demographic information (including, but not limited to, name, email address, mailing address, telephone number, and/or any other identifying information collected) submitted by Referred Visitors (“Individual Data”) to any third party.
8. REPRESENTATIONS AND WARRANTIES.
- Each party represents and warrants to the other party that: (i) such party has the full corporate right, power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound; (iii) when executed and delivered by such party, this Agreement will constitute a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; (iv) such party’s Intellectual Property and any other materials provided by one party to the other party pursuant to this Agreement, does not and will not infringe on any copyright, trademark, patent or any other third party right or violate any applicable law or regulation; and (v) such party acknowledges that the other party makes no representations, warranties or agreements related to the subject matter hereof which are not expressly provided for in this Agreement.
- 9. LIMITATION OF LIABILITY.
- NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTIES ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR CLAIMS AND LIABILITIES ARISING FROM THE INDEMNIFICATION OBLIGATIONS OF SECTION 10. IN NO EVENT SHALL NEXCESS.NET BE LIABLE FOR MORE THAN $1,000.00.
- 10. DISCLAIMER OF WARRANTIES.
- EXCEPT AS PROVIDED FOR HEREIN, EACH PARTY PROVIDES ALL MATERIALS AND SERVICES TO THE OTHER PARTY “AS IS.” EACH PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. EACH PARTY ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN.
- Affiliate shall indemnify, save and hold harmless Nexcess.net, its successors, licensees and assigns, and the officers, directors, employees and agents of all of the foregoing, from and against any and all claims, demands, suits, losses, costs, expenses (including without limitation reasonable attorneys’ fees), damages or recoveries (including without limitation any amount paid in settlement) suffered, made, incurred or assumed by Nexcess.net or its successors, licensees and assigns by reason of the breach or alleged breach of any term or condition of this Agreement, or any warranty, understanding, representation, agreement or certification made or entered into herein or hereunder by Affiliate.
- CONFIDENTIAL INFORMATION. Neither party shall disclose information designated as confidential or proprietary by the other or which otherwise ought reasonably be considered as confidential and proprietary, including, without limitation, certain creative, business, technology, research, customer, pricing and/or other information related to the party seeking to protect such information (“Confidential Information”). Each party shall hold the other party’s Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as required to perform under this Agreement and shall take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. This definition of Confidential Information shall not apply to information which (a) is already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) is lawfully received by recipient from a third party without a restriction on disclosure or use, or (d) is independently developed by recipient without reference to the Confidential Information. The restriction on disclosure shall not apply to Confidential Information which is required to be disclosed by a court or government agency.
- 13.1. Governing Law.
- This Agreement will be governed and construed in accordance with the laws of the State of Michigan without regard to the conflict of laws provisions thereof, and Affiliate consents to jurisdiction and venue in the state and federal courts sitting in the State of Michigan.
- 13.2. Publicity.
- Any public announcement relating to this Agreement will be subject to the parties’ mutual approval, which will not be unreasonably withheld or delayed.
- 13.3. Assignment.
- This agreement may not be assigned, transferred, or sublicensed by either party without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed; provided, however, that no consent shall be required to an assignment of this Agreement in connection with a merger, consolidation, or sale of substantially all of the assets of such party.
- 13.4. Severability.
- If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
- 13.5. Construction.
- The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
- 13.6. Notice.
- Any notice under this Agreement shall be in writing and delivered by overnight courier with signature confirmation to the last known address for each Party or via a ticket in the Nexcess.net client portal. Notices will be sent to a party at its address set forth below or such other address as that party may specify in writing pursuant to this Section.
- 13.7. Entire Agreement Waiver.
- This Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter of the Agreement. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. This Agreement may be changed by Nexcess.net at any time without notice.
REVENUE SHARING TERMS
1. Revenue Share
- Under this Agreement you will be paid a Revenue Share for each Qualified Purchase by a Customer that you refer to Nexcess.net under and in accordance with the terms of this Agreement. Each Customer and each Qualified Purchase must meet the following requirements (the “Requirements”)
- Each Customer must be a qualified Referred Visitor and must register by completing and submitting an order online through the Nexcess.net website.
- Revenue Share may not be paid for a Customer that has transferred from any of our partners or subsidiaries.
- Each Customer must make a Qualified Purchase, and provide a valid payment for the purchased Nexcess.net Products or Services. To generate a Revenue Share for you, each Customer must be an active and qualified customer of Nexcess.net and must be up to date in all payments at the time the Revenue Share is processed and not have been subject to a refund, credit, cancellation, suspension or chargeback.
- Each Customer must sign up in a manner, which in our sole judgment, definitely establishes that the Customer was referred directly from you to Nexcess.net under this Agreement.
- Each Customer must remain in compliance with our Master Services Agreement and other policies that are active at the time the Revenue Share is processed.
- All Revenue Share shall be paid to Affiliate via PayPal unless otherwise agreed by the Parties.
- Revenue Share is calculated only on base hosting services and exclude add-on services such as SSL Certificates, Overage, one-time fees and domain registration fees.
- Nexcess.net reserves the right to withhold Revenue Share for Affiliates who are new to the program or that are deemed to be potentially fraudulent as determined by Nexcess.net in its sole discretion.
- Nexcess.net reserves the right to suspend payment of Revenue Share at any time at its sole discretion.
- Nexcess.net, in its sole discretion, reserves the right to withhold indefinitely any Revenue Share, and/or to reverse, deny or reject any Revenue Share, for any sale which has not been in an approved status in good standing as an account of Nexcess.net for a period of at least ninety (90) days.
- Revenue Share may be corrected by Nexcess.net staff in order to portray the correct amount owed.
- Revenue Share is calculated equal to the specified percentage (75%) of the monthly dollar amount on a Qualified Purchase by a Customer which occurs during the month or other period for which Revenue Share is being calculated.
- All Revenue Share is processed on the basis of the Revenue Share structure set forth. The Revenue Share is strictly based on the monthly amount and by no other term length (quarterly, semi-annually, annually, etc.)
- Revenue Share is only payable when $50.00 has accumulated in your affiliate account.
Last Updated: 08.15.2014