Affiliate Terms & Conditions
This Affiliate Agreement ("Agreement") contains the complete terms and conditions between BackupGenie and you, regarding your application to participate as an affiliate of BackupGenie ("Affiliate"), and the establishment of links from your website to our website BackupGenie.com.
BY SUBMITTING AN APPLICATION TO JOIN OR BY PARTICIPATING IN THE BackupGenie AFFILIATE PROGRAM, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
"We", "Our", "Us" -- BackupGenie
"You", "Your" and "Affiliate(s)" the individual, business or entity applying for participation in the BackupGenie Affiliate Program, or that displays Our products, services and/or promotions on its website and/or through offline representation through the affiliate tracking code in exchange for receiving remuneration from BackupGenie for sales resulting from such display.
"Affiliate Site" - the Affiliate's Internet site which displays BackupGenie Products and Services and/or promotions.
"BackupGenie Products and Services" - cloud backup and related products and services that are available for purchase through BackupGenie.com.
"Commission Fees" or "Commissions" - Commission Fee paid by BackupGenie for each Qualified Purchase by a Referred Customer that You refer to BackupGenie under and in accordance with this Agreement.
"Qualified Purchase" - a sale of BackupGenie Products and Services by BackupGenie, to a Referred Customer which meets the criteria set forth in Section 5 hereof.
"Referred Customer" - each new and unique customer You refer through a Link (defined in Section 2 below) provided by or approved by Us, which meets the criteria set forth in Section 5 hereof.
"Registration Form" - any and all order forms, Registration Forms, or other signup or acceptance form (whether online, paper, fax, or otherwise) submitted by You or, as applicable, the Referred Customer to make a Qualified Purchase.
1. Enrolment in the Affiliate Network
To begin the enrolment process, you must submit a completed Affiliate Program Signup Form. The Signup Form can be found at: http://www.BackupGenie.com/affiliates
We will evaluate Your application in good faith and will notify you of Your acceptance or rejection in a timely manner. We may reject Your application if We determine (in Our sole discretion) that Your site is unsuitable for Our Affiliate Program for any reason, including, but not limited to, inclusion of content that is, in Our opinion, unlawful or otherwise does not meet our Acceptable Use Policy.
If We reject Your application, for any reason, You may not reapply to the BackupGenie Affiliate Program utilizing the same domain name/URL if that domain name/URL has already been rejected nor may you reapply using a different domain/URL name then add the previously rejected domain name/URL. BackupGenie, in its sole discretion, reserves the right to notify or to not notify any prospective affiliate of their rejection or removal from the BackupGenie Affiliate Program at any time.
2. Promotion of Our Affiliate Relationship
If You qualify and agree to participate as an Affiliate, We will make available to You a variety of graphic and textual links (collectively referred to as "Links" or, individually, as a "Link"), which are subject to the terms and conditions hereof. The Links will serve to identify Your site as a member of the BackupGenie Affiliate Program and will establish a Link from Your site or e-mail to Ours. The Links may connect to any area of Our site (although commissions will only be issued on Qualified Purchases). In utilizing the Links, You agree that You will cooperate fully with Us in order to establish and maintain such Links.
You also agree that You will display on Your site only those graphic or .textual images (indicating a Link) provided by Us or text messages expressly approved in advanced in writing by BackupGenie. All Affiliate Sites shall display such graphic and/or textual images prominently in relevant sections of their site. Furthermore, you agree not to use cookie stuffing techniques that set the affiliate tracking cookie without the Referred Customer's knowledge (example: iframe). Any information with respect to Us that is going to be displayed on Your site must be provided by Us and expressly approved by Us in writing in advance of any display.
