Last updated at 13:34 on 10.12.2005
AGREEMENT FOR TRUSTSOFT ADVERTISER AFFILIATE PROGRAM
This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the TrustSoft Advertiser Affiliate Program (the "Affiliate Program").
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND TRUSTSOFT, INC. ("TRUSTSOFT"). BY CHECKING THE "I AGREE" BOX BELOW, YOU ARE STATING THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND CONDITIONS, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT, AND YOU AGREE TO BE BOUND BY ITS TERMS. YOU CANNOT BECOME A MEMBER OF THE PROGRAM UNLESS YOU HAVE ACCEPTED EACH AND EVERY TERM AND CONDITION. IF YOU ARE AN INDIVIDUAL, YOU MAY ENTER INTO THIS AGREEMENT ONLY IF YOU ARE OF LEGAL AGE.
As used in this Agreement, "TrustSoft" or "us" means TrustSoft, Inc., and "you" or "Provider" means the applicant for participation in the Affiliate Program.
"Guidelines" means the Editorial and Trademark Usage Guide which contains the guidelines for use of TrustSoft trademarks and for creation of advertising of TrustSoft Programs, published and amended from time to time by TrustSoft and as available here.
"TrustSoft Program" means any software programs created and produced by TrustSoft, including without limitation, HistoryKillģ and our anti-spyware program.
"TrustSoft Site"means one or more websites on the World Wide Web, operated by TrustSoft, at which at least one TrustSoft Program is made available for download.
"Your Site" means one or more websites on the World Web Site operated by you, as Provider. You must identify Your Site in your Affiliate Program application.
"User" means a person accessing Your Site through the World Wide Web.
"Key" means the executable software license activation component, sometimes known as an "unlock key," purchased by the User and acquired from a TrustSoft Site, which enables the User to continue using the TrustSoft Program after termination of the evaluation period established by TrustSoft (if any), or which permits the User to access software maintenance and updating services for the TrustSoft Program after termination of the initial subscription period.
- Application to the Affiliate Program
Upon submitting complete and accurate application information to the designated TrustSoft Site, TrustSoft will make a good faith determination as to your acceptance into, or exclusion from, the Affiliate Program. Your application may be rejected for any reason, including without limitation, the following:
- You did not provide complete or accurate information on your application.
- The registration information ("whois") for your primary domain name does not match the information provided on your application.
- TrustSoft was unable to reach you by phone during business hours to verify your application information.
- TrustSoft determined, in its sole discretion, that your website was not suitable for the promotion of TrustSoft products. Reasons for such determinations may include, without limitation, posting of material that is unlawful, defamatory, obscene, harassing, assists in the conducting of illegal activity, promotes violence, or promotes or assists with copyright infringement.
- TrustSoft determined, in its sole discretion, that your methods of doing business or promoting products are unsuitable for the promotion of TrustSoft products. Reasons for such determinations may include, without limitation, posting of false or materially misleading advertising, dissemimation of any bulk e-mails, violation of the CAN-SPAM Act, or failure to protect consumer or user privacy.
- TrustSoft determined, in its sole discretion, not to conduct business with companies or individuals having places of business in the country of origin of your site or in which you reside. Reasons for such determinations may include, without limitation, unacceptable levels of credit card chargebacks or claims of credit card fraud, unacceptable levels of spamming, insufficient privacy protections, and insufficient legal recourse against affiliates.
- Your Services
Subject to the terms and conditions of this Agreement, you as Provider agree to provide certain services to promote and facilitate the ability of Users to access, inspect, and license for use a TrustSoft Program.
- Linking. TrustSoft will provide you with the Guidelines and selections of graphical artwork or text ads to use in linking to the TrustSoft Site. You agree to incorporate into the HTML files located at Your Site and display only such advertising material ("Ads") as meets the Guidelines. All advertising or other promotional materials regarding the TrustSoft Program that you create or produce must conform to the Guidelines and may not be used without prior review and approval by TrustSoft. You must send all such proposed materials to the following e-mail address: email@example.com. Materials not approved within ten (10) business days of submission will be considered disapproved and may not be used. In no event will advertising or promotional materials be approved if they are deemed by TrustSoft (in its sole discretion) to be materially false or misleading, or if they dilute, blur or tarnish the value of the TrustSoft trademarks. You will remain solely responsible for any and all liability associated with your advertising and promotional materials, regardless of approval of the materials by TrustSoft.
