TERMS OF SERVICE / BUSINESS FOR CUSTOMERS AND AFFILIATES
Last Modified: 7/16/2016
This is a terms of service/business between you (the Customer / Affiliate) and us (DBA Alva Site). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. Please read it carefully. By receiving alvasite.com Services or acting as an Affiliate you are agreeing to these terms.
TERMS FOR CUSTOMERS
1. Introduction And Definitions
“Agreement” means these Customer Terms of Service and all materials referred or linked to in here.
“Communication Services” means third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Subscription Service that enable you to communicate with the public or with a private group.
“Confidential Information” means all information provided by you or us (“Discloser”) to the other (“Receiver”), 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 Discloser or (ii) was known to the Receiver before receipt from the Discloser.
“Customer Data” means the name, business name, email address, phone number, address, and similar information submitted by you or we collect via the Subscription Service or by phone.
“Customer Materials” means all materials that you provide or post, upload, input or submit for public display.
“Unsuitable Content” any material or content that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party’s Intellectual Property Rights.
“Deliverables” the web pages developed by Alva Site under this agreement containing content, links, tagging and other search engine optimization techniques in order to increase the ranking and prominence of the Website (and/or its web pages) in the result pages of search engines (“SEO Pages”); reports; analyses; statistics; content and other materials required to be delivered by Alva Site in accordance with this agreement.
“Intellectual Property Rights” patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up, rights to goodwill or to sue for passing off (or unfair competition), rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, and renewals or extensions of, and rights to claim priority from such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Pre-Existing Work” the works, concepts, items and materials either developed or procured to be developed by Alva Site or its personnel at any time for use in relation to Alva Site’s business or any or all of Alva Site’s customers generally and not specifically for the provision of the Services or Deliverables to Customer.
“AlvaSite Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Add-On Services, including Enrichment Data.
“Order” means the AlvaSite approved form or online subscription process by which you agree to subscribe to the Subscription Service plan and purchase a Services or Products from AlvaSite.com. Most Orders are completed through our online payment process or by phone.
“Alva Site Products“, “Subscription Service” or “Service” means our web-based applications, tools, platform and related products and services that you have subscribed to by an Order Form or that we otherwise make available to you, and developed, operated, and maintained by us, including website hosting, that we provide to you.
“Subscription Fee” means the amount you pay for the Subscription Service, billed monthly.
“Subscription Term” means the Initial Subscription Term and all Renewal Subscription Terms.
“Third-Party Products” means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-Alva Site services available from 3rd party companies.
“Third-Party Sites” means third-party websites linked from within the Subscription Service, including Communications Services.
“Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
“You”, “your” or “Customer” means the person or entity using the Subscription Service or receiving the Add-On Services and identified in the applicable billing statement, online subscription process, Order Form or Statement of Work as the customer.
2. The Subscription Service
2.1) Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement.
2.2) Availability. We make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance or other unforeseen circumstances.
2.3) Limits. Limits may apply to the number of Contacts, Users, Site Visits, keywords tracked, competitors tracked, and emails per month. Any limits will be specified in your Order Form and this Agreement.
2.4) Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. But we will not make changes to the Subscription Service that materially reduce the functionality of the Subscription Service provided to you during the Subscription Term. We might provide some or all elements of the Subscription Service through third party service providers.
2.5) Additional Features. You may subscribe to additional features of the Subscription Service by agreeing to a new Order Form.
3. Customer Support
3.1) Support. Support is included in your Subscription Fee. Phone support for the Subscription Service is available 9AM to 9PM Eastern Time (GMT-5), Monday through Friday, excluding US national holidays. We accept webform support questions 24 Hours per Day x 7 Days per Week. Webform responses are provided during phone support hours only. We attempt to respond to webform support questions as soon as possible. We do not promise or guarantee any specific response time.
You may purchase Add-On Services through an Order Form or Statement of Work. Unless otherwise described in a Statement of Work or Order Form, the Add-On Services we provide are described at https://www.alvasite.com/services (or other URL we designate). Fees for these Add-On Services are in addition to your Subscription Fee. If you purchase Add-On Services that recur, they will be considered part of your subscription and will renew in accordance with the ‘Renewal Subscription Term’ section below. Unless otherwise agreed, all Add-On Services are performed remotely.
For Add-On Services performed on-site, you will reimburse us our reasonable cost for all expenses incurred in connection with the Add-On Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice.
If there are a specific number of hours included in the Add-On Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the “Expiration Period”). If there are deliverables included in the Add-On Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Delivery Period”). If the Add-On Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Add-On Services will be deemed to be complete at the end of the Delivery Period. If the Add-On Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services.
We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
5. Fees and Payments
5.1) Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you (i) change products or base packages, or (i2i) subscribe to additional features or products. Where a price change applies to you, we will charge or invoice you under the new price structure, starting with the next Billing Period in the Subscription Term, except as provided below under ‘Fee Adjustments During a Billing Period’.
