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1. Enrollment in this Program.
To
begin the enrollment process, you will submit a
completed Program Application through our website. Your
account will be instantly active in our program. We will
evaluate your account in good faith to ensure you comply
with all our rules and agreements. We may reject your
account if we determine that your site is unsuitable for
the Program for any reason, including, but not limited
to, if your site incorporates images or content that is
unlawful, defamatory, obscene, harassing or otherwise
objectionable, such as sites that facilitate illegal
activity or promote violence or promote or assist others
in promoting copyright infringement (collectively,
"Content Restrictions").
2. Utilizing Links on Your Site.
As
an affiliate website of Gardenia Hosting, you may use
any form of promotion you choose, consistent with the
terms of this Agreement. You may use banner
advertisements, button links and/or text links to our
site (the "Links"), however, you CANNOT SPAM. Any
activity by you or on your behalf that we determine or
reasonably suspect to be the result of an unsolicited
bulk e-mail program will result in your immediate
termination from the Program and your forfeiting of
monies otherwise due you hereunder. Allowable
promotional links may contain Gardenia Hosting's trade
names, service marks, and/or logos for display on your
Affiliate Site. Subject to the terms and conditions
hereof, you are granted a limited, non-exclusive,
non-transferable license to access and download such
Links and other designated promotional materials for
placement on your Affiliate Site for the sole and
exclusive purpose of promoting websites owned, operated
or controlled by Gardenia Hosting. In utilizing the
Links, you agree that you will cooperate fully with us
in order to establish and maintain such Link or Links. A
Link may only be visually modified with our consent.
3. Commisions.
We
will pay you a commission based on the below structure:
Commision
Rates:
1-5 a month $20
6-10
a month $30
11-20
a month $40
21+
a month $50
for each sign up. Commisions
are residual, meaning that you are paid throughout each
service year based on the above structure for each sign
up that remains a Gardenia Hosting customer. There are
no term limits. Your residual payments last as long as
your sign ups remain Gardenia Hosting customers.
Example: If you send us 21 sign-ups in any month you
will get $50 x 21 = $1050 each one year period for as
long as the 21 sign ups remain Gardenia Hosting
customers. Comissions will adjust based upon the number
of your sign ups that remain Gardenia Hosting
customers. Example: If you had 21 sign ups in a month,
but only 18 of those remain Gardenia Hosting customers
in the next service year, your commission scale would
adjust to $40 per sign up, as per the chart below:
|
1-5 a month |
$20 |
per sign up + Residual Yearly Income |
|
6-10 a month |
$30 |
per sign up + Residual Yearly Income |
|
11-20 a month |
$40 |
per sign up + Residual Yearly Income |
|
21+ a month |
$50 |
per sign up + Residual Yearly Income |
Incentivized commissions, and offering any form of
incentive to obtain a sale is forbidden, unless prior
approval is given and cleared by Gardenia Hosting Staff.
To inquire on whether your incentive is acceptable,
please e-mail affiliates@gardeniahosting.com
The Commission Rate is subject to change from time to
time, upon e-mail notice to you and commencing the
30-days following such notice.
If you are referring clients to Gardenia Hosting from a
free hosting service that you run, you are not eligible
for commissions unless given express permission by
Gardenia Hosting. You must contact our affiliate
department for review and a special commission rate.
4. Commission Payment.
Commissions
deemed due and owed to you under the program will be
paid to you directly by Gardenia Hosting after any
holding period and in accordance with a regular payout
cycle established by Gardenia Hosting. No commission
will be paid for signups by you or anyone within your
organization. Gardenia Hosting reserves the right to
only pay for referrals that are active. Active is
defined by clients with a website and domain name
pointed to a Gardenia Hosting server with user uploaded
content. Commissions can be earned and tracked per each
new client referred through the unique affiliate link.