- Referrer Links. Except as provided at Section 3(f) below (regarding e-mail solicitations), you will incorporate the Uniform Resource Locator ("URL") provided by TrustSoft into the Ads to create a hypertext reference link ("Link") from Your Site to the TrustSoft Site from which the TrustSoft Program is downloaded. To permit accurate tracking, reporting, and referral fee accrual, TrustSoft will provide you with your own unique Link for referrals, to be used in all Links between Your Site and the TrustSoft Site. You must ensure that each of the Links between Your Site and the TrustSoft Site utilizes your unique Link for proper crediting of referrals. Links to the TrustSoft Site placed on Your Site pursuant to this Agreement which properly utilize such special link formats are referred to as "Referrer Links."
You will earn referral fees only with respect to activity on the TrustSoft Site occurring directly through Referrer Links. TrustSoft will not be liable to you with respect to any failure by you to use Referrer Links, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement.
Although TrustSoft takes reasonable precautions to avoid the loss of Referrer Links by preserving cookies to avoid removal of Referrer Links, a User may intentionally or unintentionally delete a cookie that contains the Referrer Link. This is a circumstance beyond our control, as TrustSoft is not responsible for any Userís deletion of cookies. In these cases, the Referrer Link may not be credited, and TrustSoft will not be liable for the omission.
- Special Webmasters. Certain members of the Affiliate Program ("Special Webmasters") are entitled to refer others to join the Program and to receive commissions on purchases made through referred sites. If you are entitled to be a Special Webmaster you will be notified of such appointment by separate e-mail communications from TrustSoft or its authorized agent. Special Webmasters must accept an addendum to this Agreement. If Your Site has been referred to the Program by a Special Webmaster, information about that relationship will be included in your Special Link.
- General Restrictions. As a Provider, you may not:
- directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money (including any rebate), or granting of any discount or other benefit) for using Referrer Links on Your Site to access the TrustSoft Site (e.g., by implementing any "rewards" program for persons or entities who use Referrer Links on Your Site to access the TrustSoft Site);
- read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any person or entity;
- in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of the TrustSoft Site;
- make any orders or subscription requests, or engage in other transactions of any kind on the TrustSoft Site on behalf of any third party, or authorize, assist, or encourage any other person or entity to do so;
- take any action that could reasonably cause any customer confusion as to TrustSoftís relationship with you, or as to the site on which any functions or transactions (e.g., download, search, order, and so on) are occurring;
- use any advertising or promotional materials that may dilute, blur or tarnish the trademark for a TrustSoft Program, or which may infringe on the intellectual property rights of any person, including without limitation, the trademark rights of a third party; or
- download the TrustSoft Program or purchase a Key to the TrustSoft Program during sessions initiated through the Referrer Links on Your Site, whether for your own use or for the use of any other person or entity, including your friends, relatives, or business associates, or for resale or use of any kind.
If TrustSoft determines, in its sole discretion, that you have engaged in any of the foregoing activities, TrustSoft may (without limiting any other rights or remedies available to us) terminate this Agreement and withhold any referral fees otherwise payable to you under this Agreement.
- E-Mail Solicitation Policy
SENDING BULK E-MAILS OF ANY KIND IS STRICTLY PROHIBITED AND WILL LEAD TO TERMINATION OF THE AGREEMENT WITHOUT PRIOR NOTICE AND WITHOUT PAYMENT OF ANY FEES.