EXCEPT AS PERMITTED ABOVE OR IN SECTION 13 BELOW, YOU SHALL NOT AND ARE NOT AUTHORIZED TO (i) USE THE BackupGenie TRADEMARK, NAME OR ANY OF OUR OTHER INTELLECTUAL PROPERTY (OR ANY VARIATIONS OR MISSPELLINGS THEREOF OR OTHER TERM OR TERMS CONFUSINGLY SIMILAR TO ANY OF THE FOREGOING) (ALL OF THE FOREGOING, INCLUDING WITHOUT LIMITATION, THE LINKS AND THE "LICENSED MATERIALS" (DEFINED BELOW), ARE REFERRED TO HEREIN AS "OUR IP"), WITHOUT OUR EXPRESS PRIOR WRITTEN PERMISSION; (ii) USE OUR IP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), KEY WORDS, ADVERTISING, SEARCH TERMS, CODE, OR OTHERWISE; (iii) CAUSE OR CREATE OR ACT IN ANY WAY THAT CAUSES OR CREATES OR COULD CAUSE OR CREATE ANY "INITIAL INTEREST CONFUSION" OVER THE USE OF OUR IP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. YOUR USE OF OUR IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER (IN ADDITION TO BEING A BREACH OF THIS AGREEMENT) SHALL CONTITUTE UNLAWFUL INFRINGEMENT OF OUR TRADEMARKS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS, AND MAY SUBJECT YOU TO CLAIMS FOR DAMAGES (INCLUDING WITHOUT LIMITATION, TREBLE DAMAGES FOR KNOWING OR WILFUL INFRINGEMENT), AND THE OBLIGATION TO PAY OUR LEGAL FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH WE SEEK TO ENFORCE OUR RIGHTS UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF OUR INTELLECTUAL PROPERTY RIGHTS.
All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. You are not allowed to post any refunds, credits or discounts, or other content concerning BackupGenie, unless We have given You prior written permission in each instance. Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Program using banners and links. Each Link connecting users of Your site to the pertinent area of Our site will in no way alter the look, feel, or functionality of Our site. Any violations of the terms surrounding links, coupons, refunds, credits or discounts shall constitute a material breach of this Agreement, and may result in Your termination from the program or withholding of Commissions.
3. FTC Endorsement Compliance
It is the intent of BackupGenie to treat our customers fairly and to comply fully with all applicable Federal Trade Commission ('FTC') regulations and guidelines. As such, we require our affiliates to comply with these regulations and guidelines. This includes, but is not limited to, 16 CFR Part 255: Guides Concerning the Use of Endorsements and Testimonials in Advertising, which requires, among other criteria, that material connections between advertisers and endorsers be disclosed. This means that directories, review/rating sites, blogs and other websites, email or collateral that purport to provide an endorsement or assessment of an advertiser (in this case BackupGenie) must prominently disclose the fact financial or in-kind compensation is provided from the advertiser.
For more information and suggestions about how to comply with these guidelines, please visit our page entitled "Affiliate Disclosure Requirements and Examples." (Please note: It is Your obligation to comply with all applicable law, including any applicable amendments or modifications thereto. This page is only intended to provide guidance. It does not purport to provide legal advice, nor does it guarantee that you'll be in compliance with FTC regulations should you follow the suggestions presented there.) You are advised to seek and obtain your own legal advice on how these rules apply to your website or other promotional activities for which you receive compensation.
BackupGenie reserves the right to withhold commission fees and cancel the affiliate relationship with you should we determine, at our discretion, that you are not in compliance with the previously mentioned guide or other FTC regulations/guides we deem relevant.
4. Order Processing
We will process orders placed by Referred Customers who follow the Links from your website to BackupGenie.com. We reserve the right, in our sole discretion, to reject orders that do not comply with certain requirements that we may establish from time to time. All aspects of order processing and fulfillment, including BackupGenie service, cancellation, processing, refunds and payment processing will be our responsibility. We will track the Qualified Purchases generated by Your website and will make this information available to You through Our website. To permit accurate tracking, reporting, and Commission accrual, You must ensure that the Links between Your website and Our website are properly formatted.
