24Host7.com Web Hosting Agreement
This WEB HOSTING AGREEMENT (the "Agreement") is a contract between DIVYWEB, LLC, an Arizona limited liability company and its dba(s) ("DIVYWEB") and you, the entity or individual using DIVYWEB'S website or its web hosting services (the "Customer," "You" or "Your"). This Agreement sets forth the provisions, terms and conditions applicable to your purchase and use, in any way, of DIVYWEB'S web hosting and other Internet-related
services (collectively, the "Services") available at www.24HOST7.com (this "Site").
PLEASE READ THESE PROVISIONS, TERMS AND CONDITIONS IN THEIR ENTIRETY BEFORE USING THIS SITE OR ANY OF THE SERVICES. BY USING THIS SITE OR ANY OF THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE
READ THIS ENTIRE AGREEMENT AND AGREE TO BE BOUND BY AND ABIDE BY ALL TERMS, CONDITIONS, PROVISIONS AND RULES CONTAINED HEREIN (AS SAME MAY BE AMENDED FROM TIME TO TIME). THIS AGREEMENT SHALL BE BINDING ON YOU, THE CUSTOMER, INCLUDING, WITHOUT LIMITATION, ALL OF YOUR EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS AND AGENTS. DIVYWEB RESERVES THE RIGHT, IN ITS SOLE AND ABSOLUTE DISCRETION, TO CHANGE OR MODIFY THIS AGREEMENT AT ANYTIME WITHOUT PRIOR NOTICE TO THE CUSTOMER. ANY SUCH CHANGE OR MODIFICATION SHALL BECOME EFFECTIVE
UPON POSTING ON THE SITE, WHICH YOU HEREBY AGREE TO REGULARLY AND ROUTINELY REVIEW FOR UPDATES, CHANGES AND/OR CHANGES APPLICABLE TO THE SERVICES. YOUR CONTINUED USE OF THE SITE AND/OR THE SERVICES AFTER ANY SUCH CHANGE OR MODIFICATION BECOMES EFFECTIVE WILL CONSTITUTE YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY AND ABIDE BY ALL SAID CHANGES AND MODIFICATIONS.
IF YOU DO NOT AGREE TO ALL TERMS CONTAINED IN THIS AGREEMENT, INCLUDING ANY AND ALL CHANGES OR MODIFICATIONS HERETO, DO NOT USE OR CONTINUE TO USE THIS SITE OR THE SERVICES.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to the following:
1. PURPOSE OF AGREEMENT. DIVYWEB agrees to provide to the Customer, and the Customer agrees to receive from DIVYWEB, use of the Site and/or the Services, subject to Customer.s full compliance with all terms, conditions and provisions of this Agreement.
2. TERM AND TERMINATION. The term of this agreement shall be for a minimum of one (1) year (the "Minimum Term") and a maximum of three (3) years (the "Maximum Term") from the date on which Customer agrees to be bound hereby (the "Effective Date"), unless otherwise agreed
to, in writing, by the parties. The term of this Agreement shall renew automatically every year thereafter, unless either party provides written notice to the other party of its intent not to renew this Agreement at least 30 days prior to the expiration of the term then in effect. In the event Customer desires to terminate this Agreement before the expiration of the contract term, Customer must provide 30-days advance written notice to DIVYWEB of its intent to terminate this Agreement, and pay to DIVYWEB all amounts due and owing under this Agreement. DIVYWEB reserves the right, in its sole and absolute discretion,
to immediately terminate this Agreement, without advance notice, if Customer materially breaches any provision of this Agreement. In no event will Customer be entitled to receive a refund of prepaid Service Fees, unless otherwise agreed to, in writing, by DIVYWEB.
3. NO LIABILITY UPON TERMINATION. Upon termination of this Agreement, whether by expiration or as otherwise permitted in this Agreement, DIVYWEB will not be liable to Customer in any way for reimbursement, compensation or alleged damages on account of, but not limited to, lost profits or sales (whether actual or anticipated), loss of goodwill, losses arising from investments, leases or commitments related to Customer's business, nor for any other reason or circumstance arising from said termination.
4. PRICING AND PAYMENT TERMS. Upon accepting this Agreement, Customer agrees to pay to DIVYWEB a one-time set-up fee of $0 for costs and expenses incurred in setting up the Services. In addition thereto, Customer agrees to prepay DIVYWEB for its provision of
the Services (the "Service Fees") according to the payment plan selected by the Customer, which plan will be selected at the time this Agreement is accepted.
