Affiliate Referral Program Agreement
Updated September 24, 2010
This is an Agreement which contains the complete terms and conditions between GatherWorks, Inc. and you, regarding your application to participate in our GatherPlace Affiliate Referral Program, and the creation of links to the GatherPlace.net website. Execution of this Agreement as set forth below constitutes your acceptance of the terms and conditions of this Agreement, and will be a legally binding agreement between you and GatherWorks, Inc.
1. JOINING THE PROGRAM
To enroll in GatherPlace Affiliate Referral Program, you will have to submit a complete Application Form via our website http://www.gatherplace.net/ap
. We will evaluate your application and notify you of your acceptance or rejection. We may reject your application if we determine, at our sole discretion, that your website is not suitable for the program for any reason.
This is a legal agreement between you and GatherWorks, Inc. By clicking on the "Submit" button at the end of the Affiliate Referral Program Application form, you agree that you are affirmatively stating that you have carefully read and understand the terms set forth in this Agreement and you agree to be bound by the terms of this Agreement.
2. AFFILIATE TYPES
All Affiliates must provide at least one reference link to the GatherPlace web service. Affiliates fall into three categories as follows:
- A. Website Affiliate – an Affiliate who maintains a link on their own Web site to GatherPlace. You may use graphics and text as well as Web templates provided to you by GatherWorks, or you may create your own as long as they are deemed appropriate according to GatherWorks’ conditions. Web site Affiliates could also refer a sub-domain to GatherPlace.net (for example, http://live.psgsos.com can be pointed to www.gatherplace.net for simplified lead tracking).
- B. Domain Name Affiliate (hereafter DNA) – an Affiliate who purchases a Domain Name with "GatherPlace" in the name for use as a mirror site for GatherPlace.net (e.g. "www.GatherPlace.nz"). DNA may not use the domain for any other use, but to redirect it to www.GatherPlace.net. Should you choose to cease participation in the GatherWorks Affiliate Program, you agree to transfer all rights and ownership (at no cost to GatherWorks) of the Domain Name to GatherWorks within thirty (30) days of notification of termination.
- C. Media Affiliate – an Affiliate who either 1) maintains a blog and/or social media page (Facebook, Twitter, etc.; 2) conducts email marketing; and/or 3) manages SEO (search engine optimization) through which GatherPlace will be promoted.
3. QUALIFICATION OF REFERRED CUSTOMERS
A prospective Customer referred by the Affiliate will be a Qualified Customer if the following conditions are satisfied:
- A. The prospective Customer (their company or their parent company) is not an existing GatherPlace account (unless they belong to the same affiliate)
- B. GatherWorks has not had meaningful marketing activity with the prospective Customer within the last six (6) months, as determined by GatherWorks.
"Qualifying Purchase" requires that all of the following conditions be satisfied:
- A. The referral code was used when the user signed up for a trial by clicking on the affiliate link or by entering it as a Referral Code. GatherPlace will try to track the Affiliate Code in a cookie during sessions.
- B. The Customer buys a subscription (as defined by the GatherPlace Terms and Conditions Agreement and subject to all terms and conditions of said Agreement) through the trial account that was associated with the Affiliate Code
- C. The services purchased or licensed by the Customer were a direct result of either a referred mirror site or tracked through an Affiliate referral code given to you by GatherWorks.
4. STANDARDS OF PARTICIPATION / CODE OF CONDUCT
Affiliate is expected to abide by the following practices when promoting the sale of GatherPlace.net services. (i) No spamming or unsolicited e-mails; (ii) no false or misleading advertising; (iii) no advertising under competitor's trademarks; (iv) no advertising on websites affiliated with adult content or illegal subject matter.
Additionally, by joining the Affiliate Program, you will no longer be eligible to participate in other GatherWorks promotions involving sales or referred customers.
5. PROHIBITED USES
You shall not authorize or encourage any third party to: (i) generate fraudulent sales; or (ii) act in any way that violates any Terms and Conditions posted on the GatherWorks website, as may be revised from time to time. Violation of any of the foregoing may result in immediate termination of this Agreement, and may subject you to state and federal penalties and other legal consequences. DNAs shall not transfer ownership of a domain name they enroll in the Affiliate Program to any third party without the written consent of GatherWorks.
6. MAINTAINING YOUR SITE
You must immediately notify GatherWorks of all web pages that contain a reference link to GatherPlace. You must also notify GatherWorks of any additions, deletions, or changes to pages containing GatherPlace reference links. GatherWorks, Inc. reserves the right to monitor your website at any time to determine if you are following the terms and conditions of our GatherPlace Affiliate Referral Agreement and to notify you of any changes to your website that we feel should be made.