5. Commission Determination
Under the Affiliate Program, you will be paid a Commission Fee for each Qualified Purchase by a Referred Customer that you refer to BackupGenie under and in accordance with the terms of this Agreement. Each Referred Customer and each Qualified Purchase must meet the following criteria (the "CPA Criteria"):
- Each Referred Customer must sign up in a manner, which in our sole judgment, definitively establishes that the Referred Customer was referred directly from you to BackupGenie under this Agreement.
- Each Referred Customer must remain in compliance with our Terms of Service, Acceptable Use Policy and other policies that are active at the time the Commission Fees are processed.
- Commission Fees may not be paid if the Referred Customer has been offered or received coupons, refunds, credits or discounts from the Affiliate or if the Referred Customer has joined a business-opportunity program (as determined by BackupGenie in its sole discretion) that is managed or participated in by the Affiliate, unless BackupGenie has provided its prior written permission.
- If a high volume of your Referred Customers have received a discounted offer, we may not pay commissions on purchases.
- Unless authorized and confirmed by your account manager, you will only be credited for Qualified Purchases from these countries: United States, United Kingdom, Canada, Australia, New Zealand, South Africa, and Ireland.
BackupGenie, in its sole discretion, reserves the right to suspend or withhold indefinitely payment of any Commission Fee, and/or to reverse, deny or reject any Commission Fee, based, without limitation, on the following, each as determined by in its sole discretion:
- Fraud or suspicion of fraud or other improper activity (including, without limitation, the use of software that generates real and fictitious information; a pattern of potentially fraudulent activity such as multiple accounts created from the same customer).
- Breach or potential breach of any terms in the Agreement by the Affiliate or a Referred Customer.
- Any account/sale which has not been in an approved status in good standing as an account of BackupGenie for a period of at least thirty (30) days.
- Any alteration of Our Links.
- Referred Customers that have been offered or received coupons, refunds, credits or discounts from the Affiliate or for Referred Customers who have joined a business opportunity program that is managed or participated in by the Affiliate, unless BackupGenie has provided written permission
- Referred Customers that have been offered to receive goods, a service or funds in exchange for joining BackupGenie. (This is referred to as incentive traffic. Strictly no incentive sales.)
- Using marketing practices that We deem to be unethical or likely to attract fraudulent signups and/or signups with a very low likelihood of renewal.
- Historical quality of the sales generated
- Excessive cancellation rates by a particular Affiliate
- Failure of a Referred Customer to install BackupGenie software
BackupGenie reserves the right to immediately cancel or withhold for later review any Commission Fee based on the foregoing or that otherwise fails to meet the CPA Criteria. It is the responsibility of the Affiliate to monitor the payment, denial and withholding of Commission Fees; BackupGenie is not obligated to actively notify Affiliates of the status of Commission Fees. If an Affiliate has a question about a Commission Fee that has been cancelled or withheld, that Affiliate has 30 days from the day the payment was due to contact BackupGenie to discuss or reclaim the Commission Fee. Any changes to decisions about cancelled or withheld Commission Fees are strictly at BackupGenie's discretion.
Commissions for any Referred Customer who is associated with any BackupGenie reseller, referral or other program may be removed from your payment. In other words, You may not receive double commissions or compensation.
BackupGenie reserves the right to deduct from Affiliate's current and future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, and/or cancelled BackupGenie purchases. Where no subsequent Commission Fee is due and owing, BackupGenie may send Affiliate a bill for the balance of such refunded purchase upon termination of the program or termination of the Referred Customer.
Any attempt by an Affiliate to manipulate, falsify or inflate Referred Customers, Qualifying Purchases or Commission Fees to intentionally defraud BackupGenie, or violation of any of the terms of this Agreement constitutes immediate grounds for BackupGenie to terminate this Agreement and will result in forfeiture of any Commission Fees due to you.
