ORCS Web, Inc
Affiliate Program Agreement
This agreement (the “Agreement”) is made by and between ORCS Web, Inc (the “Company”) and you (the “Affiliate”), as an affiliate participating in the OrcsWeb Affiliate Program. By signing-up for participation in the Affiliate Program, you indicate your acceptance of this Agreement and its terms and conditions.
WHEREAS Affiliate wishes to include certain materials promoting Company, and to include a link to Company's website within those materials on Affiliate's website;
NOW THEREFORE, in consideration of the mutual promises, covenant, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
1. Promotional Materials. Company shall make available to Affiliate certain banner
advertisements, button links, text links, and/or other graphic or textual material for display and
use on the Affiliate website (the "Promotional Materials"). Affiliate shall display the
Promotional Materials on Affiliate's website prominently and as Affiliate sees fit, provided that
the manner of display shall be subject to the terms and conditions of this agreement. Affiliate
shall also include a link from the Promotional Materials to Company's website, as specified by
Company.
2. Use of Promotional Materials. The Affiliate's use and display of Promotional Materials on the
Affiliate's site shall conform to the following terms, conditions and specifications:
A) Affiliate may only use the Promotional Materials for the purpose of promoting
Company's website (and the products and services available thereon), and for linking to
Company's website.
B) The Promotional Materials will be used to link only to Company's website, to the
specific page and address as specified by the Company.
C) Links to the Company's website may change from time to time and it is the Affiliate's
responsibility to update those links as necessar y.
3. License. Company hereby grants to Affiliate a nonexclusive, nontransferable license (the
"License") to use the Promotional Materials as specified under the terms and conditions of the
Agreement. The Terms of the License shall expire upon the expiration or termination of this
Agreement.
4. Intellectual Property. Company retains all right, ownership, and interest in Promotional
Materials, and in any copyright, trademark, or other intellectual property in the Promotional
Materials. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership
or interest in the Promotional Materials, or in the underlying intellectual property, other than the
rights to use the Promotional Materials granted under the License, as set forth in Section 3.
5. Relationship of Parties. This Agreement shall not be construed to create any employment
relationship, agency relationship, or partnership between Company and Affiliate. Affiliate shall
provide services for Company as an independent contractor. Affiliate shall have no authority to
bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company
in any respect.
6. Referral Fee.
A) In exchange for Affiliate's display of the Promotional Materials, and for Affiliate's
compliance with and performance of the terms and conditions of this Agreement,
Company shall pay to Affiliate a referral fee (the “Referral Fee”) for any new client which
signs-up for a Company hosting plan via a link on the Affiliate’s website to the Company’s website.
Referral Fee is equal to 1x the Referred Client’s monthly hosting fee. Maximum referral fee is limited
to $2,000.00 per new referred client.
B) Company has the right to change the amount of the Referral Fee at any time without
prior notice to Affiliate.
C) Company shall keep accurate and up-to-date records of the data used to determine the
total amount of Referral Fee owed to Affiliate. Affiliate shall be given reasonable
access to these records upon request. Any discrepancy between the amount of
Referral Fee owed according to these records, and the actual amount of Referral Fee
paid to Affiliate in any period or periods shall be rectified by Company within 14 days of
discovering such discrepancy.
D) Company shall pay all Referral Fees accrued and payable to Affiliate on the 6 month anniversary date of the
Referred Client’s sign-up date. All Referral Fees paid within 10 days of anniversary month’s end.
E) In the event that the Affiliate materially breaches this Agreement and Company
terminates this Agreement within 30 days of such breach, then any accrued payable
Commissions owing to Affiliate shall be forfeited, and Company shall not be obligated
to pay such Commissions to Affiliate.
7. Affiliate's Representations and Warranties. Affiliate represents and warrants the following:
A) Affiliate has the legal authority to enter into this Agreement and to be bound to the
promises, covenants, and other duties set forth in this Agreement.
