Miva Affiliate Agreement
This Affiliate Agreement ("Agreement") contains the terms and conditions that apply to your participation as an affiliate (“you” or "Affiliate") in the Miva, Inc. (“Company”) Affiliate Program. Affiliate acknowledges that it may participate in the Affiliate Program only after submission of a signed copy of this Agreement, acceptance by the Company and execution of this Agreement. By signing this Agreement you warrant that you have read and understand it and agree to be bound by it. Term. The term of this Agreement will begin on the date you sign this Agreement and will end when terminated by either party in writing or by email ("Term").
Referral Fees. During the Term of this Agreement, Company shall pay you a fee ("Referral Fee") for each new Customer you refer to the Company. The Referral Fee schedule is attached hereto. Referral fees will be paid within 45 days of completion of the Customer’s third billing cycle.
"Customer" means any person or entity who has not previously purchased a product or service through the Company Site and who (i) purchases a Company Product or Service from the Company Site using a Link which includes an Affiliate code, (ii) provides a valid email address and credit card information, and (iii) remains a customer of the Company for at least 3 billing cycles.
Upon execution of this Agreement, you will have the ability to enter the password-protected site for the Affiliate Program. The Affiliate Program site will contain sales reports and traffic information related to your affiliate relationship with the Company. These reports will contain estimates of (i) the number of Internet user click-throughs to the Company site related to Affiliate Advertising, and (ii) the Referral Fees payable to you.
Affiliate’s Rights and Obligations. As an Affiliate, you are permitted to promote the Company Products and Services only through Advertisements. "Advertisements" means any and all banner or box-style advertisements, pop-up or pop-under placements, text links or other similar solicitations through the Internet that promote Company Products or Services (excluding third party products/services) and that contain a Link to the Company site currently located at
http://www.miva.com/ecommerce-hosting or any page, section, subsection or subdirectory thereof. Advertisements may be made in the following manner: (i) Links from your web site to the Company site, (ii) Links, pop-ups or pop-under placements on web sites for which you have received express written permission to place such Links, and (iii) emails in compliance with law and this Agreement. "Link" means an embedded graphic, icon or text containing a unique hypertext pointer to the URL address for the Company site that is embedded in an Advertisement and identifies
individuals/companies that become Customers via use of such Link.
"Company Products and Services" means those proprietary products and services currently offered on the Company Site, which currently consists of: Miva Merchant Software-as-a-Service Package, Boutique, Marketplace, Warehouse and Dedicated, and any proprietary products or services that may be offered at a future date on the Company Site during the Term of this Agreement.
ALTERATION OR UNAUTHORIZED USE OF ADVERTISING IS STRICTLY PROHIBITED AND WILL RESULT IN TERMINATION OF THIS AGREEMENT.
Affiliate will not publish any prices, special offers or discounts in connection with the Advertising on its web site, unless such prices, special offers or discounts were included by Company in its unmodified Advertising. Affiliate agrees to make any changes to its use of the Advertising as requested by Company and agrees to replace any Advertising with new Advertising provided by the Company within three (3) days after receiving notice from Company of the new Advertising.
Affiliate shall not provide any Advertisement to any third party, sub-affiliate or agent without the written permission of Company.
You will be solely responsible for the development, operation, and maintenance of your site, which must remain fully functional at all times. Company reserves the right to review and audit Affiliate's web site from time to time to determine if Affiliate is in continued compliance with this Agreement. Affiliate’s site shall not in any way copy or resemble the look and feel of the Company site, nor shall Affiliate create the impression that its site is the Company site or a part of the Company site. Affiliate shall not use the name of the Company or the Company site, or any variation or misspellings thereof, in its URL. Affiliate shall not frame or permit the framing of any page of the Company site.
Affiliate may not post any of the following on any page on which the Advertising appears: adult-oriented, sexually explicit or offensive content, images or content that is in any way harmful, threatening, obscene, harassing or racially, ethnically or otherwise legally or morally objectionable, as determined in Company’s sole discretion.
YOU UNDERSTAND THAT THE COMPANY MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR MAY OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
All promotional activities undertaken by Affiliate to promote Company Products or Services shall be made in accordance with prudent business practices and in accordance with all applicable laws and regulations.
During and after the Term, Affiliate will not disparage Company, the Company Site or the Company Products or Services, or portray any of these in a derogatory or negative manner.
Affiliate agrees to indemnify, defend and hold Company harmless from all claims, damages, losses, and expenses (including, without limitation, attorneys’ fees and costs, payable as incurred) relating to the development, operation, maintenance, and content of Affiliate’s site, violation of this Agreement, and/or violation of the rights of any third party.
the Company site including, without limitation: (i) contact information collected from any Customers; and (ii) information regarding product or services sales generated through the Affiliate Link(s) ("Sales Information"). Company may make certain Sales Information available to Affiliate online from time to time. Affiliate will not use or disclose any Sales Information to any third party without Company’s prior approval.