If you are on Pay-Per-Lead under the Affiliate Program, you will be paid a Commission Fee for each Qualified Lead by a Referred User that you refer to BackupGenie under and in accordance with the terms set forth below and in this Agreement. Each Referred User and each Qualified Lead must meet the following criteria (the "PPL Criteria"):
- Each Referred User must be a new and unique visitor to BackupGenie and must register by completing and submitting the Registration Form using a valid and unique account and email information either on the BackupGenie website or via BackupGenie in-app Signup.
- Commission may not be paid for a Referred User that has transferred from any of our partners or subsidiaries.
- Each Referred User must sign up in a manner, which in Our sole judgment, definitively establishes that the Referred User was referred directly from You to BackupGenie under this Agreement.
- Each Referred User must remain in compliance with our Terms of Service, Acceptable Use Policy and other policies that are active at the time the Commission Fees are processed.
BackupGenie reserves the right to withhold initial Commissions Fees for Affiliates who have commissions that are potentially fraudulent as determined by BackupGenie in its sole discretion, to determine the legitimacy and upgrade rates of Referred Users.
BackupGenie reserves the right to suspend payment of Commission Fees at any time and indefinitely, if it suspects fraud or other improper activity or a potential breach of any of the terms in this Agreement by the Affiliate or a Referred User(s). BackupGenie reserves the right to deduct from Affiliate's current and future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, and cancelled BackupGenie leads. Where no subsequent Commission Fee is due and owing, BackupGenie will send Affiliate a bill for the balance of such reversed leads.
BackupGenie, in its sole discretion, reserves the right to withhold indefinitely any Commission Fee, and/or to reverse, deny or reject any Commission Fee, for:
- Any commissions generated for accounts that may be fraudulent, including but not limited to the use of software that generates real and fictitious leads.
- If We deem leads to be fraudulent or see a pattern of potentially fraudulent activity, including, without limitation, where there are multiple accounts from the same IP, TLD patterns, or referral of leads which do not comply with this Agreement. We review account information (including site content) to assess referrals.
- Altering Our Links in any way.
- Referred leads that have been offered or received coupons, refunds, credits or discounts from the Affiliate or for Referred Users who have joined a business opportunity program that is managed or participated in by the Affiliate, unless BackupGenie has provided written permission.
- Referred Users that have been offered to receive goods, a service or funds in exchange for joining BackupGenie. (This is referred to as incentive traffic. Strictly no incentive leads.)
- Affiliates whom we believe may be artificially submitting Referred Users, using marketing practices that we deem to be unethical or likely to attract fraudulent signups and/or signups with a very low likelihood of upgrading to paid customers.
Unless authorized and confirmed by your account manager, you will only be credited for Qualified leads from these countries; United States, United Kingdom, Canada, Australia, New Zealand, South Africa, Ireland
BackupGenie reserves the right to immediately cancel or withhold for later review any Commission Fee based on the foregoing or that otherwise fails to meet the Criteria. It is the responsibility of the Affiliate to monitor the payment, denial and withholding of Commission Fees; BackupGenie is not obligated to actively notify Affiliates of the status of Commission Fees. If an Affiliate has a question about a Commission Fee that has been cancelled or withheld, that Affiliate has 30 days from the day the payment was due to contact BackupGenie to discuss or reclaim the Commission Fee. Any changes to decisions about cancelled or withheld Commission Fees are strictly at BackupGenie's discretion.
Commissions for any Referred User who is associated with any BackupGenie reseller, referral or other program may be removed from your payment. In other words, You may not receive double commissions or compensation.
In the event that the Referred Users that are referred to BackupGenie by a specific Affiliate are determined to have a poor upgrade to paid customer rate (as determined by BackupGenie in its sole discretion), BackupGenie reserves the right to withhold or decline pending and future Commission Fees for the Affiliate.
If an Affiliate sends a high level of Referred Leads without a Paid Customer Upgrade being generated from affiliate referred leads, BackupGenie's fraud protection system will automatically deny a percentage of Qualified Leads.
