Affiliate Terms & Conditions:
Set forth below are the complete Terms and Conditions that apply to an individual's or entity's participation in the MIDCOM Data Technologies Affiliate Program("Program"), and these Terms and Conditions constitute a binding legal agreement between MIDCOM Data Technologies, Inc (MIDCOM Data Technologies and MIDCOM Data) and the Affiliate. As used in this Agreement, "we" means MIDCOM Data Technologies, Inc. (MIDCOM Data) a Michigan corporation doing business as MIDCOM Data Technologies, Inc. and "you" means the Program applicant.
Enrollment in our Affiliate Program
To begin the enrollment process, you simply submit a complete Program application via our site. We will promptly evaluate your application and web site in good faith and will notify you of your acceptance or rejection. We may reject your application if we determine for any reason in our sole discretion that your site is unsuitable for the Program. Unsuitable sites include those that:
- promote sexually explicit materials
- promote violence
- promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- promote illegal activities
- otherwise violate intellectual property rights
- are "doorway" pages or free-for-all link pages (link farms)
- utilize "cloaking" technology or other software penalized by major software engines
- are generally offensive
REGISTRATION
To sign up as an Affiliate of MIDCOM Data Technologies, Inc. and to use our marketing materials as an Affiliate Partner, you must be at least 18 (eighteen) years of age, and supply a valid tax-id, which may be your social security number for individuals, or a federal tax-id for corporations or entities.
If we reject your application, you may reapply at any time once the reason for rejection has been remedied. You should also note that if we accept your application, your site must continue to be suitable as determined in our sole discretion.
1. Definitions.
"You" refers to the person or entity executing this Agreement with intent to become a MIDCOM Data Technologies affiliate.
"Affiliate Lead" means a person or entity that clicks on one or more Exclusive MIDCOM Data Technologies URLs via the Affiliate Web Site and identified by a cookie unique to you.
"Affiliate Web Site" means your Web Site identified by URL on our Program sign-up page. You may promote MIDCOM Data Technologies through more than one Affiliate Web Site, provided you notify us of each such site's URL so that we can create a tracking link for it, and provided you do not use "doorway" pages or FFA (free for all) "link farm" pages.
"Commission" means the percentage of revenue to which you are entitled on sales of Products to Affiliate Leads.
"Commission Period" means a calendar month.
"Exclusive MIDCOM Data Technologies URLs" mean the URLs we will provide to you as described in Section 2(c) below. The Exclusive MIDCOM Data Technologies URLs will enable us to track End-user Affiliate Leads that occur via the Exclusive MIDCOM Data Technologies URLs from the Affiliate Web Site.
"Products" mean MIDCOM Data Technologies, Inc. service repair products.
2. Marketing.
(a) Affiliate's Promotion. You agree to market and promote MIDCOM Data Products through the Affiliate Web Site. Such promotion shall include at a minimum the placement of the Exclusive MIDCOM Data Technologies URLs on appropriate pages on Affiliate's Web Site. The Exclusive MIDCOM Data Technologies URLs shall not be hidden, meaning more than one mouse-click away from the Affiliate Web Site's home page or landing page. You agree not to use unsolicited (spam) emails or other prohibited forms of unsolicited marketing, nor any marketing technique or technology that is prohibited or penalized by search engines. Any text or graphics describing or relating to MIDCOM Data Technologies contained in any email, newsletter or other communication issued by you must be approved by us in advance.
LINK PLACEMENT
As an Affiliate of the MIDCOM Data Technologies Affiliate Program, you may place and remove Merchant Links on Your site and in acceptable locations.
- You place our merchants banners anywhere on your site as you see fit, or within non-spam emails.
- Adult, Hate, or other related sites are not allowed
- Any page that contains MIDCOM Data Technologies, Inc. links, banners, or code must be written in English.