Customer acknowledges and agrees that its full and timely payment of all fees is a condition to DIVYWEB'S performance under this Agreement. Invoices will be sent to Customer via mail and/or e-mail at the addresses set forth herein in accordance with Customer's selected payment plan. All Invoices shall be due upon receipt, and will be considered late if
payment is not received within ten (10) days of the due date. Payments received late will be subject to a late fee in the amount of ten percent (10%) per day for each day between the due date and the date on which payment is received. DIVYWEB will impose a $25.00 charge for any check that is returned for any reason by a financial institution. DIVYWEB reserves the right to charge the Customer any sales, use, excise, and gross receipts, or any other tax or fees now or imposed, directly or indirectly, by any governmental authority or agency with respect to the Services. Customer must notify DIVYWEB in writing of any disputed charges within 14 days of the date of the billing for such charges. If the Customer does not notify DIVYWEB within that time period, the Customer has waived any right to dispute such amounts, either directly or indirectly or as a set-off, or defense in any action
or efforts to collect amounts due to DIVYWEB.
DIVYWEB reserves the right to suspend, interrupt, or terminate Services on any account that is past due by more than thirty (30) calendar days, by disabling ssh/ftp access and/or disabling the connection to the server. In the event of disconnection, the Customer must pay DIVYWEB a reconnection fee of $50.00 as a condition of reactivation of the Services, in addition to full payment of the balance due on the account. Reactivation of services will only be performed during DIVYWEB regular business hours (Monday through Friday, 9:00 a.m. - 6:00 p.m. Mountain Standard Time). DIVYWEB may send all accounts that have not been paid in full to a collection agency. The Customer is responsible for paying all costs of collection, including, but not limited to, reasonable attorney.s fees and, where lawful, collection agency fees. All accounting issues should be addressed to DIVYWEB at sales@divyweb.com.
5. SERVICE INTERRUPTIONS. DIVYWEB shall not be liable for any failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of God, acts of any governmental
body, war, terrorism, insurrection, sabotage, embargo, fire, flood, blackout, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or delay in telecommunications or third party services, failure of third party software or inability to
obtain raw materials, supplies, or power used in or equipment needed for provision of the Services. Customer hereby acknowledges that from time to time, DIVYWEB may need to conduct routine tests, maintenance, upgrades or repair of its System, which may require an interruption of the Services. In all such circumstances, DIVYWEB shall exercise
commercially reasonable effort to give the Customer prior notice thereof; however, Customer acknowledges that there may be instances where it is not practicable or impossible for DIVYWEB to give advance notice of the disruption or interruption in Services; and, therefore, Customer agrees that DIVYWEB shall not be responsible or liable for any alleged damages related thereto or arising therefrom.
99% UPTIME GUARANTEE: Should DivyWeb's server uptime be less than 712 hours for any one given month (based on a 30 day month totaling 720 hours, in which the month shall always commence on the 1st day of the calendar month) in which the server uptime will be monitored by
DivyWeb; the Customer shall have the option to notify DivyWeb in writing to DivyWeb's notification address detailing the service interruptions totaling in excess of eight (8) hours for a given one month period as described above. If the server outage time frame can be verified by DivyWeb's server technicians than the Customer delivering the notification shall receive a free month of service. DivyWeb will add the extra month of service to the Customer's account at NO COST. There is a maximum limit of four (4) free months per calendar year through the 99% uptime guarantee. A Calendar year commences on January 1st and ends on December 31st. The 99% Uptime Guarantee is void should service interruptions be caused by acts of God, acts of any governmental body, war, terrorism, insurrection, sabotage, embargo, fire, flood, blackout, strike or other labor disturbance,
interruption of or delay in transportation, unavailability of or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.