5.2) Fee Adjustments During a Billing Period. The Subscription Fee will increase during the course of a Billing Period if you change products, base packages or exceed your Maximum Pages, Contacts in a Billing Period. The Subscription Fee will be adjusted up to the tier price which corresponds with number of location(s), change products, new pages or subscribe to additional features for use during the Billing Period. Our pricing and limits will be as set forth at https://www.alvasite.com/pricing. Once increased, your Subscription Fee will not decrease, even if there is a subsequent reduction in the number of Contacts or emails sent.
5.3) Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
5.4) Payment against invoice. If you are paying by invoice, we will invoice you at the beginning of the Initial Subscription Term and at the beginning of each subsequent Billing Period, and other time during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
5.5) Payment Information. You will inform Alva Site if your contact information, billing information and credit card information change. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are a AlvaSite partner that purchases on behalf of a Customer, you agree to be responsible for the Order Form and to guarantee payment of all fees.
5.6) Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
6. Subscription Term & Renewal
Initial Subscription Term. The initial subscription term shall begin on the effective date of your subscription and expire at the end of the 24th month of your service (“Initial Subscription Term”).
Renewal Subscription Term. Unless one of us gives the other written notice that it does not intend to renew the subscription, this Agreement will automatically renew for the length of the Initial Subscription Term (“Renewal Subscription Term”). Written notice of non-renewal must be sent no more than ninety (60) days but no less than forty-five (30) days in advance of the end of the Subscription Term. The Renewal Subscription Term will be on the current terms and conditions of this Agreement, and subject to the renewal pricing provided for in your Order Form or, if not specified in the Order Form, on our standard pricing available at https://www.alvasite.com/pricing. In addition, on renewal, the current product usage limits will apply to your subscription, unless otherwise agreed to by you and Alva Site. Should you decide not to renew, you may send the notice of non-renewal by email to firstname.lastname@example.org
7. Domains and Admin access to Website
7.1. As part of the provision of its Services the Alva Site may acquire or procure the use of internet domains and internet domain names (collectively, “the Domains”). Title to these Domains shall belong or continue to belong to Alva Site or to a third party whose permission to deploy the Domains for the Services the Company shall have.
7.2. Where Services are provided by Alva Site to a Customer for a period of 10 months or more, and the Customer makes all payments to Alva Site properly for 10 months under this agreement, the Alva Site will within a reasonable time transfer a Domain in use after 10 months per costumer’s request. If a customer requests a domain before 10 months, he/she needs to make a payment for the months left under this agreement.
7.3. Alva Site reserves and the Customer agrees to grant to us the right to choose which domain names to use and the mechanism(s) of transferring these domains. Should assistance from the Customer be reasonably required by Alva Site to give effect to the transfer of the domains under clause 7.2, the Customer shall provide any such assistance that is reasonably required by us. If the Customer fails to provide assistance that has been reasonably required, Alva Site is relieved of any liability arising out of the same.
7.4. Where Web Design Services have been provided by Alva Site to a Customer for a period of 12 months or more, and the Customer has made all payments to Alva Site properly due under this agreement, the Alva Site shall provide the Customer Admin Access to Customer’s Website.
8. AlvaSite’s Proprietary Rights
This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws. The Subscription Service and Consulting Services belong to and are the property of us or our licensors (if any). We retain all ownership rights in the Subscription Service and Consulting Services. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the AlvaSite Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us. The appearance, layout, color scheme, and design of the Alva Site are protected. You may not use any of these without our prior written permission.
If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Subscription Service (unless, of course, you have a source other than the Subscription Service for such Enrichment Data.) Enrichment Data may be made available to you based on Customer Data, but we will not use your Customer Data to enrich data for other parties. The Enrichment Data we provide may be provided from or through third party service providers or public sources.
We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.
9. Customer’s Proprietary Rights
As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as permitted by this Agreement. If you choose to use shortened URLs through the Subscription Service, you acknowledge that the data related to the number of clicks on a shortened URL may be publicly available and used by other parties. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
11. Customer Responsibilities.
To realize the full value of the Subscription Service and Consulting Services, your participation and effort are needed. Resources that may be required from you include a Project Manager, one or more Content Creators, a Sales Sponsor, an Executive Sponsor and a Technical Resource. Responsibilities that may be required include planning of marketing programs; setting of a content creation calendar; creating blog posts, social media content, Calls-To-Action (CTAs), downloads, emails, nurturing content, and other materials; acting as internal liaison between sales and marketing; providing top level internal goals for the use of the Subscription Service; attending regular success review meetings; and supporting the integration of the Subscription Service with other sales and marketing systems.
You grant us the right to add your name and company logo to our customer list and website. You grant us the right to add our name and company logo to your (customer ) website as a designer, developer or service provider. The font size must be not more then 12 pt and image size not more then W100 x H50, with or without link.
13. Customer Data
13.2) Aggregate Data. We may monitor use of the Subscription Service by all of our customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you.
13.3) Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States. You acknowledge that in all cases that AlvaSite acts as the processor of Customer Data and you remain controller of Customer Data for applicable European Union data protection regulations.
