GoodSync Affiliate Agreement
GOODSYNC AFFILIATE AGREEMENT
NOTICE: In accordance with the terms of the Affiliate Agreement
("Agreement"), please note that, effective immediately, all previous
versions of the Agreement are terminated, null, of no effect and are
replaced by this version dated January 18, 2007. Company reserves the
right to change the terms of this Agreement at any time without notice
to Affiliate and, by continuing to participate hereunder, Affiliate
agrees to be bound by such revised terms.
1. Definitions.
"End User License Agreement" shall mean an agreement between Company
or one of its suppliers and a User under which the User is required
to agree to certain terms and conditions as a prerequisite to using
a Product.
"Product(s)" means (a) either the RoboForm or the GoodSync, as
determined by the Company in its sole discretion, and (b) any other
product(s) or service(s) that Company authorizes Affiliate to
distribute pursuant to this Agreement.
"Proprietary Right" means any patent, copyright, trademark, trade
secret or other intellectual or proprietary right, under the laws of
the United States or any other country.
"RoboForm" means (a) the RoboForm client software; (b) related
explanatory written materials and files ("Documentation"); (c) any
software, code or web pages either delivered by Company to Affiliate
to enable users of Affiliate's Site(s) to download and install the
RoboForm or delivered directly by Company to Affiliate Users in
response to a request on Affiliate's Site(s); and (d) any upgrades,
modified versions, updates, additions, and copies of any of the
foregoing made available pursuant to this Agreement during the
Term. RoboForm is an online password manager and form filler.
"GoodSync" means (a) the GoodSync client software; (b) related
explanatory written materials and files ("Documentation"); (c) any
software, code or web pages either delivered by Company to Affiliate
to enable users of Affiliate's Site(s) to download and install the
GoodSync or delivered directly by Company to Affiliate Users in
response to a request on Affiliate's Site(s); and (d) any upgrades,
modified versions, updates, additions, and copies of any of the
foregoing made available pursuant to this Agreement during the Term.
GoodSync is a file synchronization utility.
"Term" means the period of time specified in Section 6 of this
Agreement.
"Tools" means any content made available by Company to Affiliate from
time to time for display or use on Affiliate Site(s), including,
without limitation, code, interface materials, paper or electronic
documentation, trademarks, service marks, and trade names.
"User" means a new unique end-user who, during the Term, installs
RoboForm or GoodSync (either alone or in connection with installation
of any other Product) on such user's computer through the install
process of Affiliate, who has not previously installed RoboForm or
GoodSync (either alone or in connection with installation of any other
Product), and whose installation is reported by Company's tracking
system as a valid installation.
"Affiliate" is an individual or entity that signs up by completing the
affiliate on-line registration form and is approved by the Company.
"Affiliate Site(s)" means the website(s) owned or controlled by
Affiliate as provided by Affiliate in the on-line registration form.
2. License and Distribution. During the term of this Agreement and
upon Affiliate agreeing to the terms and conditions of this Agreement
by completing the on-line registration form, Siber Systems Inc.
("Company"), hereby grants to Affiliate the limited,
non-exclusive license to use RoboForm, GoodSync, and the Tools as set
forth in the applicable "Additional Terms" attached hereto as Exhibit A.
Affiliate shall provide the services as described in the Additional
Terms. Company will provide Affiliate with code and/or web pages for
use on Affiliate Site(s) to enable Users to access, download and
install Products from Company. Affiliate shall not modify the Tools,
which are licensed to Affiliate as set forth in the Additional
Terms. Affiliate may not reference Company, its directors or its
parent or subsidiary companies without first receiving written consent
from Company. Affiliate may not issue any press release or other
public statements regarding this Agreement without Company's prior
written consent.
2.1 End User License Agreement(s). All Products are subject to one or
more End User License Agreements. Affiliate shall not take any action
to interfere with, and shall provide reasonable cooperation with
respect to implementing, the process pursuant to which Users are
presented with and given an opportunity to agree to the applicable End
User License Agreement(s). Affiliate will not make or authorize any
representation, warranty, term, condition or other provision relating
to a Product that has not been approved or otherwise authorized by
Company in writing.