6. CUSTOMER CONTENT AND RESPONSIBILITIES. The Customer is solely responsible for all of its web site content including, without limitation, any postings, files, intellectual property, data or transmissions using the Services (collectively, the "Customer Content"), including any
other use of the Services by the Customer, or by any person or entity the Customer permits to access the Services (a "User"). The Customer acknowledges and agrees that in the provision of the Services hereunder, DIVYWEB has absolutely no responsibility, either directly or
indirectly, for the Customer Content, and DIVYWEB accepts no responsibility for the Customer Content on or passing through its system. The Customer represents, warrants and covenants to DIVYWEB that neither Customer nor any User will use the Services for unlawful purposes (including, without limitation, infringement of copyright or trademark,
misappropriation of trade secrets, wire fraud, invasion of privacy, illegal pornography, obscenity, defamation, illegal gambling, illegal transportation or sale of tobacco, controlled substances or firearms), or to interfere with, or disrupt, other network users, network services, or network equipment. Disruptions include, without limitation, distribution
of unsolicited advertising or chain letters, repeated harassment of other network users, wrongly impersonating another user, falsifying one's network identity for improper or illegal purposes, sending unsolicited mass e-mailings, propagation of computer viruses, using the network to make unauthorized entry to any other machine accessible location, via the network, and distributing of tools designed for compromising security (i.e. including, but not limited to, password guessing programs, cracking tools or network probing tools). DIVYWEB may suspend or terminate the Services immediately, without prior notice to the Customer, if DIVYWEB believes, in good faith, that the Customer or a User is utilizing the Services for any such illegal or disruptive purpose. The Customer agrees that it has the duty to and hereby acknowledges that Customer shall and will indemnify, defend, protect and hold DIVYWEB, including, without limitation, its members, officers, employees, agents and attorneys (collectively, the "Indemnified Parties") harmless from and against any and all expenses, losses, costs, deficiencies, claims, liabilities, damages and punitive damages, including, without limitation, reasonable attorney and paralegal fees and expenses incurred or suffered by any of the Indemnified Parties arising out of, relating to, or resulting from the use or publication of any and all Customer Content in connection with the Services, or from any other breach of this Agreement by the Customer. In the event any such action shall be brought against an Indemnified Party and such Indemnified Party shall notify the Customer of the commencement thereof, the Customer shall assume the defense thereof, with counsel approved by such Indemnified Party, until the full and final resolution of said dispute, including the full and final settlement, payment and/or satisfaction of any and all costs, expenses, legal fees liabilities or damages arising therefrom.
To maintain the quality of our Services and to protect against unlawful infringement of copyrighted works, DIVYWEB prohibits the use of heavy bandwidth intensive web sites including, but not limited to, file-sharing programs, game servers, shared hosting of video and music files, dedicated servers and server co-location customers. Usage of any such web site shall only be allowed if DIVYWEB gives its prior written consent, which consent may be withheld in its sole and absolute discretion.
7. MAINTENANCE AND SUPPORT. DIVYWEB shall provide the Customer with basic maintenance and support for the Services including e-mail services through Horde, 24 hour notifications of downtime, 48 hour notification of maintenance to the server.
Exclusions. Maintenance and support services shall not include services for problems arising out of (a) tampering, modification, alteration, or addition to the Hardware or Software, which is undertaken by persons other than DIVYWEB or its authorized representatives; or (b) programs or hardware supplied by the Customer.
Passwords. Each DIVYWEB Customer is responsible for his or her passwords. Generally, secure passwords are between 6 and 8 characters long, contain letters of mixed case and non-letter characters, and cannot be found in whole or part, in normal or reverse order, in any
dictionary of words or names in any language. The Customer is responsible for changing his or her password regularly.
8. CONFIDENTIAL INFORMATION. Each party to this Agreement acknowledges that it or its employees may be exposed to or acquire information in connection with this Agreement which is proprietary or confidential to the other party, or to third parties to whom such party
has a duty of confidentiality. Confidential Information shall mean all information identified as being confidential by a party (the "Disclosing Party") to the party receiving such information (the "Receiving Party"), provided such notice is given in writing. If any confidential information is disclosed verbally, written notice of the confidentiality thereof must be given within fifteen (15) days for such information to be deemed confidential. Confidential Information shall remain the sole property of the Disclosing Party. Except for the specific rights granted by this Agreement, the Receiving Party shall not use any Confidential Information of Disclosing Party for its own benefit or for the benefit of others.