5. Responsibility for Your Site.
You
will be solely responsible for the development,
operation and maintenance of your site and for all
materials that appear on your site. We shall have no
responsibility for the development, operation and
maintenance of your site and for all materials that
appear on your site. You shall also be responsible for
ensuring that materials posted on your site do not
violate or infringe upon any laws, including but not
limited to 18 U.S.C. Section 2257, or the rights of any
third party (including, for example, copyrights,
trademarks, privacy, or other personal or proprietary
rights), and ensuring that materials posted on your site
are not libelous or otherwise illegal. You must have
express permission to use another party's copyrighted or
other proprietary material. We will not be responsible
if you use another party's copyrighted or other
proprietary material in violation of the law. In
addition to the foregoing, we will immediately terminate
your participation in the Program if we believe you have
engaged in any of the following:
- Unsolicited mass e-mail solicitations, IRC postings or
any other form of spamming, including but not limited
to, newsgroups or AOL customers or otherwise violate the
anti-spamming policies of Gardenia Hosting or state
law;
- Provide inaccurate or incomplete information to
Gardenia Hosting concerning your identity, address or
other required information;
- Attempt to cheat, defraud
or mislead us in any way;
- Misrepresent to the public
the terms and conditions of our sites or your sites;
-
Engage in popup advertisement network activities;
-
IFrames may only be used on pages or sites in which the
other content represented on the site is related to
Gardenia Hosting
You are free to bid on PPC networks for keywords related
to Gardenia Hosting with the intent to direct traffic to
Gardenia Hosting. However, the following terms are not
allowed:
"gardeniahosting"
“gardeniahosting.com”
"www.gardeniahosting.com"
"gardenia hosting"
"gardeniahost"
“gardeniahost.com”
"www.gardeniahost.com"
"gardenia host"
However, you may bid on a phrase that includes any of
the above terms, eg. "gardenia hosting review", "gardeniahost.com
hosting", etc. When setting up the display advertisement
in a PPC campaign, it is not permitted to use the
display URLs "www.gardeniahosting.com", "gardeniahosting.com",
"www.gardeniahost.com" or "gardeniahost.com".
The goal of our guidelines regarding pay-per-click
advertisements is to preserve the integrity of the
Gardenia Hosting brand name and reputation. We do not
want affiliates, or for that matter, any third party,
representing themselves as Gardenia Hosting or
presenting themselves in a way that could be confused
with Gardenia Hosting.
6. Term of the Agreements.
The
term of this Agreement will begin upon our acceptance of
your Affiliate Program Application and will end when
terminated by either party. Either you or we may
terminate this Agreement at any time, with or without
cause, by giving the other party notice of termination.
Notice by e-mail, to your e-mail address on our records,
is considered sufficient notice for the termination of
this Agreement. If this Agreement is terminated because
you have violated the terms of this Agreement you are
not eligible to receive any commissions payments, even
for commissions earned prior to the date of termination.
If this Agreement is terminated for any other reason,
you are only eligible to earn a commission on sales
occurring during the term of the Agreement, and
commissions earned through the date of termination will
remain payable only if the related orders are not
canceled or returned. We reserve the right to withhold
your final payment for a reasonable time to ensure that
the correct amount is paid.
7. Modification.
We
may modify any of the terms and conditions contained in
this Agreement, at any time and in our sole discretion.
Notice of any change by e-mail, to your address on our
records, or the posting on our site of a change notice
of a new agreement, is considered sufficient notice for
notifying you of a modification to the terms and
conditions of this Agreement. Modifications may include,
but are not limited to, changes in the scope of
available commission fees, commission schedules, payment
procedures, and Affiliate Program rules. All such
modifications shall take effect 48 hours after we serve
notice as provided above, unless we indicate otherwise.
If any modification is unacceptable to you, your only
recourse is to terminate this Agreement. Your continued
participation in the Affiliate Program, following our
posting of a change notice or new agreement on our site,
will constitute binding acceptance of the change.
8. Relationship of Parties.
You
and Gardenia Hosting are independent contractors, and
nothing in this Agreement will create any partnership,
joint venture, agency franchise, sales representative,
or employment relationship between the parties. You will
have no authority to make or accept any offers or
representations on our behalf. You will not make any
statement, whether on your site or otherwise, that
reasonably would contradict anything in this Section.
You are not an agent of Gardenia Hosting and Gardenia
Hosting expressly disclaims responsibility for any
conduct by you in violation of our terms of agreement.
9. Limitation of Liability.
We will not be liable for indirect, special, or
consequential damages, or any loss of revenue, profits,
or data, arising in connection with this Agreement or
the Affiliate Program, even if we have been advised of
the possibility of such damages. Further, our aggregate
liability arising with respect to this Agreement and the
Affiliate Program will not exceed the total commissions
paid or payable to you under this Agreement.
10. Disclaimers.
We
make no express or implied warranties or representations
with respect to the Affiliate Program or any COMPANY
services or other items sold through the Program
(including, without limitation, warranties of fitness,
merchantability, non-infringement, or any implied
warranties arising out of a course of performance,
dealing, or trade usage). In addition, we make no
representation that the operation of our site will be
uninterrupted or error-free, and we will not be liable
for the consequences of any interruptions or errors.