BackupGenie's fraud protection system will use data on Referred Users upgrading to deny a percentage of Qualified Leads if it deems poor performing leads are being generated.
Any attempt by an Affiliate to manipulate, falsify or inflate Referred Users, Qualifying leads or Commission Fees to intentionally defraud BackupGenie or violation of any of the terms of this Agreement constitutes immediate grounds for BackupGenie to terminate this Agreement and will result in forfeiture of any Commission Fees due to you.
6. Commission Fees and Payments
Subject to the terms of this Agreement, we will pay a Commission Fee equal to the specified percentage or dollar amount set forth in the Commission Report in Your Affiliate Control Panel on a Qualified Purchase by a Referred Customer or on a Qualified Lead by a Referred User which occurs during the month or other period for which such Commission Fee is being calculated.
Such Commission Fees will be processed approximately 15 to 45 days after the end of your first period in which a Qualified Purchase or Qualified Lead was properly completed, then on a cycle of every 2 weeks on a Wednesday. BackupGenie will not reimburse nor compensate You for any commission or other consideration other than for Qualifying Purchases by a Referred Customer made in accordance with the terms hereof.
BackupGenie has the right to hold a reserve on your payments which will be added back to paychecks 3 periods rolling.
Periods are 2 weeks Wednesday to Tuesday Midnight CST.
Commissions will accrue and become payable once you (i) provide all relevant tax and address documentation pursuant to Section [ ] below and (ii) reach a commission level of US $50 (the 'Commission Threshold'), solely as applied to Qualified Purchases which occurred within 180 days of the end of the calendar month in which the first of such Qualified Purchases occurred; provided that BackupGenie may increase the Commission Threshold prospectively by amendment of this Agreement according to its terms. Commission Rates must result in a commission of at least the Commission Threshold in order for a commission to be due and payable hereunder. For example, if you provide sign-ups which result in one Qualified Purchase on January 1, 2014 and a second sign-up which leads to a Qualified Purchase on August 10, 2014, and you provide all necessary tax documentation on August 10, 2014, then no commission would accrue because the second Qualified Purchase occurred more than 180 days after the end of January 2014. If you then provide a sign up which leads to another Qualified Purchase on September 5, 2014, then a commission of $100 accrues on the latter two Qualified Purchases. All Qualified Purchases still eligible to result in commissions under this Section [ ] must remain active and in good standing according to this Agreement in order to remain eligible for accrual of a commission[, up to the point upon which a commission accrues under this Section 4].
Once a commission has accrued under this Section 4, the amount of such commission (the 'Commission Fee') shall be due and payable to you under the terms of Section 
Commission Fees deemed due and owed to you under the program will be paid to you directly by BackupGenie in accordance with a regular payout cycle established by BackupGenie from time to time. No Commission Fee will be paid for signups by you, your household, or anyone within your organization. HostGator reserves the right to only pay for Qualified Purchases that are active.
Check payments will only be reissued within 120 days of original issue date in the case of a lost check or stop-payment request. After 120 days, the payment will be voided. Check cancellation fees may be applied.
You are responsible for informing BackupGenie about changes to postal and e-mail addresses, as well as any changes to your name, email address, contact information, tax identification number, or other personal information that will impact BackupGenie's ability to issue a valid Commission payment. Failure to provide the correct addresses may result in the forfeiture of any Commissions due to you. Commission Fees that are returned for invalid or insufficient address information or for other reasons may be forfeited as well.
7. Payment Forms/Types
Commission Fees shall be paid based on the current information in Your Affiliate profile. Please notify us promptly of any change in your address by updating your profile information in the Affiliate console. Failure to do so may result in loss or forfeiture of your Commission Fee.
You are responsible for informing BackupGenie of Your desired Payment form/type:
As default you will be set to receive commission via PayPal in USD, Please refer to PayPal's policy to ensure you are eligible to receive payment if you reside outside of the United States. https://www.paypal.com/cgi-bin/webscr?cmd=_display-approved-signup-countries-outside
You will have the option to receive Commission Fees in the form of bank wire once you have earned over $1000 in commission.