Except as set forth below, each party agrees to hold the Confidential Information of the other party in confidence and not to disclose such information to third parties or to use such information for any purpose whatsoever and to require each of its employees who may be exposed to such proprietary and confidential information of their obligations to keep such information confidential. Notwithstanding the above: (A) neither party is prohibited from (i) under confidence, using or disclosing Confidential Information to third parties as required to
perform its obligations under this Agreement, (ii) using or disclosing such Information externally in an aggregate or statistical composite form (provided that such Confidential Information is combined with other similar information and does not specifically identify the Confidential Information as specific to Customer), or (iii) in confidence, using or disclosing such Confidential Information internally or to any of its affiliated entities, or accountants, auditors or attorneys, or to investors or potential investors or other financing sources and
their advisors; and (B) Confidential Information shall not include (i) information that is now or subsequently becomes publicly available without breach of this Agreement by the receiving party, (ii) information made available to either party from other sources without any obligation of confidentiality, (iii) information that is already in either party's
possession not subject to an obligation of confidentiality, (iv) information that is independently developed by either party without reference to any confidential information, and (v) information that is required to be disclosed pursuant to any law or any rule or regulation
of a governmental agency or any order of a court or governmental agency, provided that the receiving party shall first notify the disclosing party of such disclosure requirement or order and uses reasonable efforts to obtain confidential treatment or a protective order.
Upon termination of this Agreement, the receiving party will at its option return to the disclosing party or destroy all Confidential Information of the disclosing party and all documents or media containing any such Confidential Information and any and all copies or extracts thereof, except that the receiving party may retain one copy of all such Confidential Information solely for archival legal purposes. Notwithstanding the foregoing, the Customer consents to DIVYWEB's disclosure of account information to credit reporting agencies,
credit bureaus, private credit reporting associations, or to other providers of communications services.
9. LIMITATION OF LIABILITY. DIVYWEB's liability to the Customer, whether directly or as a third party defendant, in any action or proceeding for any claim or liability arising out of or relating to this Agreement, or the provision of any Services (including, without
limitation, web hosting, maintenance and support), shall be limited to the amount of fees paid by the Customer to DIVYWEB under this Agreement within one year preceding the date the Customer contends its claim arose. In no event shall DIVYWEB or any of its members, managers, officers or employees be liable for any loss of data, loss of profits, cost of cover, or any other special, incidental, consequential, indirect or punitive damages, regardless of the alleged cause and regardless of the theory of liability. This limitation will apply even if DIVYWEB has been advised of, or is aware of, the possibility of such damages.
10. DISCLAIMER OF WARRANTIES. DIVYWEB specifically disclaims all implied warranties, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Except as otherwise provided in this Agreement, any written materials by DIVYWEB, or information on DIVYWEB's company web site, shall be for informational purposes only and, whether delivered or disseminated before or after the date of this Agreement, shall not create any express or implied warranties, guaranty of performance, or contractual obligations.
11. GOVERNING LAW AND CONSENT TO JURISDICTION. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, without regard to its conflict of laws provisions. Each party hereto irrevocably submits to the exclusive jurisdiction of the
Courts in the State of Arizona or in the United States District Court for the District of Arizona with respect to any suit, action or proceeding arising out of or relating to this Agreement. Each party hereto waives any right it may have to assert the doctrine of forum non conveniens or to object to venue to the extent any proceeding is brought in accordance with this provision. Nothing in this paragraph shall affect or limit any right to serve process in any manner permitted by law or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
12. MISCELLANEOUS.
i.Terms of Use and Privacy Policy. By entering this Agreement, Customer acknowledges that it has read and hereby agrees to DIVYWEB's Terms of Use and Privacy Policy, which are attached hereto as Exhibit A and are incorporated herein by this reference.
ii.Notices. Any notice hereunder shall be in writing and shall be given by registered or express mail, by reliable courier addressed to the addresses listed below, or by facsimile. Notice shall be deemed given upon the earlier of actual receipt or three (3) days after it has been sent, properly addressed and with postage prepaid. Either party may change its address for notice by means of written notice given to the other party.
Notices to DIVYWEB shall be sent to the following address:
DivyWeb, LLC
ATTN: Administrative Department
DivyWeb, L.L.C.