3. Code of Conduct. Affiliate agrees to be bound by the Company code
of conduct set forth in Exhibit B (the "Code of Conduct"), which is
incorporated in its entirety in this Agreement by this
reference. Affiliate further acknowledges that such Code of Conduct
may be revised and updated from time to time and that by continuing to
participate hereunder after such changes are posted and made available
to the general public, Affiliate explicitly agrees to be bound by such
changes.
4. Compensation and Payment Terms. During the Term, Company will pay
Affiliate the fees set forth in the Additional Terms. Company will be
entitled to withhold, deduct and set off from any payments to be made
to Affiliate hereunder any sums owed by Affiliate to Company in
connection with this Agreement (including any breach hereof by
Affiliate) or otherwise. Affiliate is responsible for keeping its
payment information up to date. Payments will be sent with the payment
information located in the Affiliate Management System at the time the
pay period ends. No payment information change will be accepted
between the end of the pay period and the time the payment is
sent. Future payments will take account of any changes made during
that period. Affiliate is required to have a verified PayPal account
unless payment is to be made via check or wire transfer and the
Affiliate is otherwise in good standing (final determination of good
standing at Company's sole discretion). For the additional protection
of the Affiliate, or any other reason, Company may at any time request
additional and further proof of identification from Affiliate, and
payment may be withheld until identification can be verified (or
re-verified).
5. Ownership. Subject to any license granted herein, Company owns and
retains all rights, including Proprietary Rights, in and to the Tools
and Products. All rights not expressly licensed hereunder are
expressly reserved by Company. Affiliate shall use the Tools and
Products only as provided herein, and shall not alter the Tools or
Products in any way, nor shall it act or permit action that would in
any way impair the rights of the Company in the Tools or
Products. Affiliate acknowledges that its use of the Tools and
Products shall not create any right, title or interest in or to such
Tools and Products and all goodwill or reputation generated by
Affiliate's use shall inure to the benefit of Company. Company shall
have the right to monitor the quality of the Affiliate's use of the
Tools and Products. Affiliate agrees not to contest, in any court or
other jurisdiction, the validity of any of the Tools. During the term
of this Agreement, Affiliate shall not adopt, use, register, or apply
for registration of, whether as a corporate name, trademark, service
mark or other indication of origin, any of the Company trademarks,
service marks or trade names, or any word or mark confusingly similar
to them in any jurisdiction. Affiliate shall notify Company promptly
in writing of any known infringement of the Company Proprietary Rights
or other rights in the Tools or Products.
6. Term and Termination. The term of this Agreement shall commence on
the date Company receives Affiliate's on-line registration and shall
continue in force thereafter, unless earlier terminated as provided
herein. If Affiliate breaches this Agreement, or if Affiliate engages
in any action that, in Company's sole discretion, reflects poorly on
Company or its trademarks, service marks, trade name or reputation,
Company may terminate the Agreement immediately upon notice to
Affiliate. Either party may terminate this Agreement on thirty (30)
days written notice to the other party for any reason. Upon the
termination of this Agreement for any reason, all license rights
granted herein shall terminate immediately, and Affiliate shall
immediately cease use of the Tools and Products.
Company reserves the right to terminate any account inactive for more
than 30 calendar days.
7. Confidentiality. During the Term of this Agreement and thereafter,
Affiliate agrees that it will not disclose or use the "Confidential
Information" (defined below) of Company or will only use it as
contemplated by this Agreement. Confidential Information is
information that has or could have commercial value or other utility
in the business or prospective business of Company, or information
that Affiliate ought in good faith from the circumstances of its
disclosure consider to be confidential, including all Proprietary
Rights of Company and all other business, technical and financial
information that is obtained from Company pursuant to this
Agreement. Confidential information shall not include any information
that Affiliate can verify with substantial proof that: (i) is
generally available to or known to the public through no wrongful act
of Affiliate; (ii) was independently developed by Affiliate without
use of Confidential Information; or (iii) was disclosed to Affiliate
by a third party under no obligation of confidentiality to Company.