You may choose to receive Commission Fees in the form of check made out in U.S. currency upon request only and will be at our discretion.
BackupGenie is not responsible for any third-party fees charged by PayPal, bank or other financial institute used to receive Affiliate Commission Fees.
BackupGenie, in its sole discretion, reserves the right to modify the terms of this Commission payment method or schedule at any time. Such changes shall take effect when posted.
Disputes: Affiliate has access to BackupGenie's real-time Affiliate Program statistics and activity and specifically agrees to file any tracking or commission disputes as well as any other disputes and discrepancies within 45 days after the end of the month in which the sale or event that is disputed occurred. Disputes filed after 45 days of the date on which the Qualified Purchase occurred will not be accepted by BackupGenie and Affiliate forfeits forever any rights to a potential claim.
8. Taxes/Address Changes
It is Your responsibility to provide BackupGenie with the tax and payment information required to issue a Commission Fee to You. If BackupGenie does not receive the necessary tax or payment information within 120 days of a Qualified Purchase which would otherwise trigger Commission Fees, that the applicable commissions shall not accrue and no resulting Commission Fees will be owed with respect to such Qualified Purchase. Each Affiliate is required to submit a W8/W9 tax form before BackupGenie will be obligated to pay any Commission Fees. You are responsible for the payment of all taxes related to the commissions you earn under this Agreement. In compliance with US tax laws, BackupGenie will issue a Form 1099 to Affiliates whose earnings meet or exceed the applicable amount warranting the Form 1099. You will be required to provide us with proper address, tax forms (including W8/W9 or other tax forms) or information within two (2) days of any request issued by BackupGenie to issue a Form 1099. Any address changes must be made in the Affiliate profile in the Affiliate Console at least 15 business days prior to the end of the calendar month in order for Commission Fees for that month to be sent to the revised address.
9. Reports of Qualified Purchases or leads
You may log into your Affiliate Console to review Your click through and potential Qualified Purchases (or qualified leads if on pay-per-lead) statistics on a daily basis. The potential Qualified Purchases or qualified leads shown in this report have not been reviewed to confirm they meet all criteria for Qualified Purchases or quailed leads. As such, Commission Fees may not be issued on all Referred Customers that appear in the Affiliate Console.
10. Obligations Regarding 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. Such responsibilities include, but are not limited to, the technical operation of Your site and all related equipment; creating and posting product reviews, descriptions, and references on Your site and linking those descriptions to Our website; the accuracy and propriety of materials posted on Your site (including, but not limited to, all materials related to BackupGenie Products and Services); ensuring that materials posted on Your site do not violate or infringe upon the rights of any third party and are not libellous or otherwise illegal. We disclaim all liability and responsibility for such matters.
We have the right in Our sole discretion to monitor signups through Your site at any time and from time to time to determine if You are in compliance with the terms of this Agreement. If You are not in compliance We may terminate this Agreement immediately.
11. BackupGenie Responsibilities
We will be responsible for providing all information necessary to allow You to make appropriate Links from Your site to Our site. BackupGenie will solely be responsible for order processing for orders/Qualified Purchases placed by a Referred Customer following a Link from Your site, for tracking the volume and amount of Qualified Purchases generated by Your site, and for providing information to Affiliates regarding Qualified Purchases statistics. BackupGenie will be solely responsible for all order processing, including but not limited to payment processing, cancellations, refunds and related BackupGenie service. Any determination made by BackupGenie regarding the foregoing shall be binding absent manifest error.