13.4) No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
14. Use and Limitations of Use
14.1) Acceptable Use. You will comply with our Acceptable Use Policy (“AUP”).
14.2) Prohibited and Unauthorized Use. You will not (i) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Subscription Service; (iii) attempt to gain unauthorized access to the Subscription Service; (iv) access the Subscription Service other than through our interface; or (v) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
14.3) You will notify us right away of any unauthorized use of your Users’ identifications and passwords or your account.
15. Acceptable Use of Communication Services
16. Third-Party Sites and Products
Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warranty the Third-Party Site or Product.
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, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you; (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using your User information. 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.
18. Disclaimers; Limitations of Liability
18.1) Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, AlvaSite CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, AlvaSite CONTENT AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SUBSCRIPTION SERVICE, AND THE CONSULTING SERVICES INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
18.2) 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.
18.3) Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR INDEMNITY OBLIGATIONS, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF TWO THOUSAND DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TEN MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
18.4) Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
19. Termination, Suspension and Expiration
19.1) Termination for Cause. Either party may terminate this Agreement for cause: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
19.2) Suspension for Prohibited Acts. We may suspend any User’s access to the Subscription Service for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the AlvaSite email send service that results in excessive bounce-backs, SPAM notices or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
19.3) Suspension for Non-Payment. We may suspend your access to all or any part of the Subscription Service upon ten (10) days’ notice to you of non-payment of any amount past due. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
19.4) Suspension for Present Harm. If your website on, or use of, the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service. We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service.
19.5) Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and AlvaSite Content, and if we request, you will provide us written confirmation that you have discontinued all use of Enrichment Data. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
19.6) Retrieval of Customer Data. As long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your Subscription, we will provide you with temporary access to the Subscription Service to retrieve, or we will provide you with copies of, all Customer Data then in our possession or control. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
20.1) Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Subscription Service. If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at https://AlvaSite.com/terms-of-business and we will let you know through the notification service. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically.
If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply.
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.
20.2) 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; government restrictions; 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.
20.3) 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.
20.4) Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
20.5 Compliance with Laws. We will comply with all U.S. state and federal laws in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws. You must comply with all laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.
20.6) Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
20.8) 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 your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
20.9) No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
20.10) Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
20.11) 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.
20.12) Survival. The following sections in the ‘General Terms’ shall survive the expiration or termination of this Agreement: ‘Definitions’, ‘Fees and Payments’, ‘Alva Site’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, ‘Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Termination, Suspension and Expiration’, and ‘General’.
20.13) Precedence. In the event of a conflict between the terms of this Agreement and an Order Form or Statement of Work, the terms of the Order Form or Statement of Work shall control, but only as to that Order Form or Statement of Work.
20.14) Suspension. We may suspend, limit, or terminate the Free Services for any reason at any time without notice.
20.15) Contracting Entity and Applicable Law. This Agreement is governed by the provisions of the ‘Contracting Entity and Applicable Law’ section in the ‘General Terms’ above applicable to those in North America, regardless of where you are located.
20.16) Survival . The following sections in this ‘Free Services’ section shall survive the expiration or termination of this Agreement: ‘Definitions’, ‘Disclaimers; Limitations of Liability’, ‘Contracting Entity and Applicable Law’, and ‘Survival’.
21. Alva Site’s warranties as to unsuitable content
The Alva Site warrants, represents and undertakes that all content (excluding the Materials) that it develops for the Deliverables pursuant to this agreement will not contain any material or content that is obscene, pornographic, seditious, defamatory, threatening, liable to incite racial hatred, menacing, or in breach of any third party’s Intellectual Property Right (“Unsuitable Content”). The Alva Site shall notify the Customer immediately if it becomes aware that any content in the Deliverables may be Unsuitable Content.
AFFILIATE TERMS / AGREEMENT
BY SUBMITTING AN APPLICATION TO JOIN OR BY PARTICIPATING IN THE ALVA SITE AFFILIATE PROGRAM, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
Affiliate Agreement Definitions
“We“, “Our“, “Us“, – “Alva Site” “alvasite.com“, (collectively, “Alva Site”)
“You“, “Your” or “Affiliate(s)” – the business, individual or entity applying for participation in the Alva Site Affiliate Program, or that displays Our products, services and/or promotions on its website and/or through offline representation through the affiliate tracking code in exchange for receiving remuneration from Alva Site for sales resulting from such display.
“Affiliate Site” – the Affiliate’s Internet site which displays Alva Site Products and Services and/or promotions.
“Alva Site Products and Services” – products and services that are available for purchase through alvasite.com.
“Commission Fees” or “Commissions” – Under the Affiliate Program, subject to the terms hereof, you will be paid a Commission Fee for each Qualified Purchase by a Referred Customer that you refer to Alva Site under and in accordance with this Agreement.
“Referred Customer” – each new and unique customer referred from Affiliate through a Link (defined in Section 2 ) provided by or approved by Us, which meets the criteria set forth in Section 5 hereof.