11. Representations and Warranties.
You
hereby represent and warrant to us that this Agreement
has been duly and validly executed and delivered by you
and constitutes your legal, valid and binding
obligation, enforceable against you in accordance with
its terms; and that the execution, delivery and
performance by you of this Agreement are within your
legal capacity and power; have been duly authorized by
all requisite action on your part; require the approval
or consent of no other persons; and neither violate nor
constitute a default under the (i) provision of any law,
rule, regulation, order, judgment or decree to which you
are subject or which is binding upon you, or (ii) the
terms of any other agreement, document or instrument
applicable to you or binding upon you. Should any law
enforcement agency or internet service provider provide
Gardenia Hosting with notice that you have engaged in
transmission of unsolicited bulk e-mails or have
otherwise engaged in unlawful conduct or conduct in
violation of said service provider's terms of service,
we reserve the right to cooperate in any investigation
relating to your activities including disclosure of your
account information in connection therewith.
12. Confidentiality.
We
may disclose to you certain information as a result of
your participation as part of the Program, which
information we consider to be confidential (herein
referred to as "Confidential Information"). For purpose
of this Agreement, the term "Confidential Information"
shall include, but not be limited to, any modifications
to the terms and provisions of this Affiliate Program
Agreement made specifically for your site and not
generally available to other members of the Affiliate
Program, website, business and financial information
relating to Gardenia Hosting, customer and vendor lists
relating to Gardenia Hosting and any members of the
Affiliate Program, other than you. Confidential
Information shall also include any information that we
designate as confidential during the term of this
Agreement. You agree not to disclose any Confidential
Information and that such Confidential Information shall
also include any information that we designate as
confidential during the term of this Agreement. You
agree not to disclose any Confidential Information and
that such Confidential Information shall remain strictly
confidential and secret and shall not be utilized,
directly or indirectly, by you for your own business
purposes or for any other purpose except and solely to
the extent that any such information is generally known
or available to the public or if same is required by law
or legal process. We make no warranty, expressed or
implied, with respect to any information delivered
hereunder, including implied warranties of
merchantability, fitness for a particular purpose or
freedom from patent, trademark or copyright
infringements, whether arising by law, custom or
conduct, or as to the accuracy or completeness of the
information and we shall not have any liability to you
or to any other person resulting from your or such third
person's use of the information.
13. Indemnification.
You hereby agree to indemnify, defend and hold harmless
Gardenia Hosting, officers, directors, employees,
agents, affiliates, successors and assigns, from and
against any and all claims, losses, liabilities, damages
or expense (including attorneys' fees and costs) of any
nature whatsoever incurred or suffered by us
(collectively the "Losses"), in so far as such Losses
(or actions in respect thereof) arise out of or are
based on (i) any claim or threatened claim that our use
of the Affiliate Trademarks infringes on the rights of
any third party; (ii) the breach of any promise,
covenant, representation or warranty made by you herein;
or (iii) or any claim related to your site.
14. Miscellaneous.
Terminated
accounts cannot later apply to the Program without our
express written consent. This Agreement will be governed
by the laws of the United States of America and the
State of New York, without reference to rules governing
choice of laws. Gardenia Hosting reserves the right to
institute a reserve fund holding commissions for a time
period deemed necessary in situations where sales
generated by an affiliate consistently have a high
chargeback/cancellation ratio. Gardenia Hosting will be
the sole and final arbitrator for any and all disputes
or claims related to the validity of sales. In order to
facilitate accurate record-keeping, multiple Gardenia
Hosting affiliate accounts spanning multiple affiliate
networks are strictly prohibited. If you have an account
with the Gardenia Hosting in-house affiliate program and
also open a Gardenia Hosting affiliate account with
another network such as Commission Junction, both
affiliate accounts will be terminated and all
commissions will be forfeited. You may not assign this
Agreement, by operation of law or otherwise, without our
prior written consent. Subject to that restriction, this
Agreement will be binding on, inure to the benefit of,
and enforceable against the parties and their respective
successors and assigns. Our failure to enforce your
strict performance of any provision of this Agreement
will not constitute a waiver of our right to
subsequently enforce such provision or any other
provision of this Agreement.
15. Binding Arbitration.
By
participating in this affiliate program, you agree to
binding arbitration for any disputes or claims that
arise against Gardenia Hosting or its subsidiaries in
conjunction with this program. An arbitration firm
selected by Gardenia Hosting will be the sole and final
arbitrator for any and all disputes or claims related or
resulting from participation in this program. All
decisions rendered are final. You also are responsible
for any and all costs related to such arbitration.
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