Policies and Pricing
12. BackupGenie Policies and Pricing
Referred Customers who buy BackupGenieProducts and Services through the Affiliate network will be deemed to be Our Customers. Accordingly, all of Our rules, policies, and operating procedures concerning BackupGenie orders, BackupGenie service, and BackupGenie Products and Services sales will apply to those Customers. We may change Our policies and operating procedures at any time. For example, We will determine the prices to be charged for BackupGenie Products and Services sold under the Affiliate Network in accordance with Our own pricing policies. Prices and availability of BackupGenie Products and Services may vary from time to time, from affiliate to affiliate, and from region to region. Because price changes may affect products that You have listed on Your site, You may or may not be able to include price information in Your product descriptions. We will use commercially reasonable efforts to present accurate information, but We cannot guarantee the availability or price of any particular product or service. Please note that by signing up to be an Affiliate, You agree to both this Agreement and Our Terms of Service.
13. E-mails and Publicity
You shall not create, publish, transmit or distribute, under any circumstances, any bulk electronic mail messages (also known as "SPAM") without prior written consent from BackupGenie for each and every day when any bulk mailing will occur. BackupGenie, in its sole discretion, reserves the right to reject each and every e-mail mailing. Additionally, You may only send e-mails containing an BackupGenie affiliate link and or a message regarding BackupGenie or BackupGenie's Affiliate Program to person(s) who have been previously contacted and who consented to the fact that the You will be sending an e-mail containing BackupGenie information or information about the BackupGenie affiliate program. Failure by You to abide by this section, the CAN-SPAM Act of 2003 or our Anti-Spam Policy, in any manner, will be deemed a material breach of this Agreement by You and foreclose any and all rights you may have to any commissions. If your account has excessive clicks in a very short period of time as determined by BackupGenie in its sole discretion, the Affiliate relationship may be terminated.
14. Licenses and Use of the BackupGenie.com Logos and Trademarks.
- Subject to the limitations set forth in Section 2 above and otherwise in this Agreement, we grant you a non-exclusive, non-transferable, revocable license to (i) access our site through the links solely in accordance with the terms of this agreement and (ii) solely in connection with such links, to use the BackupGenie.com trademark and logo and similar identifying material relating to us (but only in the form(s) that they are provided by us) (collectively, the "Licensed Materials"), for the sole purpose of selling BackupGenie Products and Services on your site and as approved in advance by us. You may not alter, modify, or change the Licensed Materials in any way. You are only entitled to use the Licensed Materials to the extent that You are a member in good standing of the BackupGenie Affiliate Program.
- You shall not make any specific use of any Licensed Materials for purposes other than selling BackupGenie Products and Services, without first submitting a sample to Us and obtaining the express prior written consent of Your BackupGenie account executive. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays BackupGenie, any hosted member of BackupGenie or any BackupGenie employee or representative in a negative light. We reserve all of Our rights in the Licensed Materials and of Our other proprietary rights. We may revoke Your license at any time, by giving You written notice. If not revoked, this license shall terminate upon expiration or termination of this Agreement.
- You grant to Us a non-exclusive license to utilize Your names, titles, and logos, as the same may be amended from time to time (the "Affiliate Trademarks"), to advertise, market, promote, and publicize in any manner Our rights hereunder; provided, however, that We shall not be required to so advertise, market, promote, or publicize the Affiliate Trademarks. This license shall terminate upon the expiration or termination of this Agreement.
15. Term of the Agreement
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. You are only eligible to earn Commission Fees on Qualified Purchases or qualified leads occurring during the term, and Commission Fees earned through the date of termination will remain payable only if the orders for the related BackupGenie Products and Services are not cancelled and comply with all Terms laid out in this Agreement. We may withhold Your final payment of Commission Fees for a reasonable time to ensure that all Qualified Purchases or qualified leads are valid and payment from Referred Customers are legitimate as determined by BackupGenie in its sole discretion.
Any Affiliate who violates either this Agreement or BackupGenie's Terms and Conditions will immediately forfeit any right to any and all accrued Commissions Fees and will be removed from the BackupGenie Affiliate Program.
