Partner Program Agreement
Last updated: August 22, 2012 at 9:41 am
PLEASE READ THIS FTP TODAY PARTNER PROGRAM AGREEMENT CAREFULLY. BY COMPLETING THE APPLICATION PROCESS AND CLICKING THE “I Agree” BUTTON, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
This Partner Program Agreement (the “Agreement”) between you (“Partner”) and Horan Data Services LLC (“FTP Today”) governs the terms and conditions to FTP Today’s Partner program (the “Partner Program”). This Agreement includes, and incorporates by this reference, the policies and guidelines referenced below. FTP Today reserves the right to change or revise the terms and conditions of this Agreement at any time by posting any changes or a revised Agreement on this Web site <http://www.ftptoday.com> (the “FTP Today Site”). FTP Today will alert you that changes or revisions have been made by indicating on the top of this Agreement the date it was last revised. The changed or revised Agreement will be effective immediately after it is posted on the FTP Today Site. Your participation in the Partner Program following the posting of any such changes or of a revised Agreement will constitute your acceptance of any such changes or revisions. FTP Today encourages you to review this Agreement whenever you visit the FTP Today Site to make sure that you understand the terms of the services provided to you. This Agreement does not alter in any way the terms or conditions of any other written agreement you may have with FTP Today for other products or services. If you do not agree to this Agreement (including any referenced policies or guidelines), please immediately terminate your participation in the Partner Program. If you would like to print this Agreement, please click the print button on your browser toolbar. Together, FTP Today and Partner are herein referred to as the “Parties” and each individually as a “Party”.
WHEREAS, FTP Today develops and markets technology and software for the purpose of providing secure online file transfer; WHEREAS, Partner desires to promote such technology for a commission; and
WHEREAS, FTP Today would like to compensate Partner pursuant to the terms and conditions of this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the following:
Terms and Conditions
As used this Agreement, the capitalized terms set forth below shall have the meanings so ascribed to them in this Section 2:
1.1. “Agreement” means this Partner Referral Agreement.
1.2. “Commission” means that percentage identified on https://www.ftptoday.com/referral-partners of license fees or other revenue actually received (i.e., not including a percentage of uncollected receives or unrealized income) by FTP Today following the Customer’s purchase of the Product, additional bank processing and merchant fees, and costs associated with chargebacks, fraudulent transactions, penalties, credits, and taxes.
1.3. “Customer” means any person or entity who purchases or licenses the Product from FTP Today via the Target URL.
1.4. “Effective Date” means the date Partner clicks “Submit Application” while registering for the Partner Program.
1.5. “Links” mean hyperlink devices from the Referral Site to the Target URL, including banner advertisements, button links, text links, icons, or other devices identifying FTP Today and/or the Product.
1.6. “Product” means the software and related technology for the purpose of secure online file transfer developed and marketed by FTP Today, and available at the FTP Today Site.
1.7. “Referral Site” means that certain Internet world wide web site controlled by Partner and identified by Partner when completing the registration process. For purposes of this Agreement, an e-mail sent by Partner to its Users that contains banner advertisements, button links, text links, icons, or other devices identifying FTP Today and/or the Product pursuant to this Agreement is a Referral Site.
1.8. “FTP Today Site” means that certain Internet world wide web site for FTP Today, the home page of which is accessible on the Internet at the uniform resource locator <http:/www.ftptoday.com>.
1.9. “FTP Today Marks” means trademarks or service marks identifying FTP Today, the Product, or the source or quality of the Product; or the use of the words “FTP Today” or the FTP Today logo on the Internet or otherwise; or any name, word, symbol, device, or combination thereof confusingly similar to the foregoing.
1.10. “Target URL” means the uniform resource locator provided by FTP Today to Partner, in connection with the Links at which Partner will direct potential Customers for the purpose of learning about or subscribing to the Product.
1.11. “Users” mean those Internet end users who access the Referral Site and may be potential Customers.
1.12. “Term” means one (1) year beginning on the Effective Date.
2.1. Authorized Partner. In strict accordance with this Agreement, FTP Today authorizes Partner to link to the FTP Today Site from a Referral Site, and specifically the Target URL, for the purpose of referring Customers to FTP Today in exchange for a Commission as provided herein.
2.2. Links. FTP Today will make Links available to Partner which Partner may display on the Referral Site only and cause to be available to Users, provided Partner abides by the terms and conditions of this Agreement. Partner may also create its own Links, provided, however, that FTP Today approves of the same before Partner propagates such Link on the Referral Site. Partner shall not, and shall not permit any third party to, modify or alter any Link without FTP Today’s written consent. Partner shall cause each Link to direct Users by way of hyperlink to the Target URL. Partner will not be entitled to any Commission relating to license fees generated by Customers hyperlinked to a URL other than the Target URL. FTP Today grants Partner the right and license to display the Links on the Referral Site. Notwithstanding the foregoing, FTP Today shall have the right to require Partner to remove any Link at any time for any reason or no reason. By way of example, and not limitation, in the event the Referral Site contains offensive content, FTP Today may demand, and Partner shall ensure, that Links to the Target URL or FTP Today Site from the Referral Site be removed immediately.