“Registration Form” – any and all order forms, Registration Forms, or other signup or acceptance form (whether online, paper, fax, or otherwise) submitted by You or, as applicable, the Referred Customer to make a Qualified Purchase.
“Qualified Purchase” – a sale of Alva Site Products and Services by Alva Site, with a term of 3 months or longer, to a Referred Customer which meets the criteria set forth in Section 5 hereof.
“Affiliate Site” – the Affiliate’s Internet site which displays Alva Site Products and Services and/or promotions.
- Promotion of Our Affiliate Relationship: If You qualify and agree to participate as an Affiliate, We will make available to You a variety of graphic and textual links (each of these links sometimes being referred to herein as “Links” or, individually, as a “Link”), which are subject to the terms and conditions hereof. The Links will serve to identify Your site as a member of the Alva Site Affiliate Program and will establish a Link from Your site or e-mail to Ours. The Links may connect to any area of Our site (although commissions will only be issued on Qualified Purchases). In utilizing the Links, You agree that You will cooperate fully with Us in order to establish and maintain such Links.You also agree that You will display on Your site only those graphic or textual images (indicating a Link) provided by Us or text messages expressly approved in advanced in writing by Alva Site. All Affiliate Sites shall display such graphic and/or textual images prominently in relevant sections of their site. Furthermore, you agree not to use cookie stuffing techniques that set the affiliate tracking cookie without the Referred Customer’s knowledge. (example: iframe). Any information with respect to Us that is going to be displayed on Your site must be provided by Us and expressly approved by Us in writing in advance of any display. EXCEPT AS PERMITTED ABOVE OR IN SECTION 13 BELOW, YOU SHALL NOT AND ARE NOT AUTHORIZED TO (i) USE THE ALVA SITE TRADEMARK, NAME OR ANY OF OUR OTHER INTELLECTUAL PROPERTY (OR ANY VARIATIONS OR MISSPELLINGS THEREOF OR OTHER TERM OR TERMS CONFUSINGLY SIMILAR TO ANY OF THE FOREGOING) (ALL OF THE FOREGOING, INCLUDING WITHOUT LIMITATION, THE “LINKS” AND THE “LICENSED MATERIALS” (DEFINED BELOW), ARE REFERRED TO HEREIN AS “OUR IP”), WITHOUT OUR EXPRESS PRIOR WRITTEN PERMISSION; (ii) USE OUR IP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), KEY WORDS, ADVERTISING, SEARCH TERMS, CODE, OR OTHERWISE; (iii) CAUSE OR CREATE OR ACT IN ANY WAY THAT CAUSES OR CREATES OR COULD CAUSE OR CREATE ANY “INITIAL INTEREST CONFUSION” OVER THE USE OF OUR IP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. YOUR USE OF OUR IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER (IN ADDITION TO BEING A BREACH OF THIS AGREEMENT) SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF OUR TRADEMARKS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS, AND MAY SUBJECT YOU TO CLAIMS FOR DAMAGES (INCLUDING WITHOUT LIMITATION, TREBLE DAMAGES FOR KNOWING OR WILFUL INFRINGEMENT), AND THE OBLIGATION TO PAY OUR LEGAL FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH WE SEEK TO ENFORCE OUR RIGHTS UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF OUR INTELLECTUAL PROPERTY RIGHTS. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. You are not allowed to post any refunds, credits or discounts, or other content concerning Alva Site, unless We have given You prior written permission in each instance. Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Program using banners and links. Each Link connecting users of Your site to the pertinent area of Our site will in no way alter the look, feel, or functionality of Our site. Any violations of the terms surrounding links, coupons, refunds, credits or discounts shall constitute a material breach of this Agreement, and may result in Your termination from the program or withholding of Commissions.
- FTC Endorsement Compliance: We require our affiliates to comply with these regulations. This includes, but is not limited to, Federal Trade Commission 16 CFR Part 255: Guides Concerning the Use of Endorsements and Testimonials in Advertising (http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf), which requires, among other criteria, that material connections between advertisers and endorsers be disclosed. This means that directories, review/rating sites, blogs and other websites, email or collateral that purport to provide an endorsement or assessment of an advertiser (in this case Alva Site) must prominently disclose the fact financial or in-kind compensation is provided from the advertiser.Alva Site reserves the right to withhold commission fees and cancel the affiliate relationship with you should we determine, at our discretion, that you are not in compliance with the previously mentioned guide or other FTC regulations/guides we deem relevant.
- Order ProcessingWe will process orders placed by Referred Customer who follow the Links from your website to alvasite.com We reserve the right, in our sole discretion, to reject orders that do not comply with certain requirements that we may establish from time to time. All aspects of order processing and fulfillment, including Alva Site service, cancellation, processing, refunds and payment processing will be our responsibility. We will track the Qualified Purchases generated by your website and will make this information available to you through our website. To permit accurate tracking, reporting, and Commission accrual, you must ensure that the Links between your website and our website are properly formatted.