- You cannot SPAM. You cannot SPAM. You cannot SPAM. We will terminate your account on the first offense of SPAMMING. Do not send email to lists or groups that you do not have permission to send to. We cannot stress this enough, we WILL terminate your account on the first offense.
- NOT ALLOWED: All other uses of banners or links, such as newsgroups, chat rooms, ICQ, message boards, banner networks, hit farms, counters, or guestbooks etc. are NOT allowed.
- NOT ALLOWED: Any placement of creative in a "Desktop" advertising scheme. This includes any and all 3rd party advertising platforms that use a desktop application to display ads in any form.
NOT ALLOWED: Any display of a merchant window that isn't the result of a direct click by the end-user.
EMAIL CONTACT
MIDCOM Data Technologies, Inc. reserves the right to send e-mail to You for the purposes of informing you of applicable changes or additions to MIDCOM Data related products and services.
(b) Duty to Promote. You agree to actively market MIDCOM Data Technologies during the term of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, during any period of time that you cease to market the Products, remove the MIDCOM Data Technologies information or the MIDCOM Data Technologies Exclusive URLs from the Affiliate Web Site, or hide them, you shall not be entitled to Commissions. In addition, we may consider it conclusive proof that you have ceased to market MIDCOM Data Technologies if the number of new MIDCOM Data Technologies sales to Affiliate Leads, or the number of MIDCOM Data Technologies members who were Affiliate Leads, should drop for three (3) consecutive months. Once we have determined that you are not actively promoting MIDCOM Data, we will attempt to notify you of this fact and request that you resume marketing efforts. If you do not respond or for any reason do not resume promoting MIDCOM Data , we may at our sole election declare this Agreement canceled by your act or inaction or, or in lieu of declaring this Agreement canceled, we may cease paying any Commission to you for the period MIDCOM Data Technologies is not marketed.
(c) Marketing Information. We will provide you with the Exclusive MIDCOM Data Technologies URLs containing tracking links unique to you for placement only on the Affiliate Web Site. Persons who click on the Exclusive MIDCOM Data Technologies URLs will receive a unique cookie identifying them as your Affiliate Leads. We may also provide you with certain information and MIDCOM Data Technologies trademarks and logos to use to promote the Products through the Affiliate Web Site. You agree that we may publicly identify you as a MIDCOM Data Technologies affiliate.
(d) Limited Trademark License. Each party ("Licensee") agrees that the other ("Licensor") may use Licensee's appropriate trademarks and logos in order to perform the activities identified hereunder, and the Licensor grants the Licensee a limited, non-exclusive, nontransferable royalty-free license for the life of this Agreement to use the Licensor's trademarks and logos that are applicable to, and solely in relation to performing such activities consistent with the terms of this Agreement. The Licensee agrees to comply with the reasonable trademark/logo usage guidelines that may be provided by Licensor from time to time.
(e) Ownership. You and we each shall retain the sole and exclusive ownership of our respective trademarks, copyrights, logos and any other materials that might be provided to or used by the other party under this Agreement.
3. Commissions.
(a) Commissions to You. In consideration for your marketing and promotion of the Products, we agree to pay you Commissions on the service products purchased by your Affiliate Leads. Commissions are payable only upon actual payment to MIDCOM Data that we receive during the applicable Commission Period. Charge backs and other adjustments generally will be debited in the month they occur, but we may instead debit them in a subsequent month. We will only pay Commissions on sales to Affiliate Leads who click on Exclusive MIDCOM Data Technologies URLs and receive a MIDCOM Data Technologies cookie. We do not track persons who sign up by other means.
Past customers or customers of MIDCOM Data Technologies, Inc. that are currently being serviced by MIDCOM Data are not eligible for commission payments. Should such a lead be submitted by an Affiliate, MIDCOM Data will notify You within a few days that this is the case and the account is not eligible for commissions. This is typically a very, rare situation.