8. Warranties; Disclaimer.
8.1 Affiliate. Affiliate represents and warrants that (a) Affiliate is
18 years or older and has full power and authority to enter into this
Agreement; (b) the content on Affiliate's Site(s), and/or the
technology and/or content (including, without limitation all images,
photographs, closed captioning, data and music) used by Affiliate in
connection with this Agreement is and will continue during the term
hereof to be owned or legally licensed for use as contemplated by this
Agreement by Affiliate; (c) Affiliate Site(s) do not violate
applicable law or regulations, including without limitation 18 USC
2257 US Federal Law, and do not infringe or violate any copyright,
patent, trademark or other similar right, or otherwise violate or
breach any duty toward, or rights of, any person or entity, including
without limitation rights of publicity or property, or rights or
rights or duties under consumer protection, product liability, tort or
contract theories and (d) the content on Affiliate's Site(s) does not
violate the Canadian Criminal Code provisions in relation to child
pornography or obscenity.
8.2 Company. AFFILIATE ACKNOWLEDGES THAT THE TOOLS AND PRODUCTS ARE
PROVIDED "AS IS" AND "WITH ALL FAULTS, DEFECTS AND ERRORS." NEITHER
COMPANY NOR ANY OF ITS SUPPLIERS WILL HAVE ANY LIABILITY FOR ANY
ERROR, OMISSION OR DEFECT IN ANY PRODUCT, ANY INABILITY TO USE A TOOL
OR PRODUCT OR ANY LOSS OF DATA. COMPANY MAKES NO WARRANTY, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE, REGARDING THE TOOLS OR PRODUCTS,
THEIR PERFORMANCE OR SUITABILITY FOR INTENDED USE, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR NONINFRINGEMENT.
9. Exclusion of Damages; Limitation of Liability. NEITHER COMPANY NOR
ANY OF ITS SUPPLIERS WILL HAVE ANY, AND AFFILIATE EXPLICITLY RELEASES
COMPANY AND ALL OF ITS SUPPLIERS FROM, LIABILITY RELATED TO OR ARISING
UNDER THIS AGREEMENT (WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE
OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF DATA OR PROFITS, EVEN IF
COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO
EVENT WILL COMPANY'S ENTIRE LIABILITY ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY COMPANY TO
AFFILIATE FOR THE 6 MONTHS PRECEDING ANY CLAIM.
10. Miscellaneous.
10.1 Waiver and Severability. Waiver by either party of a breach or
right under this Agreement will not constitute a waiver of any other
breach or right. If any provision of this Agreement is held invalid or
unenforceable, the remaining provisions will continue in full force
and effect.
10.2 Assignment. Neither party shall assign this Agreement or any of
its rights under this Agreement without the prior written consent of
the other party, which will not be unreasonably withheld.
Notwithstanding anything in this agreement, Company may assign this
contract to a wholly owned subsidiary without notice or consent.
10.3 Legal Fees. In the event of a dispute, the substantially
prevailing party is entitled to recover reasonable legal fees and
court costs.
10.4 Disclosure. Company may disclose information related to Affiliate
as it believes is reasonably necessary to comply with law enforcement,
regulatory or other governmental authority, to prevent harm to
Affiliate or others, or in the event of a breach of this Agreement. In
the event of a breach of this Agreement, including the Code of
Conduct, the Company reserves the right to disclose Affiliate
information to law enforcement authorities and other regulatory
bodies.
10.5 Notices. Notices, demands and other communications shall be in
writing and sent to, as applicable, the address of Affiliate provided
by Affiliate to Company during the on-line registration process and
the address of Company as set forth on Company's website, and shall be
deemed to have been properly given:
(a) If delivered by mail, overnight courier or express, when received
by addressee; or
(b) If sent by confirmed fax, one business day following receipt by
addressee; or
(c) If sent by email from Company to Affiliate, using the email
address provided by Affiliate, on the same day as the email is sent.
10.6 Export. Affiliate shall not, directly or indirectly, export or
re-export any Product from the United States without compliance with
all applicable laws and regulations of the United States Office of
Export Licensing or its successor.