- Commission DeterminationUnder the Affiliate Program, you will be paid a Commission Fee for each Qualified Purchase by a Referred Customer that you refer to Alva Site under and in accordance with the terms of this Agreement. Each Referred Customer and each Qualified Purchase must meet the following criteria (the “Criteria”):
- Each Referred Customer must be a new and unique visitor to Alva Site and must register by completing and submitting the Registration Form using a valid and unique account and billing information.
- Commission may not be paid for a Referred Customer that has transferred from any of our partners or subsidiaries.
- Each Referred Customer must make a Qualified Purchase, and provide a valid payment for the purchased Alva Site Products or Services. To generate a Commission Fee for you, each Referred Customer must be an active, qualified customer of Alva Site and must be up-to-date in all payments at the time the Commission Fees are processed and not have been subject to a refund, credit, cancellation, suspension or chargeback.
- Each Referred Customer must sign up in a manner, which in our sole judgment, definitively establishes that the Referred Customer was referred directly from you to Alva Site under this Agreement.
- Each Referred Customer must remain in compliance with our Terms of Service, Acceptable Use Policy and other policies that are active at the time the Commission Fees are processed.
- Commission Fees may not be paid for the Qualified Purchase if the Referred Customer has been offered or received coupons, refunds, credits or discounts from the Affiliate or if the Referred Customer has joined a business-opportunity program (as determined by Alva Site in its sole discretion) that is managed or participated in by the Affiliate, unless Alva Site has provided its prior written permission.
- If a Referred Customer has received a popup with a discounted offer, while leaving our site during their purchase, we will NOT pay commissions on purchase.
Alva Site reserves the right to withhold initial Commissions Fees for Affiliates who are new to the Affiliate program, or who have commissions that are potentially fraudulent as determined by Alva Site in its sole discretion, to determine the legitimacy and cancellation rates of Referred Customers. Alva Site reserves the right to suspend payment of Commission Fees at any time and indefinitely, if it suspects fraud or other improper activity or a potential breach of any of the terms in this Agreement by the Affiliate or a Referred Customer(s). Alva Site reserves the right to deduct from Affiliate’s current and future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, and cancelled Alva Site purchases. Where no subsequent Commission Fee is due and owing, Alva Site will send Affiliate a bill for the balance of such refunded purchase upon termination of the program or termination of the Referred Customer.Alva Site, in its sole discretion, reserves the right to withhold indefinitely any Commission Fee, and/or to reverse, deny or reject any Commission Fee, for:
- Any account/sale which has not been in an approved status in good standing as an account of Alva Site for a period of at least thirty (30) days.
- All commissions generated for accounts that may be fraudulent, including but not limited to the use of software that generates real and fictitious information.
- If we deem orders to be fraudulent or see a pattern of potentially fraudulent activity, including, without limitation, where there are multiple accounts from the same customer, or referral of accounts which do not comply with this Agreement. We review account information (including site content) to assess referrals.
- Altering Our Links in any way.
- Referred Customers that have been offered or received coupons, refunds, credits or discounts from the Affiliate or for Referred Customers who have joined a business opportunity program that is managed or participated in by the Affiliate, unless Alva Site has provided written permission.
- Customers engaging in “Domain Speculation,” which is determined by the identification of two (2) web hosting accounts with the same Referred Customer’s name, email address, or other identifying characteristic as determined by Alva Site and/or the identification of two (2) or more web hosting accounts that have no content on their websites or have similar content, templates or formatting, as determined by Alva Site.
- Affiliates whom we believe may be artificially submitting Referred Customers, engaging in the advertisement of business-opportunity sites (as determined by Alva Site in its sole discretion), using marketing practices that we deem to be unethical or likely to attract fraudulent signups and/or signups with a very low likelihood of renewal.
Alva Site reserves the right to immediately cancel or withhold for later review any Commission Fee based on the foregoing or that otherwise fails to meet the Criteria. It is the responsibility of the Affiliate to monitor the payment, denial and withholding of Commission Fees; Alva Site is not obligated to actively notify Affiliates of the status of Commission Fees. If an Affiliate has a question about a Commission Fee that has been cancelled or withheld, that Affiliate has 30 days from the day the payment was due to contact Alva Site to discuss or reclaim the Commission Fee. Any changes to decisions about cancelled or withheld Commission Fees are strictly at Alva Site’s discretion.Commissions for any Referred Customer who is associated with any Alva Site reseller, referral or other program may be removed from your payment. In other words, You may not receive double commissions or compensation.In the event that the Referred Customers that are referred to Alva Site by a specific Affiliate are determined to have an excessive cancellation rate (as determined by Alva Site in its sole discretion), Alva Site reserves the right to withhold or decline pending and future Commission Fees for the Affiliate.Any attempt by an Affiliate to manipulate, falsify or inflate Referred Customers, Qualifying Purchases or Commission Fees to intentionally defraud Alva Site or violation of any of the terms of this Agreement constitutes immediate grounds for Alva Site to terminate this Agreement and will result in forfeiture of any Commission Fees due to you.
