Affiliate Agreement
This Affiliate Agreement (this "Agreement") establishes the terms and
conditions for the Affiliate Program of Pool.com Inc. ("Pool" or "we").
BY CLICKING ON THE "I AGREE" BUTTON AT THE END OF THE AFFILIATE PROGRAM
APPLICATION, THE PERSON OR COMPANY NAMED IN THE APPLICATION ("Affiliate" or
"you") AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND
POOL WILL AUTOMATICALLY BECOME COUNTER-PARTY TO THIS AGREEMENT. PLEASE READ
THIS ENTIRE AGREEMENT CAREFULLY BEFORE AGREEING TO ITS TERMS.
You will complete and submit the Affiliate Program application to Pool. Pool
may accept or reject any Affiliate Program application in its sole discretion.
You agree to provide and maintain true,accurate, current and correct
information about yourself. Pool will notify you via email if your application
has been accepted.
You will, at your own cost and expense, establish Pool-approved banners and/or
text links to the Pool home page at http://www.pool.com
in order to induce potential customers to purchase Pool's services
("Services"). We will provide you the guidelines, graphical artwork and
permitted text to use in linking to our home page, and you will use only
approved graphic images and text for purposes of linking to the Pool
website(s). To permit accurate tracking, reporting and fee accrual, we will
provide you with a unique tracking URL(s) for your use only that contains your
unique affiliate ID ("Affiliate Link"). It is your responsibility to test that
you have linked up correctly as we are not liable for your failure to link up
properly.
You will not send Spam messages to customers or potential customers that
promote Pool's services or use Affiliate Link. "Spam" means emails and messages
that are sent by you, directly or indirectly, which: (i) contain false or
misleading statements; (ii) do not truthfully identify the source or the
originating IP Address; or (iii) do not contain an online and real time remove
option.
You may not issue any press release with respect to this Agreement or your
participation in this marketing program without our prior written consent.
You will be solely responsible for your own websites and for the material
appearing on them. You represent and warrant that you will not place links to
us on any website that contains any material which is libelous, unlawful or
otherwise unsuitable. Unsuitable sites include without limitation websites
which display violence, pornography, illegal acts, promote violence, promote
discrimination based on race, sex, religion, nationality, disability, sexual
orientation or age, promote illegal activities and/or violate the intellectual
property rights of others.
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We will make available to you graphic images and text for purposes of linking
customers from your website to our home page through Affiliate Link. These pre
approved banners and text links are available at our banner page. You may NOT
modify these graphic images or text, or any other of our images, in any way.
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Each party will employ commercially reasonable security safeguards to protect
customer information from loss, misuse and unauthorized alteration during its
storage, processing and transmission, including the use of commercially
available computer security products, as well as industry standard security
procedures and practices.
Each party will comply with its respective privacy policies and statements in
handling, using and disclosing any customer information. You will comply with
Pool's Privacy Statement in all material respects and will not use or disclose
any customer information in a manner inconsistent with such Privacy Statement.
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Each party shall retain all right, title and interest in and to its respective
trademarks and service marks ("Marks"), promotional material and information
relating to the Pool Services ("Content") and other intellectual property
worldwide, subject to the limited license granted to the other hereunder in
connection with such party' s performance of this Agreement.
Each party (a "Licensor") hereby grants to the other party hereto (a
"Licensee") a non-exclusive, worldwide, non-transferable, non-sublicensable,
royalty-free and limited license to use its Marks and Content solely in
connection with its marketing and promotion obligations under this Agreement.
All such use shall be in accordance with each party' s reasonable policies
regarding advertising and trademark usage as shall be established or changed
from time to time in each party' s sole discretion upon written notice to the
other. All usage by Licensee of Licensor' s Marks shall include the appropriate
registered or unregistered trademark symbol and, where space reasonably
permits, a legend stating that the "[Licensor' s Mark] is a registered
trademark of [Licensor]" or a reference to the effect that third party marks
are owned by their respective owners. Pool' s current guidelines for the use of
the Pool Marks are published on the affiliate information site.