If TrustSoft determines, in its sole discretion, that a Provider has distributed any bulk e-mails (whether or not the distribution is in compliance with the CAN-SPAM Act), then this Agreement will be terminated without notice. The Provider will be ineligible to sign up for another account, will not be paid any Fees; and any and all information about the Provider may be turned over to governmental authorities or other complaining parties (including AOL). Furthermore, the Provider will be held responsible and will indemnify TrustSoft for any damages or fines that it is required to pay as a result of any violation of these e-mail guidelines.
- Licenses and Proprietary Rights
Promotion and Development of TrustSoft Site
- License. TrustSoft grants to you, the Provider, a non-transferable, nonexclusive, revocable license, for the term of this Agreement and only on and within Your Site: (i) to copy, use, publicly display and transmit the graphic images and banner and other advertisements displaying the trademark for the TrustSoft Programs in connection with your performance of this Agreement; and (ii) to establish a Referrer Link from Your Site to the TrustSoft Site. You, as Provider, grant to TrustSoft a transferable, nonexclusive license, for the term of this Agreement and only on and within the TrustSoft Site, to establish a Referrer Link from the TrustSoft Site to Your Site.
- Marks. Without conveying any right, title or interest, TrustSoft and the Provider hereby agree that either party may make accurate informational references to the other partyís trade names, trademarks or service marks (collectively "Marks") in connection with performance of this Agreement, including without limitation, references in promotional materials, notices, and advertisements for the TrustSoft Site and Your Site (collectively "Sites"), subject to the condition that TrustSoft and Provider shall promptly cease any use of any Mark owned by the other party upon: (i) termination or expiration of this Agreement for any reason; or (ii) receipt of notice from the other party of abandonment of or dispute relating to any such Mark (except that neither party shall be required to alter any materials first published prior to the date of receipt of such notice). In the event that either party makes references to the other partyís Marks that are inaccurate or otherwise incorrect, then the owner of that Mark may notify the other party of the necessary correction(s), and the party receiving such notice shall implement such corrections as soon as reasonably practicable.
- Reservation of Rights. TrustSoft reserves all of its rights in the Ads, its icons, graphic images and text, any other images, its trade names and trademarks, and all other intellectual property rights. No Provider may modify any graphic image or text, or any other of TrustSoftís images, in any way. You agree to follow TrustSoftís Guidelines as the same may be in effect from time to time.
Fees and Payment, Order Processing
- TrustSoft Obligations. TrustSoft agrees to: (i) develop, implement and maintain the TrustSoft Site so as to permit Users to download the TrustSoft Program for an evaluation period, at the end of which period the functionality of the TrustSoft Program ceases if a Key is not purchased by the User; and (ii) make available to new Users the most current version of the TrustSoft Program. No warranty is made that the portion of the TrustSoft Program software limiting the functionality of the TrustSoft Program to the evaluation period cannot be defeated by a User, but TrustSoft shall endeavor to maintain the security of its evaluation version to the extent practicable. No warranty is made that the then-current version of the TrustSoft Program shall function with the latest version of any particular Internet browser. All warranties are limited as set forth in the then-applicable End User License Agreement.
- Provider Obligations. The Provider agrees to: (i) review the TrustSoft Site so as to conform to all marketing and promotional guidelines established by TrustSoft from time to time, including the Guidelines; and (ii) conduct the Providerís promotional and marketing activities as specified in this Agreement and in the Guidelines.
- Mutual Promotion Obligations. TrustSoft and the Provider shall undertake good faith, commercially reasonable efforts to comply with the terms of this Agreement.
TrustSoft will pay each Provider sales and advertising commissions ("Fees"), based on the aggregate number of Keys for all Programs purchased by Users in any given calendar month. Each Key purchase must be associated with a Referrer Link assigned to that Provider.
Except as set forth below, the commission rate shall be thirty percent (30%) of the net amount actually paid by the User who purchases a Key.
In the event that there is a charge-back to TrustSoft from a Userís credit card service, or the Userís payment is refunded for any reason, TrustSoft will deduct the corresponding referral Fee from a later payment and indicate that there was a refund granted or a charge-back claimed. If there is no later payment to the Provider, TrustSoft will send the Provider a bill for the referral Fee.