6. Commission Fee Accrual and Payments: Subject to the terms of this Agreement, we will pay a Commission Fee equal to the specified percentage or dollar amount set forth in the Commission Report in Your Affiliate Console on a Qualified Purchase by a Referred Customer which occurs during the month for which such Commission Fee is being calculated. Commission Fees will be processed approximately 15 to 30 days after the end of the month in which they accrued as set forth below. Commissions will accrue and only become payable once you (i) provide all relevant tax and address documentation pursuant to Section 8 below and (ii) reach a commission level of $200 (the “Commission Threshold”) based on the commission rates stated on the Alva Site website, all as applied only to Qualified Purchases which occurred within three (3) months of the end of the calendar month in which the Qualified Purchases occurred. For example, if you provide sign-ups which result in Qualified Purchases that meet the Commission Threshold on January 10th, you must provide all relevant tax and address documentation by April 30th of the same year in order for Commission Fees to accrue and become payable. All Qualified Purchases eligible to result in Commissions under this Section 6 must remain active and in good standing pursuant to the terms of this Agreement in order to remain eligible for accrual. Once a Commission has accrued under this Section 6, the amount of such Commission shall be due and payable to you under the terms of Section 7. Alva Site reserves the right to change the Commission Threshold by amending this Agreement and will notify you for any such amendment pursuant to the terms of this Agreement.
7. Payment Forms/Types: Commission Fees shall be paid based on the current information in Your Affiliate profile. Please notify us promptly of any change in your address by updating your profile information in the Affiliate console. You are responsible for informing Alva Site of Your desired Payment form/type:
- You may choose to receive Commission Fees in the form of check made out in U.S. currency if you do not live in:
- i. any of the countries listed in our Acceptable Use Policy prohibited by regulations of the U.S. Office of Foreign Assets Controls (“OFAC”),
- ii. or if you live in any of the following countries: China, Nigeria, Vietnam, India, Egypt, Ghana, Indonesia, Lebanon, Macedonia, Morocco, Pakistan, Romania, Somalia, Ukraine, Russia, Bulgaria, Lithuania, Israel, Turkey or Yugoslavia.
- iii. This list of countries is subject to change by Alva Site at any time;
- You may choose to receive Commission Fees in the form of credit to your Alva Site account. If you elect to receive Commission Fees in the form of account credit, a check will not be mailed. Alva Site will credit your account in the amount of your Commission Fee, as defined in this Agreement;
- When available, You may choose to receive Commission Fees in the form of a PayPal payment. Please refer to PayPal’s policy to ensure you are eligible to receive payment if you reside outside of the United States. www.paypal.com/cgi-bin/webscr?cmd=_display-approved-signup-countries-outside
Alva Site is not responsible for any third-party fees charged by PayPal, bank or other financial institute used to receive Affiliate Commission Fees.
Check payments will only be reissued within 120 days of original issue date in the case of a lost check or stop-payment request. After 120 days, the payment will be voided. Check cancellation fees may be applied.PayPal payments will only be reissued within 120 days of original issue date in the case of incorrect paypal address or refusal from paypal to accept payment.You can update or change desired payment form at any time by updating your Affiliate Profile located in the Affiliate Console. Changes to desired payment form may take up to two payout cycles to take effect.Alva Site, in its sole discretion, reserves the right to modify the terms of this Commission payment method or schedule at any time. Such changes shall take effect when posted.Disputes: Affiliate has access to Alva Site’s real-time Affiliate Program statistics and activity and specifically agrees to file any tracking or commission disputes as well as any other disputes and discrepancies within 45 days after the end of the month in which the sale or event that is disputed occurred. Disputes filed after 45 days of the date on which the Qualified Purchase occurred will not be accepted by Alva Site and Affiliate forfeits forever any rights to a potential claim.
8. Taxes/Address Changes: It is Your responsibility to provide Alva Site with accurate tax and payment information that is necessary to issue a Commission Fee to You. If Alva Site does not receive the necessary tax or payment information within 90 days of a Qualified Purchase which would otherwise trigger Commission Fees, the applicable commissions shall not accrue and no Commission Fees will be owed with respect to such Qualified Purchase.Each Affiliate is required to submit a W8/W9 tax form.You are responsible for the payment of all taxes related to the commissions you receive under this Agreement. In compliance with U.S. tax laws, Alva Site will issue a Form 1099 to Affiliates whose earnings meet or exceed the applicable threshold. You are responsible for informing Alva Site about changes to postal and e-mail addresses, as well as any changes to your name, email address, contact information, tax identification number, or other personal information that will impact Alva Site’s ability to issue a valid Commission payment.Any address changes must be made in the Affiliate profile in the Affiliate Console at least 15 business days prior to the end of the calendar month in order for Commission Fees for that month to be sent to the revised address.
9. Reports of Qualified Purchases: You may log into your Affiliate Console to review Your click through and potential Qualified Purchases statistics on a daily basis. The potential Qualified Purchases shown in this report have not been reviewed to confirm they meet all criteria for Qualified Purchases. As such, Commission Fees may not be issued on all Referred Customers that appear in the Affiliate Console.