10.7 Indemnification. Affiliate shall defend, indemnify and hold
harmless Company, its affiliates and their respective officers,
directors, employees, agents, successors, licensees, attorneys,
suppliers and assigns, and each of them, from and against any and all
losses, liabilities, damages, penalties and claims and all related
costs and expenses (including reasonable attorneys' fees) related to
claims by third parties arising from (a) Affiliate's breach of Section
3 and/or the Code of Conduct; (b) Affiliate's negligence or willful
misconduct; or (c) Affiliate's own technology, business and Site(s).
10.8 Governing Law. This Agreement shall be construed, controlled and
governed by the laws of the Commonwealth of Virginia, without regard
to conflicts of law principles or provisions.
10.9 Relationship between Parties. There is no relationship of agency,
partnership, joint venture or employment between the parties. Neither
party has the authority to bind the other nor to incur any obligation
on the other's behalf except as described in this Agreement.
10.10 Entire Agreement; Amendment. This Agreement is the complete
agreement between the parties, and supersedes all previous agreements,
proposals and communications, written and oral, with respect to this
subject matter. No amendment, modification or waiver of any of the
provisions of this Agreement will be valid unless set forth in a
writing signed by the parties to be bound thereby. The foregoing
notwithstanding, if a revised, updated version of this Agreement is
posted online by Company, and Affiliate continues to participate in
Company's Affiliate program, then Affiliate is thereby agreeing to be
bound by such revised terms.
EXHIBIT A
ADDITIONAL TERMS - ROBOFORM/GOODSYNC DISTRIBUTION
1. Licensed Use and Distribution. Affiliate shall provide the
possibility to install the Products from Affiliate Site(s) to
end-users of Affiliate's Site(s) only and not to subdistributors or
any other third parties.
2. Payout Rates. Payout rates depend on the package the Affiliate
chooses. Please refer to the Description of Programs on Company's
website for more details. Such Description of programs is hereby
incorporated into the Agreement by this reference. Company will pay
Affiliate a commission based on User installations performed through
the Affiliate ID for the 'per install' program and a percentage of
User purchase revenues for the 'revenue share' program. Affiliates on
the 'per install' must maintain a 1/125 (install/purchase) ratio as
per Company's internal statistics. Any Affiliate on the 'per install'
program who does not generate enough revenue to be profitable for the
company will be switched retroactively to the 'revenue share' program.
Company pays only on valid installations. Company further reserves
the right not to pay for installations coming from certain countries
if they are not profitable to Company.
Company will issue payment via PayPal once Affiliate's account balance
has reached fifty United States dollars (US $50.00). The minimum
amount for sending a paper check is fifty United States dollars
(US $50.00).
CODE OF CONDUCT
Siber Systems, Inc. Affiliate Code of Conduct
Updated January 18, 2007.
Unless otherwise defined herein, capitalized terms used in this Code
of Conduct shall have the same meaning as ascribed to them in the
Affiliate Agreement.
Definition of 'bundled.' For purposes of this Code of Conduct, a
"bundled" product or application includes all other products or
applications that may be downloaded to, and installed on, the User's
computer at the same time as the Product, or at a later time by an
application or product initially delivered at the same time as or
otherwise connected to the Product, excluding new version updates and
upgrades to the initially delivered application or product. See also
"Notice Required" section, below.
Affiliate Site. Affiliate Site must be (i) content-based, i.e., not
simply a list of links or advertisements, nor a site which is centered
around making money off of Company advertisers, as may be determined
by Company in its sole and unfettered discretion; (ii) written solely
in English (exceptions require Company's specific, prior written
approval); (iii) a top-level domain, as that term is defined by the
Internet Corporation for Assigned Names and Numbers; and (iv) fully
functional at all levels, i.e., no "under construction" sites or
sections. Affiliate Site must not contain incentives to Users to click
on ads such as cash awards, points, prizes, contest entries,
etc. Affiliate Site shall not primarily target Users younger than 18
years of age.
Affiliate Account. Only one Account is allowed per company or
organization unless otherwise agreed to in writing by
Company. Affiliate may use this Account for multiple Affiliate Sites,
provided that Affiliate register each and every Affiliate Site in
their Account where Company software will be distributed.