P.O. BOX 1581
Cortaro, Arizona 85652-1581
Notices to Customer shall be sent to your e-mail address via your DivyWeb Account.
iii.Assignment. The Customer may not assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be void and a default of this Agreement.
iv.Advertising. DIVYWEB may include the Customer's name and contact information in directories of DIVYWEB service subscribers for the purpose of promoting the use of the Services by the Customer generally. DIVYWEB will not use the Customer's name or other
identifying information in any other advertising or promotional materials, without the prior written consent of the Customer, which may not be unreasonably withheld.
v.Indemnification. The Customer shall defend, indemnify, and hold harmless DIVYWEB from and against all liabilities, judgments, claims, damages, settlements, expenses and costs (including reasonable attorneys fees and litigation expenses) arising out of or relating to any breach of this Agreement by the Customer. The Customer and DIVYWEB will promptly notify each other upon receipt of any third party claim or legal action arising out of or relating to this Agreement or Agreement.
vi.Entire Agreement and Waiver. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof, and neither this Agreement nor any term or provision herein may be amended or waived except by a written instrument signed, in the case of an amendment, by each party and, in the case of a waiver, by the party against whom the waiver is sought to be effective.
vii.Release of Information. DIVYWEB reserves the right to release the contact information of the Customer(s) involved in violations of system security to system administrators at other sites, in order to assist them in resolving security incidents. DIVYWEB will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers.
IN WITNESS WHEREOF AND BY OPTING TO CONTINUE WITH YOUR APPROVAL, the parties hereto have duly executed this Agreement as of the date first above written or as agreed on the Internet.
EXHIBIT .A. TERMS OF USE
ACCEPTABLE USE POLICY
DIVYWEB Acceptable Use Policy has been developed with the following
objectives:
Preserve the privacy and security of individual users.
Preserve the value of Internet resources as a conduit for free expression.
Encourage the responsible use of net resources and discourage practices
which degrade the usability of network resources and thus the value of
Internet services.
Ensure security, reliability and privacy of DIVYWEB's systems
and network, and the networks and systems of others.
Avoid situations that may cause DIVYWEB to incur civil liability.
We respect our Customers to use the Internet with courtesy and
responsibility and to be familiar with and to practice good Internet
etiquette. By adhering to the following policies, our Customers are
protecting the rights and privileges of all Internet users.
VIOLATION OF ANY OF THE FOLLOWING POLICIES IS STRICTLY PROHIBITED AND WILL RESULT IN IMMEDIATE TERMINATION OF ALL ACCOUNTS AND MAY INCUR FINANCIAL PENALTIES TO THE VIOLATOR. SYSTEM AND NETWORK USAGE AND SECURITY
1. Customers may not attempt to circumvent user authentication or security of any host, network, or account ("cracking"). This includes, but is not limited to, accessing data not intended for the Customer, password sniffing, security hole scanning, IP spoofing, logging into a server or account the Customer is not expressly authorized to access, or probing the security of other networks.
2. Customers may not attempt to interfere with service to any user, host, or network ("denial of service attacks"). This includes, but is not limited to, "flooding" of networks, deliberate attempts to overload a service, and attempts to "crash" a host.
3. Customers may not use any kind of program/script/command, or send messages of any kind, designed to interfere with a user's terminal session, via any means, locally or by the Internet.
4. Customers must safeguard their account passwords to prevent unauthorized access to their account.
5. Users who violate systems or network security may incur criminal or civil liability. DIVYWEB will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations.
To participate in the DivyWeb LLC (dba 24host7/com) “DivyWeb “ Affiliate Program, you must agree to the following:
This Affiliate Agreement ("Agreement") contains the complete terms and conditions between us, DivyWeb, and you, regarding your application to participate as an affiliate of DivyWeb ("Affiliate"), and the establishment of links from your website to our websites, DivyWeb.
BY SUBMITTING AN APPLICATION TO JOIN THE DIVYWEB AFFILIATE PROGRAM, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
DivyWeb's Affiliate Agreement Definitions "We", "Our", "Us", - " DivyWeb Hosting", (collectively, "DivyWeb")
"You", "Your" and "Affiliate(s)" - the business, individual or entity applying for participation in the DivyWeb 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 DivyWeb for sales resulting from such display.
"Affiliate Site" - the Affiliate's Internet site which displays DivyWeb Products and Services and/or promotions.
"DivyWeb Products and Services" - web hosting products and services that are available for purchase through DivyWeb.
"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 DivyWeb under and in accordance with this Agreement.
"Qualified Purchase" - a sale of DivyWeb Products and Services by DivyWeb, with a term of 12 months or longer, to a Referred Customer which meets the criteria set forth in Section 4 hereof.