10. Obligations Regarding Your Site:
- You will be solely responsible for the development, operation, and maintenance of Your site and for all materials that appear on Your site. Such responsibilities include, but are not limited to, the technical operation of Your site and all related equipment; creating and posting product reviews, descriptions, and references on Your site and linking those descriptions to Our website; the accuracy and propriety of materials posted on Your site (including, but not limited to, all materials related to Alva Site Products and Services); ensuring that materials posted on Your site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability and responsibility for such matters.
- We have the right in Our sole discretion to monitor signups through Your site at any time and from time to time to determine if You are in compliance with the terms of this Agreement. If You are not in compliance We may terminate this Agreement immediately.
11. Alva Site Responsibilities: We will be responsible for providing all information necessary to allow You to make appropriate Links from Your site to Our site. Alva Site will solely be responsible for order processing for orders/Qualified Purchases placed by a Referred Customer following a Link from Your site, for tracking the volume and amount of Qualified Purchases generated by Your site, and for providing information to Affiliates regarding Qualified Purchases statistics. Alva Site will be solely responsible for all order processing, including but not limited to payment processing, cancellations, refunds and related Alva Site service. Any determination made by Alva Site regarding the foregoing shall be binding absent manifest error.
12. Policies and Pricing: Referred Customers who buy Alva Site Products and Services through the Affiliate network will be deemed to be Our Customers. Accordingly, all of Our rules, policies, and operating procedures concerning Alva Site orders, Alva Site service, and Alva Site Products and Services sales will apply to those Customers. We may change Our policies and operating procedures at any time. For example, We will determine the prices to be charged for Alva Site Products and Services sold under the Affiliate Network in accordance with Our own pricing policies. Prices and availability of Alva Site Products and Services may vary from time to time, from affiliate to affiliate, and from region to region. Because price changes may affect products that You have listed on Your site, You may or may not be able to include price information in Your product descriptions. We will use commercially reasonable efforts to present accurate information, but We cannot guarantee the availability or price of any particular product or service. Please note that by signing up to be an Affiliate to Our Terms of Service/Business.
13. E-mails and Publicity: You shall not create, publish, transmit or distribute, under any circumstances, any bulk electronic mail messages (also known as “SPAM”) without prior written consent from Alva Site for each and every day when any bulk mailing will occur. Alva Site, in its sole discretion, reserves the right to reject each and every e-mail mailing. Additionally, You may only send e-mails containing an Alva Site affiliate link and or a message regarding Alva Site or Alva Site’s Affiliate Program to person(s) who have been previously contacted and whom consented to the fact that the You will be sending an e-mail containing Alva Site information or information about the Alva Site affiliate program. Failure by You to abide by this section, CAN-SPAM Act of 2003 or our Anti-Spam Policy , in any manner, will be deemed a material breach of this Agreement by You and foreclose any and all rights you may have to any commissions. If your account has excessive clicks in a very short period of time as determined by Alva Site in its sole discretion, the Affiliate relationship may be terminated.
14. Licenses and Use of the Alva Site.com Logos and Trademarks.
- Subject to the limitations set forth in Section 2 above and otherwise in this Agreement, we grant you a non-exclusive, non-transferable, revocable license to (i) access our site through the links solely in accordance with the terms of this agreement and (ii) solely in connection with such links, to use the Alva Site.com trademark and logo and similar identifying material relating to us (but only in the form(s) that they are provided by us) (collectively, the “Licensed Materials”), for the sole purpose of selling Alva Site Products and Services on your site and as approved in advance by us. You may not alter, modify, or change the Licensed Materials in any way. You are only entitled to use the Licensed Materials to the extent that You are a member in good standing of the Alva Site Affiliate Program.
- You shall not make any specific use of any Licensed Materials for purposes other than selling Alva Site Products and Services, without first submitting a sample to Us and obtaining the express prior written consent of Your Alva Site account executive, which consent shall not be unreasonably withheld. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays Alva Site, any hosted member of Alva Site or any Alva Site employee or representative in a negative light. We reserve all of Our rights in the Licensed Materials and of Our other proprietary rights. We may revoke Your license at any time, by giving You written notice. If not revoked, this license shall terminate upon expiration or termination of this Agreement.
- You grant to Us a non-exclusive license to utilize Your names, titles, and logos, as the same may be amended from time to time (the “Affiliate Trademarks”), to advertise, market, promote, and publicize in any manner Our rights hereunder; provided, however, that We shall not be required to so advertise, market, promote, or publicize the Affiliate Trademarks. This license shall terminate upon the expiration or termination of this Agreement.