Notice Required. Affiliate agrees to accurately provide easy-to-read
and easy-to-understand notice and information to all Users of Products
and all other applications that are bundled with Products (if any, and
which requires Company's specific written consent), before initiating
a download to and installing the Products or applications on a User's
computer and to give such User an easy and appropriate method to agree
or not to agree to such installation. Affiliate shall under no
circumstances attempt to launch a Product executable without first
displaying the above-described messaging and receiving explicit User
consent for the installation. Company reserves the right to approve
final wording of this messaging and to require periodic changes as
necessitated by changes to Products or for other business
reasons. Affiliate shall not alter code to automatically initiate the
license prompt, nor shall Affiliate drive traffic to web pages where
content is set to autoplay. Content may only be set to autoplay on
pages displayed following explicit User action (such as a mouse
click).
Ability to Easily Uninstall Required; TRUSTe Compliance. Affiliate
will ensure that the User may easily remove and/or uninstall not just
the Products, but each and every other application bundled with
Products by using the Microsoft Windows "Add or Remove Programs"
menu. Affiliate will also ensure that all applications bundled with
Products adhere to terms no less restrictive than those contained in
this Code of Conduct. Other products or applications that act as
program "Trojans" (installing additional applications without full
product descriptions and EULA acceptance) shall not be bundled with
any Product. In addition, Affiliate will ensure that any applications
it bundles with Products adhere to the requirements of the TRUSTe
Trusted Download Certification Program guidelines (for details on the
Program, visit http://www.truste.org/pdf/program_requirements.pdf),
including, without limitation, that such applications do not contain
code that reinstalls the Products automatically if removed by means
other than the Add or Remove Programs feature. Such reinstall may only
occur after the User has affirmatively opted-in to the reinstall.
Audit Rights. At any time, Company will be allowed to test all other
products with which a Product (or, without limitation, any portion or
derivation thereof) is bundled to ensure Affiliate's compliance with
the guidelines and terms herein. Neither the conducting of such
testing, nor the failure to do so, will act as any certification or
other affirmation that Affiliate is in compliance with the terms and
conditions herein nor relieve Affiliate from any liability
hereunder. Upon request, Affiliate is required to provide live links
to all locations where Company's products are available. Upon request,
Affiliate is also required to provide additional proof of
identification in a form acceptable to Company in its sole discretion.
Keyword Marketing. Affiliates are required to generate installs from
a website or websites that they directly own or manage. Company does
not allow Affiliates to generate traffic by inserting paid ad
placements in pay-per-click search engines including but not limited
to Google AdWords, Yahoo! Search Marketing, and Microsoft AdCenter,
and directly sending traffic to Siber Systems websites. Affiliates
are also prohibited from using registered Siber Systems domain names
or close variants in the display URLs for paid ad placements
pay-per-click search engines including but not limited to Google
AdWords, Yahoo! Search Marketing, and Microsoft AdCenter.
No Spam. Company does not accept any form of spam and detects/discards
all traffic from unsolicited email, newsgroups, instant messages, chat
forums, unauthorized adjustment of default home page or search
features within standard browser settings and all other methods other
than that generated from an active human. Spamming by any of these
methods will cause the responsible Affiliate Account to be terminated.
No Objectionable, Inappropriate, or Unlawful URLs. The action of
sending any hits from any URLs or any materials protected by DRM
technology that contain and/or promote the following content is not
permitted: warez, cracks, serials, keygens, ROMs, EMUs, newsgroup
postings, spam emails, illegal MP3s or any other site that contains
content or promotes activities that are illegal in the United States
of America.
No Fraudulent Installs. Affiliate shall not generate or facilitate
fraudulent or artificially created installs, including, without
limitation, installs generated through (i) forced, automated,
mechanical or electronic means (including hitbots, multiple clicking
scripts, hidden links, incentivizing surfers or any other similar
activity), (ii) altering the User's security settings, or (iii)
unsolicited emails, electronic data mining, harvesting or other
similar means of generating artificial activity (e.g., transfers
generated by a bot, macro program, internet agent or other similar
device). Affiliate may not send traffic to Company or to Affiliate
Site by any type of automatic installs, browser exploits, viruses,
bots, rootkits, or by any other means, even if otherwise
legitimate. Affiliate shall not use false advertising or other
deceptive or inappropriate means to generate installs.