B) Affiliate's website does not contain any materials that are:
i. Sexually explicit, obscene, or pornographic;
ii. Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing,
or discriminatory (whether based on race, ethnicity, creed, religion, gender,
sexual orientation, physical disability, or otherwise);
iii.Graphically violent, including any violent video game images; or
iv. Solicitous of any unlawful behavior
C) Affiliate has obtained any necessary clearances, licenses, or other permission for any
intellectual property used on Affiliate's website. Nothing on Affiliate's website infringes
upon the intellectual property rights of any person or entity. No person or entity has
brought or threatened an action claiming such infringement, nor does Affiliate have any
reason to believe than any person or entity will bring or threaten such a claim in the
future.
D) Affiliate will not use the Promotional Materials in any manner except as set forth above.
E) Affiliate will not make any claim to ownership of the Promotional Materials, or of the
copyright, trademark, or other intellectual property therein.
F) Affiliate will not publish or otherwise distribute any advertising materials for Affiliate's
website that reference Company or Company's website unless Company gives prior
consent to the distribution of such materials. Affiliate will not use Company's name (or
any name that is confusingly similar to Company's name) for any purpose on its website,
in its promotional materials, or in any other context except to promote Company's
website as specified in this Agreement. Affiliate will not register any domain name that
incorporates Company's name, or that is confusing similar to Company's name.
G) Affiliate will not engage in the distribution of any unsolicited commercial emails (spam)
in any way mentioning or refer encing Company, Company's website or Company's
Promotional Materials.
8. Indemnification. Affiliate shall indemnify Company and hold harmless Company from any
claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate's
warranties set forth in Section 7 above. Affiliate shall also indemnify and hold harmless
Company for any damage, loss or other cost arising out of the use or misuse by Affiliate of the
Promotional Materials.
9. Confidentiality. Any information that Affiliate is exposed to by virtue of its relationship with
Company under this agreement, which information is not available to the general public, shall
be considered to be "Confidential Company Information." Affiliate may not disclose any
Confidential Company Information to any person or entity, except where compelled by law,
unless Affiliate obtains prior written consent for such disclosure from Company.
10.Term.
A) This agreement shall become effective immediately upon its acceptance by Affiliate and shall remain
in full force and effect indefinitely, or until terminated pursuant to this Section 10.
B) Either Party shall have the right to terminate this Agreement at any time and for any
cause. The terminating Party must give written notice to the other Party at least 3
business days prior to the intended date of ter mination.
11.Taxes. Company shall not be responsible for any taxes owed by Affiliate arising out of
Affiliate's relationship with Company as set forth in this Agreement. Company shall not
withhold any taxes from the Referral Fees paid to Affiliate.
12.Limitation of Liability. Company shall not be liable for any loss of profits or costs, or for any
direct, indirect, special, incidental or consequential damages, including costs associated with the
procurement of substitute goods or services (whether Company was or should have been aware
or advised of the possibility of such damage), arising out of or associated with any loss,
suspension or interruption of service, termination of this Agreement, use or misuse of the
Promotional Materials, or other performance of services under this Agreement.
13.Governing Law. This Agreement shall be construed in accordance with, and governed in all
respects by, the laws of the State of North Carolina, without regard to conflicts of law principles.
14.Counterparts. This agreement may be executed in several counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute one agreement.
15.Severability. If any parts or parts of this Agreement shall be held unenforceable for any reason,
the remainder of this Agreement shall continue in full force and effect. If any provision of this
Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if
limiting such provision would make the provision valid, then such provision shall be deemed to
be construed as so limited.
16.Headings. The headings for section herein are for convenience only and shall not affect the
meaning of the provisions of this Agreement.
17.Entire Agreement. This Agreement constitutes the entire agreement between Company and
Affiliate, and supersedes any prior understanding or representation of any kind preceding the
date of the Agreement. There are no other promises, conditions, understandings or other
agreements, whether oral or written, relating to the subject matter of this Agreement. This
Agreement may be amended upon mutual agreement of the Parties.