15. Term of the Agreement: The term of this Agreement will begin upon Our acceptance of Your Affiliate Program application and will end when terminated by either party. Either You or We may terminate this Agreement at any time, with or without cause. You are only eligible to earn Commission Fees on Qualified Purchases occurring during the term, and Commission Fees earned through the date of termination will remain payable only if the orders for the related Alva Site Products and Services are not cancelled and comply with all Terms laid out in this Agreement. We may withhold Your final payment of Commission Fees for a reasonable time to ensure that all Qualified Purchases are valid and payment from Referred Customers are legitimate as determined by Alva Site in its sole discretion.Any Affiliate who violates either this Agreement or Alva Site’s Terms and Conditions will immediately forfeit any right to any and all accrued Commissions Fees and will be removed from the Alva Site Affiliate Program.Alva Site reserves the right to remove an Affiliate from the Affiliate Program, and to terminate or suspend this Agreement, at an time for any reason, in Alva Site’s sole discretion.Without limitation, Affiliate’s participation in the Program, and this Agreement, shall be deemed automatically terminated immediately and all commissions forfeited upon Affiliate’s violation of any of the terms of this Agreement or of any applicable law or regulation having the force of law.
16. Modification: We may modify any of the terms and conditions contained in this Agreement at any time in Our sole discretion. Such modifications shall take effect when posted on Our site. Alva Site, in its sole discretion, reserves the right to notify You by e-mail and further reserves the right to withhold notification of any changes made to this Agreement. Modifications may include, but are not limited to, changes in the scope of available Commissions, Commission amounts/percentages, payment procedures, Commission Fee payment schedules, and Affiliate Program rules. If any modification is unacceptable to You, Your only recourse is to terminate this agreement. Your continued participation in the Affiliate Program following Our posting of a change notice or new agreement on Our site will constitute binding acceptance of the change.
17. Disclaimers: We make no express or implied warranties or representations with respect to the Affiliate Program or any Alva Site Products and Services sold through the Affiliate Program (including, without limitation, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). In addition, We make no representation that the operation of Our site will be uninterrupted or error free, and We will not be liable for the consequences of any interruptions or errors, including the tracking of information about Referred Customers during the period of interruption.
18: Relationship of Parties: You and Alva Site are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on Our behalf. You will not make any statement, whether on Your site or otherwise, that reasonably would contradict anything in this Section.
19: Representations and Warranties:
You hereby represent and warrant to us as follows:
- This Agreement has been duly and validly executed and delivered by You and constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms.
- The execution, delivery, and performance by You of this Agreement and the consummation by You of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which You are subject, (ii) any order, judgment, or decree applicable to You or binding upon Your assets or properties, (iii) any provision of Your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to You or binding upon Your assets or properties.
- You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to Us the license to use Your trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to You or binding upon Your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
- No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by You in connection with the execution, delivery, and performance of this Agreement or the taking by You of any other action contemplated hereby.
- There is no pending or, to the best of Your knowledge, threatened claim, action, or proceeding against You, or any Affiliate of Yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to Your trademarks, and, to the best of Your knowledge, there is no basis for any such claim, action, or proceeding.
- During the term of the Agreement, You will not include in Your site content that is, in Our opinion, unlawful, harmful, threatening, defamatory, obscene, harassing, racially, ethically, or otherwise objectionable or are in violation of Our Terms of Service or Acceptable Use Policy.
- You are at least sixteen (16) years of age.
- Each Referred Customer and each Qualifying Purchase referred or submitted by You to Us, is valid, genuine, unique and not fraudulent and meets each of the Criteria for generating a Commission Fee as provided in this Agreement.
20. Limitation of Liability: WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
21. Indemnification: You hereby agree to indemnify and hold harmless Us and Our subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that Our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by You herein, or (iii) any claim related to Your site, including, without limitation, its development, operation, maintenance and content therein not attributable to Us.
22. Confidentiality: Each of the parties here to agrees that all information including, without limitation, the terms of this Agreement, business and financial information, Alva Site and vendor lists, and pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party any obligation of confidentiality to the discloser hereunder. Notwithstanding the foregoing, each party is hereby authorized to deliver the copy of any such information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
23. Independent Investigation: Your application submission acknowledges that you have read this agreement and agree to be bound by all its terms and conditions. you understand that we may at any time (directly or indirectly) solicit Alva Site relationships on terms that may differ from those contained in this agreement. we may also solicit Alva Site relationships with entities that operate websites that are similar to or compete with your website. You have independently evaluated the desirability of participating in the Alva Site Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this agreement.
24. Governing Law: The laws of the United States and the State of Massachusetts will govern this Agreement, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Middlesex County County, Burlington, Massachusetts and You irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without Our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce Your strict performance of any provision of this Agreement will not constitute a waiver of Our right to subsequently enforce such a provision or any other provision of this Agreement.
I INDICATE MY APPROVAL OF THIS AGREEMENT AND DESIRE TO BECOME AN AFFILIATE UNDER THESE TERMS AND CONDITIONS BY COMPLETING AND SUBMITTING THE AFFILIATE PROGRAM SIGNUP FORM, BY SUBMITTING PROPOSED REFERRED CUSTOMERS OR QUALIFYING PURCHASES TO US UNDER OUR AFFILIATE PROGRAM AND/OR BY COLLECTING AND COMMISSION FEES FROM US.