Unless otherwise agreed by us, you will receive a Commission as outlined on a previous page in this document of the actual sales to and then payment by the end-user account to MIDCOM Data for MIDCOM Data’s service products. Subject to Section 2(b) above, Commissions on recurring end-user accounts will be paid by MIDCOM Data Technologies only for the first 12 months following the date of the first service product being sold to the registered Affiliates end-user account.
(b) Reporting and Payments. We will provide you with full-time access to a MIDCOM Data Technologies affiliate webpage reflecting sales to your Affiliate Leads, Commissions due you and chargebacks or refunds, if any. Access to this webpage will be by exclusive by Affiliate Code and password, and we will not provide the Affiliate Code and password to anyone except you. We will not provide any other reports to you other than such webpage. A Commission is considered due for Products billed and then paid for by the end-user within the month, and Commissions are paid monthly, within 15 days of the month's end. We may make adjustments in any Commission Period for transactions or events occurring in a prior Commission Period, even if payment has already been made for the prior Commission Period.
(c) Taxes. Each party is responsible for any tax on it, its income and operations.
4. Term and Termination.
(a) Effective Date. The Effective Date of this Agreement shall be the date we accept your application to be a MIDCOM Data Technologies affiliate.
(b) Term. Unless terminated earlier as set forth in this Agreement, the term of this Agreement shall begin on the Effective Date and shall continue for one (1) year ("Initial Term"). Thereafter, this Agreement shall automatically renew for an additional twelve (12) month term ("Renewal Term"), unless either party gives the other party notice of cancellation at least 30 days' notice prior to the end of the Initial Term or the then current Renewal Term. If you cancel this Agreement, you forfeit any right to Commissions after the effective date of the termination.
(c) Termination. In addition to our right to cancel this Agreement or to suspend Commission payments to you as provided in Section 2(b) above, either party may terminate this Agreement at any time upon fifteen (15) days' prior written notice if the other party is in material breach of any provision of this Agreement, if such breach is not cured within such fifteen (15) day period. Either party may also terminate this Agreement at any time with or without cause upon at least thirty (30) days' prior written notice. Notice may be sent by fax, email, postal mail or courier to the above addresses and is effective when received. You should also note that if, after you are approved as a MIDCOM Data Technologies affiliate, the Affiliate Web Site is determined (in our sole discretion) to be unsuitable for the Program, we may terminate this Agreement immediately upon email notice to you.
(d) Effect of Termination/Expiration. Upon termination of this Agreement, you should remove the Exclusive MIDCOM Data Technologies URLs and any MIDCOM Data Technologies information from the Affiliate Web Site. Sections 2(e), 3(c), 5, 6, 7, 8 and 9 shall survive any termination or expiration of this Agreement.
(e) Conflict of Interest. Affiliate agrees that they are not employed by or affiliated with the organization that
they are recommending for MIDCOM Data’s service products. If this is the case, then no commission will be paid to that person as MIDCOM Data believes that this is a conflict of interest with that organization. Also, in no circumstances will Affiliate pay a fee or “kickback” to an employee of an organization in which a lead was given to MIDCOM Data.
5. Warranty Disclaimer.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXCLUDED
6. Indemnities.
(a) Mutual Indemnity. Each Party ("Indemnifying Party") agrees to defend against and indemnify and hold the other Party ("Indemnified Party"), its officers, employees or agents, harmless from any third party claim, to the extent the third party claim alleges U.S. patent or trademark or copyright infringement or misappropriation of trade secrets with respect to (i) the Indemnifying Party's materials and trademarks provided hereunder, and/or (ii) Indemnifying Party's web site ("Claim"). The Indemnifying Party will pay the Indemnified Party's costs and expenses (including court costs and reasonable attorney's fees) incurred, and liability and damages awarded against the Indemnified Party, from such Claim.