Fees due to the Provider will be paid (postmarked) within thirty (30) business days following the end of each calendar month. If the referral fees payable to you for any calendar month are less than $50 (or a higher amount as chosen by you), TrustSoft will hold payment until the total amount due is at least the minimum payout so chosen (or at termination of this Agreement). The Provider must notify TrustSoft within sixty (60) days after the end of each month if Fees are not received, so that payment can be stopped and a new check issued. Alternatively, you may designate an account for electronic transfer of Fees exceeding $500 per month. However, accounts for Providers located outside the U.S. will be subject to a minimum payout of $100, and wire transfer information may be required. Recipients of wire transfers will be charged TrustSoftís wire transfer fees, which will be deducted from the amount otherwise paid.
Notwithstanding the foregoing commission rate, TrustSoft may from time to time offer special commission rates to all Providers which may apply to some or all of the TrustSoft Programs for a limited period of time. In addition, certain Providers may be offered increased commission rates based on superior performance.
Warranties and Disclaimer
- Method of Calculation. For a sale to be eligible to earn a Fee allocated to the Provider, the User must click-through a Referrer Link from Your Site to the TrustSoft Site, and must download the Program during that session. The initial session ends upon one of the following events: (i) the User downloads the Program, or (ii) the User clicks away from the TrustSoft Site to another site. The downloaded Program will be accompanied by a software code such that a subsequent purchase of a Key will be matched to the Referrer Link assigned to you, as Provider. TrustSoft will only pay referral Fees after downloading and the purchase of a Key matched to that download has occurred.
- Right to Reject User Contacts. TrustSoft reserves the right to reject User requests for a download of the Program or of a Key if there is a failure to comply with any requirements that TrustSoft may establish periodically, or for reasons related to technical requirements, or if TrustSoft has reason to believe that the transaction may be illegal or fraudulent, or the charge to a Userís credit card is denied or charged back for any reason.
- Customer Service. Users who download the TrustSoft Program and/or the Key will be deemed to be customers of TrustSoft. Accordingly, all TrustSoft rules, policies, and operating procedures concerning customer orders, product sales, customer service, and end-user license agreements will apply to those customers. TrustSoft may change policies and operating procedures at any time. For example, TrustSoft will determine the prices to be charged for the Program in accordance with its own pricing policies. Prices and availability may vary from time to time. TrustSoft will be responsible for all aspects of order processing and fulfillment. Among other things, TrustSoft will prepare order forms, process payments, and provide customer service.
- Taxes. All sales, use, service, income or other taxes of any governmental authority, howsoever levied, based on or related to Fees you receive from TrustSoft are the responsibility of and shall be paid by you, the Provider. Each party shall be responsible for and pay all sales, use, service, income or other taxes of any governmental authority, however levied, based on or related to such partyís sales or licenses of goods and services to or from any third person.
- Excessive Chargebacks or Refunds. TrustSoft will terminate this Agreement and will not pay any Referral Fees otherwise due to you if the chargeback or refund request rate for Users referred by you exceeds three-quarters of one percent (0.75%) of your total referrals in any thirty (30) day period.
Limitation of Liability
- TrustSoft Warranty. TrustSoft warrants to the Provider that: (i) TrustSoft has the right and authority to enter into and perform its obligations under this Agreement; (ii) TrustSoft shall perform its obligations under this Agreement in a commercially reasonable manner.
- Provider Warranty. The Provider represents and warrants to TrustSoft that: the Provider has the power and authority to enter into and perform its obligations under this Agreement.
- Disclaimers. EXCEPT AS EXPRESSLY STATED AT SECTIONS 6(a) AND 6(b), THE PARTIES MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT. TRUSTSOFT MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE TRUSTSOFT PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NO INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, TRUSTSOFT MAKES NO REPRESENTATION THAT THE OPERATION OF THE TRUSTSOFT SITE OR THE TRUSTSOFT PROGRAM WILL BE UNINTERRUPTED OR ERROR-FREE, AND TRUSTSOFT WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
EXCLUSIVE OF LIABILITY UNDER SECTION 8 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TRUSTSOFTíS TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE TOTAL FEES DUE TO THE PROVIDER HEREUNDER.