BackupGenie reserves the right to remove an Affiliate from the Affiliate Program, and to terminate or suspend this Agreement, at any time for any reason, in BackupGenie's sole discretion.
Without limitation, Affiliate's participation in the Program, and this Agreement, shall be deemed automatically terminated immediately and all commissions forfeited upon Affiliate's violation of any of the terms of this Agreement or of any applicable law or regulation having the force of law.
You agree that the terms and conditions of this Agreement shall apply retroactively to all Qualfied Purchases for which you have not yet received a Commission Fee. We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion; provided that change shall solely apply to events occurring after the date on which you accept and agree to such modifications unless you otherwise agree herein or in a separate agreement. 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 Rate 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, in which event you shall be entitled to your rights under the unmodified Agreement prior to the date of the applicable modification. 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.
We make no express or implied warranties or representations with respect to the Affiliate Program or any BackupGenie Products and Services sold through the Affiliate Program (including, without limitation, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF 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, including the tracking of information about Referred Customers during the period of interruption.
18. Relationship of Parties
You and BackupGenie 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.
19. Representations and Warranties
You hereby represent and warrant to us as follows:
- 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.
- The execution, delivery, and performance by You of this Agreement and the consummation by You of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which You are subject, (ii) any order, judgment, or decree applicable to You or binding upon Your assets or properties, (iii) any provision of Your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to You or binding upon Your assets or properties.
- You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to Us the license to use Your trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to You or binding upon Your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
- No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by You in connection with the execution, delivery, and performance of this Agreement or the taking by You of any other action contemplated hereby.
- There is no pending or, to the best of Your knowledge, threatened claim, action, or proceeding against You, or any Affiliate of Yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to Your trademarks, and, to the best of Your knowledge, there is no basis for any such claim, action, or proceeding.
- During the term of the Agreement, You will not include in Your site content that is, in Our opinion, unlawful, harmful, threatening, defamatory, obscene, harassing, racially, ethically, or otherwise objectionable or are in violation of Our Terms of Service or Acceptable Use Policy.
- You are at least eighteen (18) years of age.
- Each Referred Customer and each Qualifying Purchase referred or submitted by You to Us, is valid, genuine, unique and not fraudulent and meets each of the Criteria for generating a Commission Fee as provided in this Agreement.
20. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, 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 DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
You hereby agree to indemnify and hold harmless Us and Our subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that Our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by You herein, or (iii) any claim related to Your site, including, without limitation, its development, operation, maintenance and content therein not attributable to Us.
Each of the parties hereto agrees that all information including, without limitation, any modifications to the terms of this Agreement, business and financial information, BackupGenie and vendor lists, and pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party without any obligation of confidentiality to the discloser hereunder. Notwithstanding the foregoing, each party is hereby authorized to deliver the copy of any such information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
23. Independent Investigation
Your application submission acknowledges that you have read this Agreement and agree to be bound by all its terms and conditions. You understand that we may at any time (directly or indirectly) solicit BackupGenie relationships on terms that may differ from those contained in this agreement. We may also solicit BackupGenie relationships with entities that operate websites that are similar to or compete with your website. You have independently evaluated the desirability of participating in the BackupGenie Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
24. Governing Law
The laws of the United States and the State of Massachusetts will govern this Agreement, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Middlesex County, Burlington, Massachusetts and You irrevocably consent to the jurisdiction of such courts. 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 be 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 a provision or any other provision of this Agreement.
I INDICATE MY APPROVAL OF THIS AGREEMENT AND DESIRE TO BECOME AN AFFILIATE UNDER THESE TERMS AND CONDITIONS BY COMPLETING AND SUBMITTING THE AFFILIATE PROGRAM SIGNUP FORM, BY SUBMITTING PROPOSED REFERRED CUSTOMERS OR QUALIFYING PURCHASES TO BackupGenie UNDER OUR AFFILIATE PROGRAM AND/OR BY COLLECTING ANY COMMISSION FEES FROM US.