You agree that GatherWorks may use your name and logo in presentations, marketing materials, customer lists, financial reports and website listings of customers.
8. ORDER PROCESSING
All aspects of order processing and fulfillment, including customer and referral tracking, customer service, cancellations, and payment processing will be GatherWorks' responsibility. We will track the amount of sales generated by you and will make this information available to you through the GatherPlace website. To permit accurate tracking, reporting, and commission accrual, you must ensure that the links and referral code between your website and GatherPlace.net are properly formatted. GatherWorks will provide you the necessary referral code for tracking purposes. You must review your tracking reports using the link provided to you by GatherWorks at http://www.gatherplace.net/ap and take immediate actions to correct your referral links if the reports show no activity.
9. EARNING COMMISSIONS
- A. GatherPlace Subscriptions. You will be paid 15% commission for every purchase of the GatherPlace service by Qualified Referred Customer as outlined in Section 3 of this Agreement. Commissions are based on the monies received from customers minus transactions fees from credit card companies calculated at an average percentage.
- B. You will also receive 5% commission on net commissions earned by Direct Affiliates that you signed up as part of this Affiliate Program only.
- C. For net sales made by Affiliates of Direct Affiliates, you will receive 3% commission as noted in 9(c).
- D. For net sales made by Affiliates of Affiliates of Direct Affiliates, you will receive 1% commission as noted in 9(c).
- E. We will pay you commissions on a monthly basis. By the 15th of each month, we will send you a check for commissions earned from the previous month on referred sales of GatherPlace. However, if the commissions payable to you are less than $25, we will hold payment until the total amount due is at least $25 or until this Agreement is terminated. AFFILIATE MUST COMPLETE FEDERAL W-9 FORM TO RECEIVE PAYMENT (form available at http://www.irs.gov/formspubs/index.html), otherwise Affiliate commission will be capped at $599 per year.
- F. Coupons. You may elect to provide your customers with a discount of up to 15% off retail price. However, the percentage you choose to provide is deducted from your 15% commission rate. For example, if you provide a 10% off coupon, your commission rate for any sales resulting from that coupon is 5%.
10. TERM AND TERMINATION
The term of this Affiliate Agreement will commence on GatherWorks' acceptance of the Affiliate's Affiliate Program Application and will end within ten (10) days of proper termination by either party. Either GatherWorks or Affiliate may terminate this Agreement at any time, with cause and without liability, by giving the other party written notice of termination. Notices transmitted via e-mail shall be effective notice hereunder. Upon such notice, you agree to promptly remove from your Web site any or all GatherPlace.net and GatherWorks, Inc. links, logos, and graphics. If this Agreement is terminated because you have violated the terms of this Agreement you are not eligible to receive any commission payments, even for commissions earned prior to the date of termination. If this Agreement is terminated for any other reason, you are only eligible to earn a commission on sales occurring during the term of the Agreement. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
11. NO GUARANTEE
GatherWorks makes no guarantee regarding the level of sales you will receive in this program, or the amount of any payment to be made to you under this Agreement.
GatherWorks reserves the right to modify any of the terms and conditions of this Agreement at any time. You will be notified by email (using the email account on file for the registered Affiliate), and a change notice will be posted on our site. If the modifications are unacceptable to you, you may terminate this Agreement as per the conditions in Section 10 of this Agreement. Your continued participation in this Program after a change notice has been posted will constitute acceptance of the change.
12. LIMITATIONS OF LIABILITY; FORCE MAJEURE
EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO THE PROGRAM, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii) GATHERWORKS'S AGGREGATE LIABILITY TO AFFILIATE UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY GATHERWORKS TO AFFILIATE DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
13. REPRESENTATIONS AND WARRANTIES
You represent and warrant that (a) all of the information provided by you to GatherWorks to enroll in the Program is correct and current; and (c) you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder. You further represent and warrant that you will: (i) comply with all applicable laws, statutes, ordinances and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) are not pornographic, hate-related or otherwise violent in content.
GATHERWORKS MAKES NO WARRANTY, EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
14. INDEPENDENT CONTRACTOR RELATIONSHIP
The relationship of the parties hereunder is solely that of independent contractors, and nothing contained in this Agreement will be construed as creating any agency, joint venture, employment, partnership, representations or other such relationship between the parties. Neither party is authorized under this Agreement to enter into any contracts, commitments or other legal obligations on behalf of the other party and neither party shall represent having such authority.
This Agreement shall be governed by the laws of the State of New Hampshire, except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Hillsborough County, New Hampshire. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in a writing executed by both parties, by your online acceptance of updated terms, or after your continued participation in the Program after such terms have been updated by GatherWorks. The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to GatherWorks. Notwithstanding the foregoing, GatherWorks may assign this Agreement to anyone at any time without notice.