Referral Program Terms and Conditions
1. Referral Program
- These Referral Program Terms and Conditions govern the respective rights and obligations of Silicon Valley Web Hosting LLC ("SVWH") and the program participant (the "Referrer"). These Terms and Conditions apply to the Referrer's participation in the SVWH Hosting Referral Program (the "Referral Program") whereby Referrer will refer to SVWH potential customers ("Prospects").
- SVWH may modify the content, terms and conditions of this Referral Program from time to time. Referrer should re-visit SVWH's web site from time to time to stay abreast of such changes. Any change to this Referral Program will be effective immediately when posted to SVWH's web site.
- Referrer acknowledges that Referrer has read and agrees to be bound by the following Referral Program Terms and Conditions.
- Referrer will actively refer Prospects to SVWH. A Successful Referral is one which satisfies the following criteria:
- Referral Process.
Hosting Services. Referrer completes the Referral form ("Referral Form") from the SVWH site. It is Referrer's responsibility to ensure that SVWH receives the Referral Form; SVWH will not be responsible for errors in transmission or other factors affecting SVWH's receipt of the Referral Form. After the Prospect is contacted by SVWH, the Prospect orders the Hosting Service under the individual or company name listed on the Referral Form, Prospect maintains the Hosting Service ordered for a minimum of ninety-one (91) consecutive calendar days and Prospect pays for one (3) full months of the Hosting Service.
- In order for Referrer to be eligible for the Credit and/or Payment, the Referral Form must be completed prior to the Prospect prior to Prospect being contacted by SVWH and ordering the Service ; and
- The Service is ordered in the Prospect's name and contains complete, accurate and current billing and contact information specific to the Prospect and cannot match any other contact information in SVWH's customer database; and
- No Credit or Payment will be made for self-referrals or plans Referrer purchases for Referrer's own use; and
- The Prospect is not a previous customer of SVWH who received Services from SVWH during the twelve (12) months prior to the new Service Order Date (as defined by the SVWH Terms of Service); and
- The Prospect is not a previous customer of SVWH's, whose Services were terminated by SVWH for non-payment or other violation of SVWH's standard terms and conditions.
- Referral Process.
- All Prospect information will expire sixty (60) days after being submitted. SVWH in its sole discretion may accept or reject any Prospect.
- All Prospect Orders are subject to credit approval, availability, and other SVWH terms and conditions.
3. Compensation and Benefits.
Payment. Referrer shall receive a payment for each Successful Hosting Referral as follows
- For each Successful Dedicated Referral made pursuant to this agreement, Referrer shall receive a payment equal to the lesser of: (a) first month's Net MRC for such Successful Dedicated Referral or (b) Two Thousand Five Hundred Dollars ($2,500) (the "Payment"). "Net MRC" means the monthly recurring charge for hosting service and qualified add-ons for the Successful Dedicated Referral excluding: (x) the monthly recurring charges for any Prospect Order that is cancelled on or before the date on which SVWH calculates the cash payment.
- For each Successful Shared or Virtual Dedicated Referral made pursuant to this agreement, Referrer shall receive a payment equal to the greater of: (a) first month's Net MRC for such Successful Dedicated Referral or (b) Seventy Five Dollars ($75) (the "Payment"). "Net MRC" means the monthly recurring charge for hosting service and qualified add-ons for the Successful Dedicated Referral excluding: (x) the monthly recurring charges for any Prospect Order that is cancelled on or before the date on which SVWH calculates the cash payment.
- Referrer shall bear all taxes, duties, levies, and other similar charges (and any related interest and penalties), however designated or imposed on it as a result of the existence or operation of the Payment or Referral Program Agreement, including any income, sales, or use tax on profits which may be levied against it.
- No Payment will be applied to accounts that are past-due or for accounts that are cancelled before the conditions for payment of the Payment are met.
- Payments will not be paid for accounts established through any channels other than as described herein. The Payment will be mailed to Referrer at the address listed on the Referral Form within thirty (30) days following the month in which the conditions for payment of the Payment as described herein are met.
- Within thirty (30) days following submission of a Prospect, Referrer must complete and submit to SVWH a completed IRS Form W-9. SVWH will not make any payments to Referrer until SVWH has received a completed Form W-9 from the Referrer. The Form W-9 is located at: http://www.irs.gov/pub/irs-fill/fw9.pdf and, once completed, should be faxed to SVWH at 1-866-306-4216. If any information submitted by the Referrer on the W-9 is incomplete, incorrect or inaccurate, payments due Referrer may be delayed or withheld at SVWH's sole discretion. It is the Referrer's responsibility to ensure that SVWH has a complete and accurate Form W-9 on file.