The Licensee hereby acknowledges and agrees that (i) the Licensor' s Marks and
Content are owned solely and exclusively by the Licensor, (ii) except for the
limited license granted pursuant to this Agreement, the Licensee has no rights,
title or interest in or to the Licensor' s Marks or Content, and (iii) all use
of the Licensor' s Marks or Content by Licensee shall inure to the benefit of
Licensor. Licensee shall not apply for registration of the Licensor' s Marks
(or any mark confusingly similar thereto) anywhere in the world, and shall not
engage, participate or otherwise become involved in any activity or course of
action that diminishes and/or tarnishes the image and/or reputation of
Licensor' s Marks. Upon the expiration or termination of this Agreement, each
party shall immediately cease using the Marks or Content of the other, and
shall remove such Marks and Content from their respective Sites, except as the
parties may agree in writing.
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Upon your request, Pool may agree to develop a co-branded website on your
behalf using each party' s Marks, and co-brand the designated pages of the Pool
Services. Additional fees, including without limitation a set-up fee, may apply
to the creation of a co-branded website, as set forth on Pool' s website. All
co-branded pages will have the Pool site' s look and feel. Pool will host the
co-branded website and provide access for customers to the Services via the
co-branded website. Pool will make the Services available to customers subject
to the terms and conditions of Pool' s standard user agreement. Pool will be
responsible for the operation of the Services, the co-branded website and the
Pool website. The co-branded website will reflect that it is operated by Pool
and will not be designed in a way that implies that the Services are being
provided by the Affiliate (provided that the co-branding does not violate this
provision). All purchases of Services made on the co-branded website will be
Qualifying Purchases.
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We will pay you referral fees on all sales of Services to third parties through
your Affiliate Link. For a sale to be eligible to earn a Fee (a "Qualifying
Purchase"), the customer must click through your Affiliate Link from your site
to our site, and purchase a Service during a session. The session ends upon the
earlier to occur of: (i) 30 days after the customer' s initial click through;
or (ii) the customer follows a third party' s Affiliate Link to the Pool
website(s).
Pool will pay to Affiliate Ten Percent of the "Net Revenue" generated from
Qualifying Purchases ("Fees"). "Net Revenue" means gross fees actually
collected from a customer for a Qualifying Purchase, including without
limitation backorder registration fees and fees collected from completed
auctions of backordered domains, less refunds, discounts, credit card and bank
fees (Pool will deduct 5% for credit card and bank fees) and any taxes.
Notwithstanding the foregoing, if you are also a registrar partner, the
aggregate fees paid to you by Pool for any particular backordered domain,
including fees under your registrar agreement with Pool, cannot exceed 47.5% of
the gross fees received by Pool by the customer for such domain, and Pool will
adjust the Fees accordingly. Service fees may be amended from time to time in
Pool' s sole discretion. Pool may, in its sole discretion, change the amount of
the revenue share fee paid to Affiliate. Pool will notify Affiliate regarding
any change in such fee.
Pool will pay to Affiliate all Fees due to Affiliate for a particular calendar
month within sixty days after the end of such month. Payments will be made via
check. You will only be sent a check if the amount due is more than $50.00.
However, if the Fees payable to you are less than $50.00 in any calendar month,
then we may hold those fees until the total amount due is more than $50.00
until this Agreement is terminated. If the amount due for a particular pay
period is negative then the negative amount will be carried over into the
following pay period. At the time of payment, Pool will also send to Affiliate
a detailed summary of all Fees owed to Affiliate for Services. In the event
Pool experiences a charge-back or otherwise discounts or refunds a customer for
all or any portion of a Service fee, and Pool has already paid Affiliate a Fee
for such Service, Pool will deduct the payment made to Affiliate in connection
with such Service from a current or future payment to Affiliate.
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Each party will comply with all applicable laws governing its performance of
and activities under this Agreement. Affiliate is and will be solely
responsible for any recommendations or advice it may offer to its customers.
Each party will provide any services required by it pursuant to this Agreement
in a workmanlike manner. Each party hereto represents and warrants to the other
party that: (i) the execution, delivery, and performance of this Agreement will
not conflict with or result in any breach of or a default under, any material
agreement, instrument or undertaking to which it is a party or by which any of
its property is bound; (ii) that the use, reproduction, distribution,
transmission, or display of its respective Content and Marks pursuant to this
Agreement will not constitute an infringement, be defamatory or violate any
third party' s rights of publicity, privacy or personality.
