Affiliate Program Agreement

Last Modified: April 23, 2024

PLEASE READ THIS AFFILIATE PROGRAM AGREEMENT CAREFULLY.

This is a contract between you (the “Affiliate”) and us (“HomeServerHQ”). It describes how we will work together and other aspects of our business relationship.
The Affiliate Program Agreement applies to your participation in our Affiliate Program (the “Affiliate Program”).

We periodically update these terms. We might also choose to replace these terms in their entirety if need be. If we update or replace the terms we or the Affiliate Tool will let you know via electronic means, typically via email. If you don’t agree to the update or replacement, you can choose to terminate as we describe below.

Definitions

“Affiliate Program” means our affiliate program as described in this Agreement.

“Affiliate Link” means the unique tracking link/URL you place on your site or promote through other channels.

“Affiliate Tool” means the web-based online tool that we make available to you upon your acceptance into the Affiliate Program and for you to use in order to participate in the Affiliate Program.

“Affiliate Coupon Code” and “Coupon Code” means the specific alpha-numeric code that you request and approved to use upon your acceptance into the Affiliate Program. This code is the primary means for which our system will identify which Affiliate will be allocated the commission when a code is applied in a HomeServerHQ Subscription Product purchase. This code is also present and visible in the Affiliate Link. This code is unique (within our system) for each participating Affiliate.

“Agreement” means this Affiliate Program Agreement and all materials referred or linked to in here.

“Commission” means an amount described in the Affiliate Tool for each completed Customer Transaction that contain a corresponding Affiliate Coupon Code.

“Customer” and “Subscriber” means the authorized actual user of the HomeServerHQ Subscription Product who has purchased or signed up for the HomeServerHQ Subscription Product.

“HomeServerHQ Subscription Product”, “Subscription Product”, and “Subscription” means the one and only subscription/membership-based product available on our platform. It is the only product of this type, and the only product for which the Affiliate Program applies.

“We”, “us”, “our”, and “HomeServerHQ” means HomeServerHQ.

“You” and “Affiliate” means the party, other than HomeServerHQ, entering into this Agreement and participating in the Affiliate Program.

Non-Exclusivity

This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.

Eligibility

To be eligible for the Affiliate Program, you must be an active Subscriber in good standing on the HomeServerHQ web platform. This is the only way for you to apply for the Affiliate Program, and it is general policy for inactive and/or expired accounts to be removed from the platform. If your Subscription expires without renewal, it is assumed that you have also terminated the Affiliate Program, and any commission funds will be immediately disbursed and your account closed.

Application and Validity

A commission payment is only applicable to the HomeServerHQ Subscription Product, sold electronically via the HomeServerHQ web platform. The coupon code provided to you as per the Affiliate Program, must be applied to the cart BEFORE the completion of the transaction. The referral link provided to you via the Affiliate Tool ASSISTS the referral process by automatically applying your coupon code to the transaction via a session cookie. However, there is no guarantee that the coupon code will be be applied automatically. Furthermore, the customer has the option of changing or removing the coupon code if they choose. Thus, the entire validity of the referral process rests on what coupon code (if any) is applied to the cart at the time of the transaction.

Affiliate Acceptance

Once you request an Affiliate Coupon Code in the Affiliate Tool, we consider that to be your application to become an Affiliate. We will review your application and notify you whether you have been accepted to participate in the Affiliate Program, or not. If we do not notify you that you are accepted to participate in the Affiliate Program within thirty (30) days from your application, your application is considered to be rejected. If you are accepted to participate in the Affiliate Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below.

You will comply with the terms and conditions of this Agreement at all times, including any applicable Program Policies.

Commission and Payment

In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement; (ii) have a valid and up-to-date payment method in the Affiliate Tool. You are responsible for payment of all taxes and fees (including bank fees) applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.

Confidentiality

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents.

Term and Termination

  1. Term – This Agreement will apply for as long as you participate in the Affiliate Program, until terminated.
  2. Termination Without Cause – Both you and we may terminate this Agreement on fifteen (15) days written notice to the other party.
  3. Termination for Agreement Changes – If we update or replace the terms of this Agreement, you may terminate this Agreement on fifteen (15) days written notice to us.
  4. Termination for Cause. We may terminate this Agreement: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iii) immediately, if you breach the terms applicable to your subscription with us, or (iv) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
  5. Effects of Expiration/Termination – Expiration of this Agreement, and termination of this Agreement: (i) without cause by us,(ii) by you with cause, (iii) by you according to the ‘Termination for Agreement Changes’ section, shall not affect our obligation to pay you any outstanding Commission payments. Any subsequent transactions after the termination of this agreement are not eligible for commission payout. In the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Commission will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination. You are not eligible to receive a Commission payment after expiration or termination of this Agreement. Upon termination or expiration, an Affiliate Coupon Code is not considered valid. Upon termination or expiration, you will immediately discontinue all use of our trademark and references to this Affiliate Program from your website(s) and other collateral. For the avoidance of doubt, termination or expiration of this Agreement shall not cause a Customer’s subscription agreement to be terminated.

Affiliate Representations and Warranties

You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Affiliate Program; and (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements.

You further represent and warrant that: (i) you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program; (ii) you will accurately provide in the Affiliate Tool all websites and domains you own where you intend to use Affiliate Links to generate Affiliate Leads; (iii) you will not participate in cookie stuffing or pop-ups, false or misleading links are strictly prohibited; (iv) you will not attempt to mask the referring URL information; and (v) you will not use any mechanisms to deliver leads other than through an intended consumer. This includes sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (including but not limited to robots, lframes, or hidden frames), or offering incentives to encourage signups.

Indemnification

You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Affiliate Program, (b) your noncompliance with or breach of this Agreement, (c) your use of the Affiliate Tool. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

Disclaimers; Limitations of Liability

  1. Disclaimer of Warranties – WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE HOMESERVERHQ PRODUCTS, HOMESERVERHQ CONTENT, THE AFFILIATE PROGRAM OR THE AFFILIATE TOOL FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE AFFILIATE TOOL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE HOMESERVERHQ PRODUCTS AND AFFILIATE TOOL ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE HOMESERVERHQ PRODUCTS AND THE AFFILIATE TOOL INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
  2. No Indirect Damages – TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
  3. Limitation of Liability – IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE THREE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
  4. Affiliate Tool – WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE AFFILIATE TOOL THAT YOU USE. WE DO NOT PROMISE TO MAKE THE AFFILIATE TOOL AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN OUR DISCRETION.

General

  1. Amendment; No Waiver – We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be made available to you via the provided URL and/or by email. The updated Agreement will become effective and binding on the next business day after we have notified you. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version at https://accounts.homeserverhq.com/affiliate-program-agreement/. We encourage you to review this Agreement periodically. If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
  2. Applicable Law – This Agreement shall be governed by the laws of the State of Alabama, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in the Southern District of Alabama.
  3. Force Majeure – Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
  4. Actions Permitted – Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
  5. Relationship of the Parties – Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
  6. Entire Agreement – This Agreement is the entire agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the HomeServerHQ Products or dependent on any oral or written public comments made by us regarding future functionality or features of the HomeServerHQ Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
  7. Assignment – You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent.
  8. No Third Party Beneficiaries – Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
  9. Authority – Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.