2.3. Prohibited Marketing. Partner may not under any circumstance send unsolicited bulk email or post USENET advertisements regarding the FTP Today products.
2.4. FTP Today Marks. Partner may display the FTP Today Marks on the Referral Site to the extent such FTP Today Marks are embodied in the Links provided or approved by FTP Today. Partner shall not use any FTP Today Marks in any other way or in any other medium.
3. ORDER FULFILLMENT AND COMMISSION
3.2. Order Processing and Fulfillment. FTP Today will undertake good faith efforts to process orders placed by Customers for the Product. FTP Today reserves the right, in its sole discretion, to reject orders for the Product, including orders from Customers residing or attempting to sign-up in particular geographic locations, or orders that do not comply with certain requirements which FTP Today may establish at any time. As between FTP Today and Partner, all aspects of order processing and fulfillment, including order entry, customer service, shipping, cancellations, returns and payment processing will be handled by FTP Today. FTP Today will track the amount of sales generated by Customers directed to the Target URL by Partner, and will make this information available to Partner through reasonable means (including electronically) in FTP Today’s discretion.
3.3. Partner’s Commissions. Partner shall be entitled to a Commission for each purchase of a subscription to the Product by a Customer which is introduced to the Product by Partner directing the Customer to the Target URL. SHOULD A PARTNER PURCHASE A SUBSCRIPTION AND THEREFORE ALSO BECOME A CUSTOMER, THERE SHALL BE NO COMMISSION PAID TO THE PARTNER BASED ON THEIR OWN SUBSCRIPTION; COMMISSIONS SHALL ONLY BE PAID ON THIRD PARTY CUSTOMER REFERRALS.
3.4. Payment and Reporting. FTP Today shall remit Commissions to Partner approximately each calendar month (as such payments are received by FTP Today, and not before). FTP Today may also deliver to Partner contemporaneous with such payment a report stating sales of the Product to Customers during such reporting period. Partner will only receive payment when earned commission exceeds one hundred dollars ($100). Payments to Partners within the United States shall be made by check. If located outside of the United States, Partner must provide a PayPal account to which FTP Today shall make payments electronically when due.
4. REPRESENTATIONS AND WARRANTIES
4.1. FTP Today Representations and Warranties. FTP Today represents, warrants, and guarantees that it has the right to enter into this Agreement and grant the rights to Partner provided herein.
4.2. Partner’s Representations and Warranties. Partner represents, warrants, and guarantees that at all times during the Term, (ii) Partner will operate the Referral Site in accordance with all applicable laws, rules, and regulations, including (a) rules relating to privacy and the collection of personally identifiable information, and (b) laws regulating unsolicited commercial e-mail or any state or federal statute, now in existence or hereafter enacted; (iii) the Referral Site will not contain any unlawful, defamatory, obscene, offensive or harassing content; (iv) Partner will not modify or alter any Links with FTP Today’s approval; and (v) Partner will not use any FTP Today Marks in a manner contrary to any guidelines provided by FTP Today, any way that disparages FTP Today or the Product, or casts any negative light on FTP Today or the Product, or in any way not provided for herein.
5. MISCELLANEOUS TERMS
5.1. Reservation of Rights. Nothing in this Agreement shall be construed to grant Partner any right, interest in or license to the Product. FTP Today retains all rights in and to the Product. Except as otherwise set forth herein, FTP Today retains all right and interest in the FTP Today Marks. The only rights granted to Partner by FTP Today are the rights expressly granted herein. FTP Today does not grant any implied rights to Partner.
5.2. Term and Termination. This Agreement shall commence on the Effective Date and remain effective until the end of the Term. FTP Today may terminate the Agreement for any reason at anytime. Upon any termination, Partner shall immediately cease using any Links and shall remove all Links from the Referral Site. Partner shall be entitled to any Commissions relating to Customers generated by FTP Today prior to termination of this Agreement. Notwithstanding the foregoing, FTP Today may retain any Commissions due Partner for reasonably anticipated chargebacks, credits, or other anticipated charges or liability reasonably attributable to Partner.
5.3. Relationship of the Parties. Notwithstanding the use of the term “Partner” or anything to the contrary herein, this Agreement does not create, and will not be interpreted or construed as creating or evidencing, any partnership, franchise, or agency between the Parties or as imposing any partnership, franchise or agency obligation or liability upon either Party. Under no circumstances shall Partner look to FTP Today as its employer, nor as a partner, agent, or principal. The parties are independent contractors, with the sole relationship between them being that provided for in this Agreement (i.e., Partner refers business to FTP Today in exchange for a Commission).