The Company shall have no liability or obligation to Affiliate for damages arising out of, or in connection with, the delivery, use or performance of the Company’s products or services by a Customer.
Termination. Affiliate acknowledges that this Agreement may be terminated by the Company at any time, for any or no reason. Upon termination of this Agreement, Affiliate must immediately cease using any Advertising or Links and remove them from Affiliate’s web site(s). No Referral Fees shall be payable with respect to Customers who register after the date of termination. The Company reserves the right to withhold final payment for up to 120 days as necessary to properly calculate payments due. Following termination of this Agreement, Affiliate agrees to refund any Referral Fees received during such time as Affiliate was in breach of this Agreement.
Limitation of Liability. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE, WHETHER IN TORT, CONTRACT OR OTHERWISE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR ANY LOSS OF REVENUE, PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL) ARISING FROM OR RELATED TO THIS AGREEMENT OR THE AFFILIATE PROGRAM. WITHOUT LIMITING THE FOREGOING, THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: TOTAL REFERRAL FEES PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT OR $25,000.
Miscellaneous.
This Agreement shall be deemed to have been executed and performed in San Diego, California, and shall be governed by and construed in accordance with the laws of the State of California (without regard to conflict of law principles).
This Agreement contains the entire agreement between Company and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral, between Company and Affiliate with respect to the subject matter hereof. No waiver of any provision of this Agreement shall constitute a continuing waiver, and no waiver shall be effective unless made in a signed writing.
Upon termination of this Agreement, all rights and obligations of the parties under this Agreement will be extinguished, except for those rights and obligations that either by their express terms survive, or that are otherwise necessary for the enforcement of this Agreement
whether on the Affiliate’s site or otherwise, that reasonably would contradict anything in this Agreement.
This Agreement may not be assigned or otherwise transferred by Affiliate without the express written consent of the Company. This Agreement may be assigned by the Company, in its sole discretion, to a third party in the event of an acquisition, sale or merger of the Company.
If any provision of this Agreement is held illegal, invalid or unenforceable for any reason, that provision shall be enforced to the maximum extent permissible, and the other provisions of this Agreement shall remain in full force and effect.
Notices and other communications to you, as required or permitted to be given hereunder, that are posted on the Company Site and/or otherwise e-mailed to the e-mail address provided in your application, shall be deemed effective upon posting or e-mailing. Notice or other communications to Company shall be sent by e-mail to [email protected] and shall be deemed effective one business day after e-mailing.
Affiliate may not make any public announcement or press release about the terms or existence of this Agreement without Company’s prior written approval and consent.
Each party hereby represents that it has the authority and capacity to enter into this Agreement, including that all individuals executing this Agreement are 18 years of age or older.
CURRENT AFFILIATE REFERRAL FEE SCHEDULE CHOOSE 1 OF 2 OPTIONS
Option 1. One Time, Lump Sum Referral Fee. _____ [Initial here to select Option 1]
Once Affiliate refers 3 customers to the Company and those customers remain with the Company for 3 billing cycles, Affiliate will receive a one time, lump sum payment for each of those Customers and all future customers who remain with the Company for at least 3 billing cycles as follows:
Boutique Customers: $100 Marketplace Customers: $200 Warehouse Customers: $300 Dedicated Server Customers: $400 Option 2. On-going Payout: ____ [Initial here to select Option 2]
No On-Going Payout will be made until Affiliate has a minimum of 3 customers. Once 3 customers have been obtained by Affiliate, the On-Going Payout will begin.
No. of Active Customers Percent of Revenue* due Affiliate
3 – 10 15%
11 – 100 20%
more than 100 25%
*Revenue means fees collected from Customers for monthly recurring hosting services only. Professional or other services are not included in “Revenue”.
General Provisions Applicable to Both Options:
Referral Fees will be paid within 45 days of completion of the Customer’s 3rd billing cycle. The Company reserves the right to change the Referral Fees payable hereunder at any time by
providing email notice to you and/or reflecting such changes on the Company Payment Schedule. All such changes shall be effective immediately upon notice or posting. Referral Fees for Customers already referred to the Company will not be affected.
The Company reserves the right to adjust the Referral Fee payable to you, for up to one year, as a result of: chargebacks, reporting errors, fraudulent sales, fraudulent or automated clicks or intentional manipulation of the registration or sales process, all as determined in the Company’s sole and