"Referred Customer" - each new and unique customer referred from Affiliate through a Link (defined in Section 2 below) provided by or approved by Us, which meets the criteria set forth in Section 4 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.
Requirements:
Enrollment in the Affiliate Network To begin the enrollment process, you must submit a completed Affiliate Program Signup Form. The Signup Form can be found at https://www.24host7.com/cs/register.php. We will evaluate Your application in good faith and will notify You of Your acceptance or rejection in a timely manner. We may reject Your application if We determine (in Our sole discretion) that Your site is unsuitable for Our Affiliate Program for any reason, including, but not limited to, inclusion of content that is, in Our opinion, unlawful or otherwise does not meet our Customer Use Policy located at http://24host7.com/support/customer-use-policy. If We reject Your application, for any reason, You may not reapply to the DivyWeb Affiliate Program utilizing the same domain name/URL if that domain name/URL has already been rejected nor may you reapply using a different domain/URL name then add the previously rejected domain name/URL. DivyWeb, in its sole discretion, reserves the right to notify or to not notify any prospective affiliate of their rejection or removal from the DivyWeb Affiliate Program at any time.
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 DivyWeb 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 approved in writing by DivyWeb. All Affiliate Sites shall display such graphic and/or textual images prominently in relevant sections of their site. Any information with respect to Us that is going to be displayed on Your site must be provided by Us or approved by Us in writing in advance of any display. 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 coupons, refunds, credits or discounts, or other content concerning DivyWeb, unless We have given You prior written permission in each instance. 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.
Order Processing
We will process orders placed by Referred Customer who follow the Links from your website to DivyWeb. 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 DivyWeb 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 Determination
Under the Affiliate Program, you will be paid a Commission Fee for each Qualified Purchase by a Referred Customer that you refer to DivyWeb under and in accordance with the terms of this Agreement. Each Referred Customer and each Qualified Purchase must meet the following Criteria:
Each Referred Customer must be a new and unique visitor to DivyWeb and must register by completing and submitting the Registration Form using a valid and unique e-mail address.
Each Referred Customer must make a Qualified Purchase, and provide a valid payment for the purchased DivyWeb Products or Services. To generate a Commission Fee for you, each Referred Customer must be an active, qualified customer of DivyWeb 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 DivyWeb under this Agreement.
Each Referred Customer must remain in compliance with our Terms of Service, Customer 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 DivyWeb in its sole discretion) that is managed or participated in by the Affiliate, unless DivyWeb has provided its prior written permission.
DivyWeb 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 DivyWeb in its sole discretion, to determine the legitimacy and cancellation rates of Referred Customers. DivyWeb 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). DivyWeb 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 DivyWeb purchases. Where no subsequent Commission Fee is due and owing, DivyWeb will send Affiliate a bill for the balance of such refunded purchase upon termination of the program or termination of the Referred Customer. DivyWeb, in its sole discretion, reserves the right to withhold indefinitely any Commission Fee, and/or to reverse or reject any Commission Fee, for:
Any account/sale which has not been in an approved status in good standing as an account of DivyWeb 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.
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 DivyWeb has provided written permission.
Customers engaging in "Domain Speculation," which is determined by the identification of more than two (2) web hosting accounts in the same Referred Customer's name that have no content on their websites.
Commissions for any Referred Customer who is associated with any DivyWeb 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 DivyWeb by a specific Affiliate are determined to have an excessive cancellation rate (as determined by DivyWeb in its sole discretion), DivyWeb reserves the right to withhold or decline 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 DivyWeb or to violate the terms of this Agreement constitutes immediate grounds for DivyWeb to terminate this Agreement and will result in forfeiture of any Commission Fees due to you.
Commission Fees 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 or other period for which such Commission Fee is being calculated. Such Commission Fees will be processed approximately 15 to 30 days after the end of month or other period in which a Qualified Purchase was properly completed. DivyWeb will not reimburse nor compensate You for any commission or other consideration other than for Qualifying Purchases by a Referred Customer made in accordance with the terms hereof.
There is a $100.00 minimum threshold for 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.
You are responsible for informing DivyWeb 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 DivyWeb's ability to issue a valid Commission payment. Failure to provide the correct addresses may result in the forfeiture of any Commissions due to you. Commission Fees that are returned for invalid or insufficient address information or for other reasons may be forfeited as well.