Compliance. Affiliate will perform its obligations pursuant to this
Code of Conduct in accordance with all applicable laws, rules and
regulations. Without limiting the generality of the foregoing,
Affiliate will: (a) not engage in any unfair or deceptive trade
practice involving the promotion or distribution of the Products; (b)
not include on any Affiliate Site any content or material that in
Company's sole discretion (i) is defamatory, libelous, slanderous or
offensive, or that abuses or threatens physical harm to others, (ii)
is offensive, insensitive or disparaging regarding racial, ethnic, or
political matters or is otherwise objectionable, or (iii) infringes
the rights of any party or any law, regulation or legal authority
including, without limitation, rights of publicity or privacy; (c) not
make any false, misleading or disparaging representations or
statements with regard to the Products or Company or Company's
employees; (d) post and comply with a privacy policy clearly setting
forth its practices regarding the collection, use and dissemination of
User personally identifiable information; and (e) not infringe,
misappropriate or violate any Proprietary Rights of Company or any
third party.
Affiliate Responsibility. Affiliate is solely responsible for any
Affiliate Site(s) and all content that appears on and any collection
of information by Affiliate on Affiliate Site(s). Affiliate may use or
display Company materials only in the size, place and manner Company
may indicate within Affiliate Site(s) and only in a manner that
complies in all respects with Company's guidelines, as the same may be
modified from time to time by Company in its sole discretion. In
addition, Affiliate will ensure that appropriate messaging and EULA
acceptance precedes every installation of a Product and every other
product that is bundled with a Product.
Violations of Code of Conduct - Disgorgement of Profits and Liquidated
Damages. If Company determines that Affiliate is in violation of any
of the terms and conditions of this Code of Conduct, in Company's sole
discretion, then Company shall notify Affiliate and Affiliate agrees
that it will immediately and permanently end the activity that
violates the Code of Conduct. Company will withhold payment for the
improper installations and Affiliate shall be subject to liquidated
damages as set forth in the immediately following paragraph. If
Company has already paid for improper installations, Affiliate agrees
to refund all such amounts to Company within three (3) business days
after the Company sends notice to Affiliate of the improper
installations and Affiliate shall still remain subject to the
liquidated damages set forth in the immediately following
paragraph. The foregoing shall in no way limit the legal or equitable
rights or remedies available to Company in connection with a violation
of the above requirements, or otherwise.
The parties agree that strict compliance with the terms and conditions
of this Code of Conduct is at the essence of the relationship between
Affiliate and Company. The parties further agree that damages from
breach of this Code of Conduct may be difficult to
calculate. Accordingly, the parties agree, in addition to any
indemnification or refund obligations herein (and without limitation
to any other legal or equitable rights or remedies) to liquidated
damages calculated as follows: two times (2x) the amount equal to what
Company did pay or would have paid Affiliate if the installs had been
proper.
Indemnification for Violations of the Code of Conduct. If any claim is
made, or any action or proceeding is instituted, against Company that
alleges or is based upon or arises out of Affiliate's breach of any
representation, warranty or obligation arising under this Code of
Conduct, Affiliate shall indemnify and hold Company harmless from all
damages, awards, costs and expenses (including reasonable attorneys'
fees) associated therewith. Such indemnity is in addition to any other
indemnity (either in the Affiliate Agreement or otherwise) made by
Affiliate.
Changes. Company reserves the right to change the terms of this Code
of Conduct at any time without notice to Affiliate and, by continuing
to participate as a Company partner, Affiliate agrees to be bound by
such revised terms. Company will post those changes on the Code of
Conduct page of the applicable website. Affiliate's continued
participation as a Company partner following the posting of such
changes to the Code of Conduct will constitute Affiliate's acceptance
of any such changes.