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You agree to release, indemnify, and hold Pool, our partners, contractors,
agents, employees, officers, directors, shareholders, affiliates and assigns
harmless from all liabilities, claims, damages, costs and expenses, including
reasonable attorneys' fees and expenses, relating to: (i) a violation of
applicable law asserted against Pool to the extent caused by your acts or
omissions in the course of your performance of this Agreement, (ii) a breach of
or inaccuracy in your representations and warranties set forth in this
Agreement, or (iii) your error or omission in the performance of or failure to
perform your covenants set forth in this Agreement; except to the extent such
claims result from our acts or omissions, or materials provided by it. When we
are threatened with suit or sued by a third party, we may seek written
assurances from you concerning your promise to indemnify us; your failure to
provide those assurances may be considered by us to be a material breach of
this Agreement.
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AFFILIATE ACKNOWLEDGES AND AGREES THAT THE AFFILIATE PROGRAM AND THE SERVICES
ARE PROVIDED "AS IS", AND THAT POOL MAKES NO REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS, ON ITS
OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS, ANY WARRANTIES AS TO
THE USEFULNESS, ACCURACY, RELIABILITY, NON-INFRINGEMENT OR EFFECTIVENESS OF
SUCH SERVICES OR THE AFFILIATE PROGRAM, OR THAT ANY OF SUCH SERVICES OR THE
AFFILIATE PROGRAM WILL BE UNINTERRUPTED, ERROR FREE, OR THAT DEFECTS HAVE OR
WILL BE CORRECTED, OR THAT SUCH SERVICES OR THE AFFILIATE PROGRAM WILL MEET THE
NEEDS OF ANY PARTY. WITHOUT LIMITING THE FOREGOING, POOL DISCLAIMS ALL
WARRANTIES OF REASONABLE SKILL OR CARE. IN NO EVENT WILL POOL BE LIABLE TO
AFFILIATE FOR ANY FAILURE, DISRUPTION, DOWNTIME, INCORRECT LINKAGE OR OTHER
NON-PERFORMANCE OF THE SERVICES OR THE AFFILIATE PROGRAM. POOL' S SOLE
LIABILITY, AND AFFILIATE' S SOLE REMEDY, WITH RESPECT TO SUCH WARRANTY WILL BE
POOL'S OBLIGATION TO CORRECT ERRORS WITH A LEVEL OF EFFORT COMMENSURATE WITH
THE SEVERITY OF THE ERROR.
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IN NO EVENT WILL EITHER PARTYS LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT FROM ANY CAUSE EXCEED US $100,000. IN ADDITION, IN NO EVENT WILL
EITHER PARTY, ITS AFFILIATES, OR EACH OF THEIR DIRECTORS, OFFICERS, EMPLOYEES
OR AGENTS BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING BUT NOT LIMITED TO
LOSS OF REVENUES OR LOSS OF PROFITS), EVEN IF SUCH PARTY, ITS AFFILIATES, OR
ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY
OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO SERVICES, OR ANY OTHER
SUBJECT MATTER OF THIS AGREEMENT. NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OR
DAMAGE CAUSED BY DELAY IN FURNISHING SERVICES TO THE OTHER PARTY OR ANY OTHER
PERFORMANCE UNDER THIS AGREEMENT. Neither party will be liable for delays in
data transmission.
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This Agreement will take effect when you activate a link to our website and
will be continuous unless and until either party notifies the other party, in
writing, that it wishes to terminate the Agreement, in which case, the
Agreement will terminate immediately. TERMINATION IS AT WILL BY EITHER
PARTY. In addition, this Agreement will automatically terminate if your
affiliate relationship becomes Inactive. An affiliate relationship will become
Inactive if a Qualified Purchase has not occurred from your Affiliate Link for
a period of forty-five consecutive calendar days.
In the event you breach any provision of this Agreement and/or we receive a
complaint against a particular Affiliate Link, we may in our sole discretion,
disable that particular Affiliate Link with or without notice, temporarily or
permanently. In such cases, it is our sole option to suspend or disable your
links rather than completely terminating this Agreement. The fact that we chose
to leave some Affiliate Links open does not entitle you to have all Affiliate
Link(s) operational or reactivated, nor does it entitle you to compensation for
the disabled Affiliate Links.