Provider agrees to indemnify, hold harmless and defend TrustSoft and its directors, officers, employees and agents from and against any action, claim, demand or liability, including reasonable attorneyís fees, to the extent such claim arises out of: any violation or breach of this Agreement or any matter stated in this Agreement as being the sole responsibility of the Provider; or (ii) any gross negligence or willful misconduct of the Provider; (c) false or materially misleading advertising originating with the Provider, or violations of anti-spam laws and regulations, including without limitation, the CAN-SPAM Act.
Term and Termination
- Term. The term of this Agreement shall commence upon acceptance of the Providerís application by TrustSoft by the Provider and shall continue until terminated by either party.
- Termination. This Agreement shall may be terminated by either party: (i) with or without cause, upon ten (10) days written notice to the other party; (ii) immediately upon any breach of a material provision of this Agreement; (iii) immediately in the event a party makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against such party, or if a receiver or trustee is appointed for all or any part of the property or assets of such party; (iv) by a written agreement executed by the parties; or (v) automatically by TrustSoft, in the event the Link is removed from Your Site or no download activity is coded to your Referrer Link for a period of sixty (60) days.
- Effect of Termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from Your Site, all links to the TrustSoft Site, and all TrustSoft trademarks, trade dress, and logos, and all other materials provided by or on behalf of TrustSoft to you pursuant hereto or in connection with the Program. You are eligible to earn referral fees only on sales of the Program Key that occur during the term, and Fees earned through the date of termination will remain payable only if the Key was purchased during the term and there was no refund within ninety (90) days thereafter. TrustSoft may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
- Independent Contractors. The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
- No Assignment. You may not assign your rights, duties or obligations under this Agreement to any person or entity, in whole or in part without the prior written consent of TrustSoft.
- No Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
- Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
- Notices. All notices shall be in writing and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested or overnight courier providing proof of delivery, or when sent by facsimile or e-mail confirmed by regular mail. All notices shall be directed to the parties at the respective addresses given on the parties respective Sites, or in your application to participate in the Program. It is your responsibility to keep your contact information up to date. You will be charged with knowledge of the contents of any notice which cannot be delivered to the last address provided to TrustSoft, or which you refuse to accept for delivery.
- Amendment. TrustSoft may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the scope of available referral fees, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
- Governing Law; Arbitration. These terms and conditions are governed by the laws of the State of Texas, U.S.A., excluding the application of its conflict of law rules. The United Nations Convention for the International Sale of Goods shall not apply. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be conducted in Houston, Texas, in English. Within 15 days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within 10 days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association. Consistent with the expedited nature of arbitration, each party will, upon the written request of the other party, promptly provide the other with copies of documents relevant to the issues raised by any claim or counterclaim. Any dispute regarding discovery, or the relevance or scope thereof, shall be determined by the chair of the arbitration panel, which determination shall be conclusive. All discovery shall be completed within 60 days following the appointment of the arbitrator(s). Any demand for arbitration must be filed within one (1) year after such dispute, claim or cause of action arose or shall be forever barred, regardless of any law or regulation to the contrary. The arbitrators shall not award consequential or punitive damages in any arbitration initiated under this section. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
- Survival. The definitions of this Agreement and the respective rights and obligations of the parties under Sections 5, 6(c), 7, 8 and 10 shall survive any termination or expiration of this Agreement.
- Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
- Entire Agreement. This Agreement constitutes the complete and exclusive statement of all understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
- Void Where Prohibited By Law. This Agreement is null, void and of no effect if the transactions contemplated in this Agreement (including without limitation, use of the TrustSoft Programs by any Users who purchase Keys through the Providerís Referrer Links) are prohibited by law or regulation, or if the Provider is an individual who is not at least 18 years or age or otherwise lacks the legal capacity to enter into a binding contract.