4. Referrer's Representations and Warranties.
Referrer hereby represents and warrants to SVWH, and agrees that during the Term of the Agreement Referrer will ensure that: (a) The information submitted by Referrer as part of the Referral Program is true and correct in all material respects; (b) Referrer will comply with all applicable laws, rules and regulations in the conduct of its business; (c) Referrer will not make any representations concerning the Services except those that have been approved or published by SVWH; (d) Referrer will not distribute any documents or materials describing the Services except those that have been approved or published by SVWH; and (e) Referrer has obtained from Prospect's any and all approvals and permissions that are necessary for Referrer to submit the Prospect's information to SVWH.
5. SVWH's Acceptable Use Policy.
Referrer will abide by and utilize, the Referral Program, SVWH's other products and services, and the Referrer web site, only in accordance with the Acceptable Use Policy (the "Acceptable Use Policy") that SVWH posts on its web site, as such Acceptable Use Policy may be changed by SVWH from time to time. The Acceptable Use Policy is hereby incorporated herein and made a part hereof by this reference. Referrer shall familiarize itself with the Acceptable Use Policy and periodically access SVWH's web site to determine if SVWH has made any changes thereto.
6. Referrer's Responsibilities.
- Referrer will conduct itself in a professional manner and will maintain a reputation for fair dealing and exemplary service among its customers or clients. Referrer will not make any statement, or take any action, that could reasonably be expected to reflect poorly on SVWH or on the reputation of SVWH or its products and services.
- Referrer will cause its personnel who are responsible for Referrer's activities under this Agreement to remain well-informed concerning SVWH's products and services. Among other things, Referrer will cause such personnel to review SVWH's web site occasionally to ensure that such personnel are reasonably familiar with SVWH's product offerings, pricing, promotions and service terms and conditions.
7. SVWH Intellectual Property.
- SVWH's trademarks, tradenames, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of SVWH. Except as otherwise provided in the Agreement, Referrer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of SVWH.
- Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Referrer sends to SVWH relating to the Services will be treated as being non-confidential and non-proprietary. SVWH may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.
8. Limited Warranty.
- SVWH represents and warrants to Referrer that SVWH will provide Services hereunder in the same manner as SVWH provides Services to other customers at the same level and type of service.
- EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, SVWH MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND SVWH HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO REFERRER HEREUNDER IS PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. SVWH DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
9. Limitation of Liability.
- IN NO EVENT WILL SVWH'S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER, OR THIS AGREEMENT, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE DISCOUNT PAID BY SVWH TO REFERRER HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
- SVWH CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. SVWH WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
- EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, OR (EXCEPT AS PROVIDED IN SECTIONS 10 AND 11) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
- The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 9(c) shall not apply to liability arising on account of a party's breach of Section 11 or to Referrer's indemnification obligations under Section 10.
10. Indemnification of SVWH.
Referrer shall defend, indemnify and hold harmless SVWH, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the "SVWH Indemnitees"), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys' fees) which any of the SVWH Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Referrer's breach of any representation, warranty, or covenant contained in this Agreement, (ii) services provided by the Referrer to any SVWH customer, and (iii) claims or actions of third parties alleging unfair or deceptive trade practices or false advertising in connection with statements or claims made by Referrer pertaining to SVWH's Services.
11. Confidentiality; Non-Solicitation.
- "Proprietary Information" means all technical, business and other information of a party (i) that is not generally known to the public, (ii) that derives value, economic or otherwise, from not being generally known to the public or to other Persons who can obtain value from its disclosure or use, and (iii) which information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof.
- Each party will not, without the prior written consent of the other party, use or disclose to any Person any Proprietary Information of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder. Subject to Section 11(b), each party will (i) treat the Proprietary Information of the other party as secret and confidential, (ii) limit access to the Proprietary Information of the party to those of its employees who require it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Proprietary Information of the other party to any other Person without the prior written consent of the other party.
- Notwithstanding Section 11(a), the following shall not be considered Proprietary Information: (i) any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party, (iv) any information that is disclosed to the receiving party without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.
- Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Proprietary Information of the other party (including all copies thereof) in its possession or control.
- During the term of this Agreement and for two years following expiration or termination of this Agreement, Referrer will not, directly or indirectly, solicit or recruit the services of any employee of SVWH performing services under this Agreement, while such employee is employed by SVWH and for a period of six months after such employee has left the employment of SVWH.
- Independent Contractor. SVWH and Referrer are independent contractors and nothing contained in this Agreement places SVWH and Referrer in the relationship of principal and agent, master and servant, or partners in a joint venture. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
- Governing Law; Jurisdiction. The validity and effect of this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Transactions Act do not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT MUST BE BROUGHT IN A GEORGIA STATE OR FEDERAL COURT LOCATED IN FULTON COUNTY, GEORGIA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
- Mandatory Arbitration. Notwithstanding Section 12(b) above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Referral Program or the Services must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, with a recognized provider of arbitration services agreed upon by both parties, before a single arbitrator, appointed in accordance with such rules. Any such arbitrator must render a reasoned opinion in writing only where the amount in dispute exceeds $100,000. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in San Jose, California. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.
- Headings. The headings herein are for convenience only and are not part of this Agreement.
- Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Referrer or SVWH, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Referrer and SVWH. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms and Conditions may be modified from time to time by SVWH in its sole discretion, which modifications will be effective upon posting to SVWH's web site.
- Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
- Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers (i) for the Referrer, SVWHs billing address of record for Referrer, and (ii) for SVWH, as designated on SVWH's web site for the giving of notices. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein.
- Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
- Assignment; Successors. Referrer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of SVWH. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. SVWH may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Referrer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
- Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, SVWH's records of such execution shall be presumed accurate unless proven otherwise.
- Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
- No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Referrer acknowledges and agrees that Microsoft, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Referrer as if it were a party to this Agreement.
- Government Regulations. Referrer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Referrer operates or does business.
- Marketing. Referrer agrees that during the term of this Agreement SVWH may publicly refer to Referrer, orally and in writing, as a referral partner of SVWH. Any other public reference to Referrer by SVWH requires the written consent of Referrer.
13. International Provisions.
If Referrer maintains an office outside the United States, conducts business with Persons other than U.S. citizens, or at any time offers to resell Services to any Person that is not a U.S. citizen, the following provisions will apply:
- Referrer will comply with all laws relating to the conduct of business practices that prohibit any gratuities or inducements. Referrer acknowledges that SVWH is subject to certain United States laws, including but not limited to the Foreign Corrupt Practices Act of 1977 and any amendments thereto, which apply to activities carried out on SVWH's behalf outside the United States. Referrer agrees neither to take nor omit to take any action if such act or omission might cause SVWH to be in violation of any such laws. Upon written notice from SVWH, Referrer shall provide such information as SVWH may reasonably consider necessary to verify compliance by Referrer with the provisions of this Section.
- The Services may require a license for export from the U.S. Government that requires advance disclosure of the ultimate consignee and all parties to the sale, and prohibits diversion, transshipment, or re-exportation out of the United States contrary to U.S. law and regulations by any party. Referrer agrees to furnish all documentation required by the U.S. Government in connection with obtaining any required export license, and agrees that unauthorized diversion, transshipment or re-exportation of the SVWH's Services in violation of the export license or any applicable law shall not be permitted.
- The parties hereby exclude any application of the United Nations Convention on Contracts in the International Sale of Goods, the 1974 Convention on the Limitation Period in the International Sale of Goods, and the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.
For purposes of this Agreement, the following terms have the meanings specified below:
- "Person" means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof.
- "Order" means the Order submitted to SVWH for Services, whether such Order is submitted online through SVWH's Web site, telephone, or on a written Order form.
- "Services" means the Web hosting service provided by SVWH in response to an Order whereby SVWH provides specified connectivity, storage space and bandwidth for the hosting of a Customer Web site as more particularly described in the applicable Service Description. Services as used herein shall include Dedicated Services.
- "Hosting Services" means the SVWH "Hosting Services" means the SVWH "Dedicated", "Server Special", "Virtual Dedicated", and/or "Shared".
- "Service Description" means the applicable documents made available by SVWH to describe the applicable Services at the time the Order is accepted by SVWH.
- "Successful Hosting Referral" Means a Referral for the SVWH Hosting Services made pursuant to Section 2(a)(1)(i) and which meets the qualifications described in Section 2.