The following will apply upon the effective date of termination: (i) you will
remove all banners and text links to the Pool website and/or we may disable
your Affiliate Link; (ii) all rights and licenses given to you under this
Agreement will terminate immediately; (iii) you will return all
confidential information and cease use of any of our trade names, trademarks,
service marks, logos, banners and other designations of Pool.com; (iv) we
may withhold Fees for up to one hundred and eighty days to ensure that the
correct amount is paid and that any fraud has been reversed; (v) if any
link remains open or if customers obtained through the Affiliate ID are still
allowed to purchase Services this will not constitute a continuation or renewal
of this Agreement; and (vi) you will be entitled to only to those unpaid
Fees, if any, earned by you on or prior to the date of termination. You will
not be entitled to Fees with respect to customer activities made after the
termination date.
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YOU UNDERSTANDS THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY), ENTER INTO
MARKETING TERMS WITH OTHER WEBSITES OR MARKETERS ON THE SAME OR DIFFERENT TERMS
AS THOSE PROVIDED TO YOU HEREIN AND THAT SUCH OTHER WEBSITES OR MARKETERS MAY
BE SIMILAR AND EVEN COMPETE WITH YOU. YOU UNDERSTAND THAT WE MAY RE DIRECT
TRAFFIC AND USERS FROM OUR SITE TO ANY OTHER WEBSITE THAT WE DEEM APPROPRIATE
IN OUR SOLE DISCRETION, WITHOUT ANY ADDITIONAL COMPENSATION TO YOU.
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Except as otherwise provided in this Agreement, you agree, during the term of
this Agreement, that we may revise the terms and conditions of this Agreement
and/or change the services provided under this Agreement at any time. Any such
revision or change will be binding and effective ten (10) calendar days after
the revised Agreement or change to the service(s) is posted on the Pool.com
website. You agree to periodically review our website, including the current
version of this Agreement available on our website, to be aware of any such
revisions. If you do not agree with any revision to the Agreement or change to
the services, you may terminate this Agreement at any time. By continuing to
use our services ten (10) calendar days after any revision to this Agreement or
change in service(s) is posted on our website, you agree to abide by and be
bound by any such revisions or changes. We are not bound by and you may not
rely on any representation concerning this Agreement or our services made by:
(i) any agent, representative or employee of any third party that you may use
to apply for our services; or (ii) information posted on our Web site of a
general informational nature. No employee, contractor, agent or representative
of Pool.com or any partner of Pool.com is authorized to alter or amend the
terms and conditions of this Agreement.
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The relationship of the parties established by this Agreement is that of
independent contractors. There is no relationship of exclusivity, partnership,
joint venture, employment or franchise between you or us under this Agreement.
Neither party has the authority to bind the other nor to incur any obligation
on the other's behalf, except as expressly provided herein. Nothing in this
Agreement will be construed to provide any rights, remedies or benefits to any
person or entity not a party to this Agreement.
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You agree that the terms of this Agreement are severable. If any term or
provision is declared invalid or unenforceable, that term or provision will be
construed consistent with applicable law as nearly as possible to reflect the
original intentions of the parties, and the remaining terms and provisions will
remain in full force and effect.
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You agree that this Agreement is the complete and exclusive agreement between
you and us regarding the Affiliate Program. This Agreement supersedes all prior
agreements, representations and understandings regarding the subject matter
hereof, whether established by custom, practice, policy or precedent.
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Your rights under this Agreement are not assignable. Any attempt by you to
assign your rights will render this Agreement voidable at our option. Any
attempt by your creditors to obtain an interest in your rights under this
Agreement, whether by attachment, garnishment or otherwise, will render this
Agreement voidable at our option.
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You agree that this Agreement and any disputes hereunder will be governed in
all respects by and construed in accordance with the laws of the Province of
Ontario, Canada, excluding its conflict of laws rules. You and we each submit
to exclusive subject matter jurisdiction, personal jurisdiction and venue of
the courts of that Province. You agree that any action, suit or application
will be brought and heard in Ottawa, Canada.
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The parties' obligations under this Agreement are subject to and neither party
will be liable for, failure to perform, damage, or malfunction of any
equipment, or any consequences thereof occasioned by or due to fire, flood,
water, the elements, labor disputes, power failures, explosions, governmental
actions, unavailability of transportation, acts or omission of third-parties,
or any other causes beyond the party's reasonable control.
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All notices pertaining to this Agreement will be given by email as follows: to
us at affiliates@pool.com; and, to you at address provided on our online signup
form (or as subsequently updated by you to us in the event of change).
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By applying to become an Affiliate of Pool, you acknowledge that you have read
and agree to be bound by all terms and conditions of this Agreement.
Last Modified February 6, 2004.