ZIXMAIL™
AFFILIATE PROGRAM AGREEMENT
This ZixMail™
Affiliate Program Agreement (“Agreement”) contains the complete
terms and conditions that apply to your participation in the ZixMail™
Affiliate Program (the “Program”) of ZixMail.com, Inc., a Delaware
corporation (“we,” “us,” “ours”).
1. Enrollment
in the Program. Participation in the Program gives the affiliate
(“you”) the opportunity to earn commissions from subscriptions to
our ZixMail™ secure document delivery, private email,
and message tracking service (the “ZixMail Service”). To begin
the enrollment process, you must submit an application
form. We will evaluate your application and notify you
via email whether or not you have been accepted to participate in
the Program. We may reject your application if we determine in
our sole discretion that your web site (“Site”) is unsuitable for
participation in the Program. Unsuitable web sites include, but
are not limited to, those that:
(a) contain sexually explicit or obscene materials,
or other offensive materials;
(b) advocate discrimination based on race, sex,
religion, nationality, disability, sexual orientation, age, or
other impermissible criteria;
(c) promote or engage in illegal activities;
(d) violate intellectual property rights of third
parties;
(e) contain or promote deceptive information;
or
(f)
promote gambling.
By applying to participate in the Program, you are
representing to us that your Site does not do any of the items noted
in clauses (a) through (f) and, if you are accepted to participate
in the Program, you agree that your Site will not engage in any
of the items described above during the period of your participation.
2. Links.
If you are accepted to participate in the Program, we will make
available to you for use on your Site the following items: banners,
buttons, icons, text links, and other items ("Links"),
subject to the terms and conditions hereof. The Links will link
to one of our URLs, where visitors may download the ZixMail Service
software. You may post as many Links on your Site as you like.
The position, prominence, and nature of the Links on your Site shall
comply with any requirements specified by us, but otherwise will
be at your discretion.
3.
Commissions.
“Commission
Period” means a period of five (5) years from the date the customer
first registers his or her email address with the ZixMail Service.
“Qualifying
Link” means a direct link from your Site to our web site established
in accordance with our technical requirements.
“Qualifying
ZixMail Registered Email Address” means an email address registered
for use with the ZixMail Service during the term of this Agreement
by a bona-fide customer whose most recent download of the ZixMail
Service software prior to registering with the ZixMail Service:
·
was via a Qualifying Link; and
·
was to the same computer from which the email address
is being registered.
3.1
For each Qualifying ZixMail Registered Email Address that
is initially registered with the ZixMail Service, we will pay you,
or cause you to be paid, an initial commission (the “Initial Commission”)
as follows:
·
$10 for the 1st
·
$1 for the 2nd - 1,001st
·
$2 for the 1,002nd – 2001st
·
$3 for each over 2,001
Also, subject to Subsection
4.2, for so long as you maintain a Qualifying Link on your Site,
for each Qualifying ZixMail Registered Email Address that continues
subscribing to the ZixMail Service during the Commission Period,
we will pay you a renewal commission (the “Renewal Commission”)
of $1 per year (for each year after the initial year during the
Commission Period).
We will pay you Commissions
(as defined below) with respect to no more than five (5) Qualifying
ZixMail Registered Email Addresses per ZixMail subscriber computer.
There will be no Commissions or other fees or consideration
payable to you other than as specifically stated herein. The Initial
Commission and the Renewal Commission are collectively referred
to as the “Commissions.”
3.2 We
use cookies to track when and from what web site a customer links
to our web site to download the ZixMail Service software. If a
customer does not have cookies enabled through their browser or
periodically deletes cookies from their computer, we are unable
to track the customer’s activity. Consequently, if this customer
registers with the ZixMail Service, we will not classify him or
her as being a Qualifying ZixMail Registered Email Address, and
you will not earn Commissions for the registration.
3.3 We
will pay you, or cause you to be paid, within thirty (30) days after
the end of each calendar month, the Commissions owed you in accordance
with the above-mentioned commission structure, so long as the aggregate
Commissions earned by you and not yet paid exceeds $50. Commission
checks will be for the applicable amount of Commissions (less any
taxes required to be withheld pursuant to applicable law). For
any calendar month in which your Commissions do not exceed Fifty
Dollars ($50), we shall have the option to pay the same or to withhold
such payment and add such Commissions to the next calendar month,
if any, for which you are entitled to receive a commission check.
4. Termination;
Effect on Commissions; Modification.
4.1 This
Agreement shall be effective on the date we accept your application
form and shall continue until terminated by either party. Either
you or we may terminate this Agreement, with or without cause, by
giving written notice to the other party in the manner specified
in Section 12.
4.2 You
will not have the right to receive any further Commissions following
the termination of this Agreement, regardless of whether or not
you or we terminate or whether or not the termination was with or
without “cause.”
4.3 We
reserve the right, in our discretion, to change the terms of this
Agreement from time-to-time. We will notify you of any such changes
in the manner specified in Section 12. Changes may include, without
limitation, changes in the commission structure or payment procedures.
If you do not agree with the changed terms and conditions, your
only recourse is to terminate this Agreement. Your continued participation
in the Program after you have been notified of the changes to the
terms of this Agreement shall constitute your agreement to the changed
terms and conditions.