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. Failure to do so may result in loss or forfeiture of your Commission Fee. You are responsible for informing DivyWeb 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: any of the countries listed in our Customer Use Policy prohibited by regulations of the U.S. Office of Foreign Assets Controls ("OFAC"), 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.
This list of countries is subject to change by DivyWeb at any time; You may choose to receive Commission Fees in the form of credit to your DivyWeb hosting account.
If you elect to receive Commission Fees in the form of account credit, a check will not be mailed. DivyWeb 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. https://www.paypal.com/cgi-bin/webscr?cmd=_display-approved-signup-countries-outside
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 affect.
DivyWeb, 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 DivyWeb'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 DivyWeb and Affiliate forfeits forever any rights to a potential claim.
Taxes/Address Changes
It is Your responsibility to provide DivyWeb with the tax and payment information required to issue a Commission Fee to You. If DivyWeb does not receive the necessary tax or payment information within 90 days of a Commission Fee being earned, DivyWeb will consider that Commission Fee to be forfeited by the Affiliate, and no payment will be issued.
Each Affiliate is required to submit a W8/W9 tax form before DivyWeb will issue any Commission Fees. You are responsible for the payment of all taxes related to the commissions you earn under this Agreement. In compliance with tax laws, DivyWeb will issue a Form 1099 to Affiliates whose earnings meet or exceed the applicable amount warranting the Form 1099.
You will be required to provide us with proper address, tax forms (including W8/W9 or other tax forms) or information within two (2) days of any request issued by DivyWeb to issue a Form 1099.
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 Commissions for that month to be sent to the revised address.
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.
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 DivyWeb 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.
DivyWeb Responsibilities
We will be responsible for providing all information necessary to allow You to make appropriate Links from Your site to Our site. DivyWeb 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. DivyWeb will be solely responsible for all order processing, including but not limited to payment processing, cancellations, refunds and related DivyWeb service. Any determination made by DivyWeb regarding the foregoing shall be binding absent manifest error.
Policies and Pricing
Referred Customers who buy DivyWeb Products and Services through the Affiliate network will be deemed to be Our Customers. Accordingly, all of Our rules, policies, and operating procedures concerning DivyWeb orders, DivyWeb service, and DivyWeb 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 DivyWeb Products and Services sold under the Affiliate Network in accordance with Our own pricing policies. Prices and availability of DivyWeb 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, You agree to both this Agreement and Our Terms of Service.
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 DivyWeb for each and every day when any bulk mailing will occur. DivyWeb, in its sole discretion, reserves the right to reject each and every e-mail mailing. Additionally, You may only send e-mails containing an DivyWeb affiliate link and or a message regarding DivyWeb or DivyWeb'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 DivyWeb information or information about the DivyWeb 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 DivyWeb in its sole discretion, the Affiliate relationship may be terminated.
Licenses and Use of the DivyWeb Logos and Trademarks.
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 DivyWeb 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 DivyWeb Products and Services on your site. 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 DivyWeb Affiliate Program.
You shall not make any specific use of any Licensed Materials for purposes other than selling DivyWeb Products and Services, without first submitting a sample to Us and obtaining the prior written consent of Your DivyWeb 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 DivyWeb, any hosted member of DivyWeb or any DivyWeb 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.
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 DivyWeb 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 DivyWeb in its sole discretion.
Any Affiliate who violates either this Agreement or DivyWeb's Terms and Conditions will immediately forfeit any right to any and all accrued Commissions Fees and will be removed from the DivyWeb Affiliate Program.
DivyWeb 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 DivyWeb'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.
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. DivyWeb, 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.
Disclaimers
We make no express or implied warranties or representations with respect to the Affiliate Program or any DivyWeb 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.
Relationship of Parties
You and DivyWeb 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.
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.
You are at least sixteen (18) 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.
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.
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.
Confidentiality
Each of the parties here to agrees that all information including, without limitation, the terms of this Agreement, business and financial information, DivyWeb 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.
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 DivyWeb relationships on terms that may differ from those contained in this agreement. we may also solicit DivyWeb 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 DivyWeb Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this agreement.
Governing Law
The laws of the United States and the State of Arizona 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 Maricopa County; Phoenix, Arizona 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.