(b) Indemnity Conditions. The indemnification obligations are subject to the following conditions: (1) the Indemnified Party gives prompt notice to the Indemnifying Party of the potential liability or claim; (2) the Indemnified Party promptly grants to the Indemnifying Party control over its defense and settlement; and (3) the Indemnified Party, at the Indemnifying Party's expense, provides reasonable and timely assistance in defense of the claim. The Indemnified Party may, at its option and expense, participate in the defense and settlement of any claim or liability; however, if the Indemnified Party agrees to a settlement of such claim or liability without the written consent of the Indemnifying Party, the Indemnifying Party shall have no obligation to indemnify the Indemnified Party.
7. Limitation of Liability.
EXCEPT FOR ANY THIRD PARTY CLAIMS FOR WHICH MIDCOM Data Technologies, Inc. IS TO INDEMNIFY AS SET FORTH IN SECTION 6, IN NO EVENT SHALL MIDCOM DATA TECHNOLOGIES, INC. BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT. MIDCOM DATA 'S MAXIMUM LIABILITY TO AFFILIATE ARISING FROM OR RELATING TO THIRD-PARTY CLAIMS MADE UNDER THIS AGREEMENT SHALL BE LIMITED TO $1,000.00 IN THE AGGREGATE, NO MATTER WHEN INCURRED BY AFFILIATE.
FORCE MAJEURE
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes or any other cause which is beyond the reasonable control of such party.
We shall not be liable for damages whatsoever resulting to any person based upon data or information published or available on www.MidcomData.com or upon the use of any tool, software or information made available on or by means of the MIDCOM Data Technologies website(s).
8. Confidentiality.
(a) Confidential Information. Each party acknowledges that, from time to time, it may be exposed to certain information of the other party that the other party considers and treats as confidential and proprietary information and that is not generally known to the public ("Confidential Information"). Any such Confidential Information shall be conspicuously marked or otherwise identified as "confidential" or "proprietary" at the time of disclosure, or which, under the circumstances surrounding disclosure, ought to be treated as confidential. The receiving party agrees that it will take appropriate steps to protect such Confidential Information from unauthorized disclosure, that it will not disclose such information to any third party except its independent contractors and agents who are under an obligation of confidentiality with a reasonable need to know, and that it will not use any Confidential Information (other than as authorized by this Agreement) without the prior written consent of the disclosing party. The obligations with respect to Confidential Information shall continue for three (3) years from the date of initial disclosure under this Agreement.
(b) Exceptions. Information shall not be deemed Confidential Information hereunder if such information:
(i) is known to the recipient at the time of disclosure;
(ii) hereafter becomes known (independently of disclosure by the providing party) to the recipient directly or indirectly from a source other than one having an obligation of confidentiality to the providing party;
(iii) becomes publicly available or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the recipient; or
(iv) was independently developed by the recipient without use of or access to the providing party's Confidential Information.
9. General.
(a) You shall not sell, transfer, or assign this Agreement, by operation of law or otherwise, without our prior written consent. Any act in derogation of the foregoing sentence shall be null and void.
(b) This Agreement shall benefit and be binding upon the parties to this Agreement and their respective successors and permitted assigns.
(c) The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a continuing waiver of such right, nor a waiver of any other right under this Agreement.
(d) If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.
(e) This Agreement will be governed by and construed in accordance with the laws of the State of Michigan, excluding its conflict of laws principles, and the parties consent to personal jurisdiction of and venue in the state and Federal courts located in and serving Oakland County, Michigan.
(f) This Agreement, and the Program form and all other information submitted by you in connection with becoming a MIDCOM Data Technologies affiliate, which is incorporated in this Agreement by reference, represents the complete agreement and understanding of the parties with respect to its subject matter, and supersedes any other agreement or understanding, written or oral.
(g) This Agreement may be modified only through a written instrument signed by both parties.
(h) The parties expressly understand and agree that each party is an independent contractor in the performance of this Agreement, and is solely responsible for all of its costs and expenses arising in connection therewith. Neither party is the agent of the other and neither party may bind the other.
END OF AGREEMENT.