5. Licenses;
Marks. We grant you a non-exclusive, non-transferable, royalty-free,
revocable license (a) to access our web site through the Links and
(b) to use our logos, trade names, trademarks, service marks, and
similar identifying material (collectively, “Our Marks”) included
in the Links for the sole purpose of promoting the ZixMail Service
through your Site as contemplated by this Agreement. No right,
property, license, or interest in any of Our Marks is intended to
be given by us to you or acquired by you under this Agreement, except
as stated in the preceding sentence. You may not alter, modify,
or change Our Marks in any manner. You may not use Our Marks in
any manner that is disparaging or otherwise portrays us in a negative
light. Upon termination of this Agreement, you agree to return
to us all property and non-public information you received from
us and agree to promptly cease using Our Marks. You agree not to
challenge the validity of, adopt, or register or attempt to register
with any domestic or foreign government, quasi-governmental authority,
or domain name registrar, the marks “ZixMail,” “ZixCharge,” “ZixIt,”
“Zix,” “Secure Delivery” or any confusingly similar or derogatory
derivation thereof as a trademark, service mark, Internet domain
name, trade name, or similar item. You may not use or infringe
upon the logos, trade names, trademarks, service marks and similar
identifying material or other intellectual property of the third
party that administers the Program, without their express prior
written consent.
6. Publicity;
Promotional Activities. You may not make any public announcements
about your participation in the Program or about the third party
that administers the Program or engage in any promotional activities
(other than inserting Links on your Site) pertaining to your participation
in the Program, without our prior written consent. You agree not
to publish or otherwise make any representations, warranties, or
other statements concerning us, our web sites, or the ZixMail Service
or any of our other products or services, except as expressly authorized
by us in writing. We may, in our discretion, announce your use
of the Links on your Site, and otherwise advertise, market, promote,
and publicize this Agreement in any manner, including listing your
name and company logo(s) on our web site.
7. Your
Responsibilities. You agree to indemnify, defend, and hold
harmless us and our affiliates, directors, officers, employees,
and agents, from and against any and all liability, claims, losses,
damages, injuries, or expenses (including reasonable attorneys'
fees) relating to (a) the contents, development, operation, and
maintenance of your Site, (b) your breach of this Agreement or any
of the terms hereunder, (c) any misrepresentation or breach of a
covenant or agreement made by you in your application form, or (d)
any claim that our use of your Marks infringes on any trademark,
trade name, service mark, copyright, license, intellectual property,
or other proprietary right of any third party. You are responsible
for the contents, development, operation, and maintenance of your
Site. You are responsible for ensuring that your Site complies
with all applicable copyright and other laws. We will not be responsible
if your use of another party's copyrighted or other proprietary
material is in violation of the law. You agree to maintain in confidence
any information we provide you pertaining to us or the third party
that administers the Program that is designated as “confidential,”
“proprietary,” or the like or is disclosed in
circumstances of confidence, or would be understood by a receiving
party, exercising reasonable business judgment, to be confidential.
8. Anti-Fraud
Measures and Forfeitures. We will, from time-to-time, utilize
techniques designed to identify fraudulent activities. You understand
and agree to cooperate with such efforts as we, in our sole discretion,
deem necessary to identify such attempts at fraud. You further agree
that if, for any reason, you or others acting on your behalf are
suspected of fraud or other breach of this Agreement, we may, in
our sole discretion, suspend or terminate your participation in
the Program, retain any unpaid monies, and seek prosecution to the
fullest extent of the law. Any retained monies shall be in addition
to, not in lieu of, any actual or punitive damages, or right to
seek other remedies under law, including, but not limited to, disgorgement
of any prior monies paid. You also understand and agree that we
may utilize and disclose any personally identifiable information
we maintain about you for purposes of seeking remedies under law
for any breach of this Agreement.
9. Solicitation
of ZixMail Subscribers. You will not send unsolicited, commercial
email (i.e., "spam") to ZixMail subscribers if
your only business relationship with them is that they clicked through
your Site to our web site through the Links.
10. Disclaimer
of Liability. OUR ONLY OBLIGATION TO YOU HEREUNDER IS TO PAY
YOU THE COMMISSIONS. IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY
THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE,
EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING DAMAGES
FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS
OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY. THIS LIMITATION
OF LIABILITY APPLIES WHETHER ANY OF SUCH EVENTS WAS ADVERTENT OR
INADVERTENT, INTENTIONAL OR UNINTENTIONAL, JUSTIFIED OR NOT, NEGLIGENT
OR GROSSLY NEGLIGENT, OR BROUGHT UNDER A CAUSE OF ACTION IN CONTRACT,
TORT, STRICT LIABILITY, OR OTHERWISE. SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, SPECIAL,
OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY
TO YOU. IN ADDITION TO THE FOREGOING, OUR AGGREGATE LIABILITY TO
YOU ARISING WITH RESPECT TO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY UNDER ANY THEORY OF RECOVERY SHALL NOT EXCEED
THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
MOREOVER, AS BETWEEN YOU AND US, OUR WEB SITE, THE
LINKS, THE ZIXMAIL SERVICE SOFTWARE, AND THE ZIXMAIL SERVICE ARE
PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING
WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT,
OR WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
11. Arbitration.
You agree to the resolution by binding arbitration of all claims,
demands, causes of action, disputes, controversies, or other matters
in question (“claims”) brought by you arising under this Agreement
and the transactions contemplated hereby. We reserve the right
to bring court actions in any court of competent jurisdiction to
enforce our rights under this Agreement. The claims shall be submitted
to arbitration and finally settled under the applicable rules of
the American Arbitration Association (“AAA”) in effect at the time
the written notice of the claim is received by us. The arbitration
will be held in Dallas County, Texas. The award and findings of
such arbitrator shall be conclusive and binding upon the parties,
and judgment upon such award may be entered in any court of competent
jurisdiction. Each party shall pay all costs and expenses of its
advisors. The costs and expenses of the arbitration proceedings
will be paid by the non-prevailing party or as the arbitrator otherwise
determines. Discovery will be permitted to the extent directed
by the arbitrator. You agree to pay our costs and expenses (including
reasonable attorney’s fees) if we are required to enforce this agreement
to arbitrate against you.
12. Contact
Info. You may contact us under this Agreement at:
Jim McGrath
2711 North Haskell Avenue, Suite 2300
LB 36
Dallas, Texas 75204-2960
Email address: affiliate@zixit.com
We may contact you under this
Agreement at the address, including the email address, noted in
your application form.
Official communications under
this Agreement must be in writing and delivered by (a) courier or
certified mail to the addresses referenced above or (b) via regular
email or via the ZixMail Service from and to the applicable email
addresses referenced above. A party may change the contact information
for sending and receiving notices by giving notice in the manner
as stated.
13. General.
13.1 Governing
Law; Forum. This Agreement shall be construed, interpreted,
and governed by the laws of the State of Texas (without regard to
the conflicts of law provisions thereof) and applicable United States
federal law. You hereby consent to the personal jurisdiction of
the federal and state courts sitting in the county of Dallas, State
of Texas, USA. This Agreement will not be governed by the United
Nations Convention on Contracts for the International Sale of Goods,
the application of which is expressly excluded.
13.2 Entire
Agreement; Waiver. This Agreement and your application form
shall constitute the entire agreement between the parties hereto
pertaining to the subject matter hereof and supersedes any and all
prior written and prior or contemporaneous oral agreements and understandings
pertaining hereto. Any waiver or modification of this Agreement
shall only be effective as provided in this Agreement or after an
affirmation intended to have the effect of a signature by the party
sought to be bound by the waiver or modification. In the event
of any inconsistency between the terms of this Agreement and the
description of the Program that appears on our web site, the terms
of this Agreement shall govern. Our failure to exercise any of
our rights or remedies hereunder or enforce any provision hereof
shall not act as a waiver of any such right, remedy, or provision.
13.3 Severability.
If any part of this Agreement is found invalid or unenforceable
by a court of competent jurisdiction, that portion shall be construed
consistent with applicable law as nearly as possible to reflect
the original intentions of the parties, and the remainder of this
Agreement shall remain in full force and effect.
13.4 Assignment;
Survival. You may not assign this Agreement or delegate your
rights or obligations under this Agreement, in whole or in part,
and any such attempted assignment or delegation will be void. We
reserve the right to assign this Agreement or delegate our rights
or obligations under this Agreement. All causes of action and any
provisions of this Agreement which by their nature are intended
to survive termination, shall survive termination of this Agreement.
13.5 Independent
Parties. Nothing contained herein shall imply any partnership,
joint venture or agency relationship between the parties, and neither
party shall have the power to obligate or bind the other in any
manner whatsoever.
13.6 Binding
Effect; Benefit. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and, subject to Subsection
13.4, their respective successors and assigns. Nothing in this
Agreement, expressed or implied, is intended to confer on any person
or entity other than the parties hereto or their respective successors
and assigns, any rights, remedies, obligations, or liabilities under
or by reason of this Agreement.
13.7 Injunctive
Relief; Remedies. You acknowledge a violation of this Agreement could
cause irreparable harm to us for which monetary damages may be difficult
to ascertain or may be an inadequate remedy. You, therefore, agree
that we will have the right, in addition to our other rights and
remedies at law or in equity, to seek preliminary injunctions unilaterally
without notice and final injunctions with notice, enjoining and
restraining any violation, or threatened or intended violation,
of this Agreement. Except where otherwise specified, the rights
and remedies granted to us under this Agreement are cumulative and
in addition to, and not in lieu of, any other rights or remedies
that we may possess at law or in equity.
13.8 Excuse
of Performance. Neither party will be liable for, or be considered
in breach of or default under this Agreement on account of, any
delay or failure to perform as required by this Agreement as a result
of any causes or conditions which are beyond such party's reasonable
control and which such party is unable to overcome by the exercise
of reasonable diligence.
ACCEPTANCE
Please indicate your acceptance or non-acceptance
of the terms and conditions of this Agreement by clicking on the
appropriate button:
|