5.4. Partner’s Indemnity of FTP Today. Partner shall defend, indemnify, and hold harmless FTP Today and its members, managers, officers, directors, shareholders, employees, agents, contractors, affiliates and attorneys (“FTP Today Related Parties”) from and against any and all claims of third parties, including, but not limited to all loss, liability, claims, demands, damages, cost or expense, causes of action, suits, proceedings, judgments, awards, executions and liens, including reasonable attorneys’ fees (which attorneys shall be hired at the sole discretion of FTP Today) and costs (including claims without legal merit or brought in bad faith), relating to this Agreement, including the display of any Links, Partner’s marketing or promotion of the Links and/or FTP Today services, and the operation of the Referral Site. By way of example, and not limitation, Partner shall indemnify FTP Today in the event FTP Today is threatened with a lawsuit or other claim based upon the content of the Referral Site, the transmission or propagation of Links (via e-mail or otherwise), or the alleged act or omission of Partner. If FTP Today is threatened by claims or suit of a third party, FTP Today may seek written assurances from the Partner concerning the Partner’s obligation to indemnify FTP Today. Failure to provide such written assurances is a material breach of this Agreement. Failure of Partner to fully indemnify FTP Today in a timely manner will result in termination of Partner’s Agreement with FTP Today; and such termination shall in no way prejudice FTP Today’s right to seek the indemnity by way of litigation or otherwise.
5.5. FTP TODAY’S DISCLAIMER; LIMITATION OF LIABILITY. FTP TODAY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, RELATING TO THE AGREEMENT, THE LINKS, FTP TODAY’S SALES OF THE PRODUCT, OR IN ANY OTHER WAY RELATED TO THE PRODUCTS OR SERVICES PROVIDED BY FTP TODAY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. ADDITIONALLY, FTP TODAY AND FTP TODAY RELATED PARTIES SHALL NOT BE LIABLE WHATSOEVER FOR ANY LOSSES OR DAMAGES THAT PARTNER MAY INCUR AS A RESULT OF A CUSTOMER’S USE OF THE PRODUCT, OR FOR LACK OF FITNESS FOR A PARTICULAR PURPOSE THEREOF. FINALLY, FTP TODAY SHALL NOT BE LIABLE WHATSOEVER FOR ANY OF PARTNER’S LOST PROFITS, EVEN IF FTP TODAY HAS BEEN ADVISED OF THE POTENTIAL FOR SUCH DAMAGES, AND EVEN IF FTP TODAY MAY FORESEE SUCH POSSIBLE DAMAGES. PARTNER’S SOLE REMEDY FOR FTP TODAY’S BREACH OF THIS AGREEMENT SHALL BE TO TERMINATE ITS AGREEMENT WITH FTP TODAY AND COLLECT ANY THEN OUTSTANDING COMMISSIONS OWED.
5.6. Notices. Notices to FTP Today or Partner shall be delivered by registered or certified official mail of a country, postage prepaid, or by reputable commercial courier service (e.g., U.S. Express Mail or Federal Express) in the manner of quickest delivery (i.e., overnight delivery, if possible), to the respective addresses identified on the first page of this Agreement, however, FTP Today may terminate this Agreement by providing e-mail notice to Partner. Partner may change its address by written notice to FTP Today, and FTP Today may change its address by posting a different address at https://www.ftptoday.com/contact/, in which case notices to FTP Today shall be delivered to that address. Notices delivered by reputable commercial courier service in the manner of quickest delivery shall be deemed delivered three (3) business days following dispatch. Notices mailed by registered or certified official mail of a country shall be deemed delivered seven (7) business days after mailing.
5.7. Governing Law/Forum Selection. This Agreement is governed by the laws of the State of Ohio USA, applicable to contracts made and to be performed solely in the State of Ohio, without regard to conflict of laws principles. Partner hereby consents to the exclusive personal jurisdiction of the courts in Cincinnati, Hamilton County, Ohio, USA for any and all claims or disputes arising out of, to enforce, construe, or otherwise relating to this Agreement. The exclusive venue for such action shall be the United States District Court for the Western District of Ohio in downtown Cincinnati. If such dispute does not fall within the jurisdiction of the United States federal courts, then the exclusive venue for such action shall be the Superior Court of the state of Ohio in Cincinnati, Hamilton County, Ohio USA. Partner waives any right to object to venue or jurisdiction based on inconvenient forum or for any other reason, and Partner waives any statutory or other right pursuant to the laws of the jurisdiction in which Partner resides to have a case relating to this Agreement adjudicated or resolved in that jurisdiction.
5.8. Assignment/Delegation. Partner shall not assign any of its rights, nor delegate any obligations, hereunder. Any purported assignment of rights or delegation of duties by Partner shall be null and void and of no force or effect. 5.9. No Third Party Beneficiaries. This Agreement is not intended to and shall not be construed to provide any rights, remedies or benefits to or for any person or entity not a Party to this Agreement, including, but not limited to, Customers or Users.
5.10. Severability. If any provision of this Agreement is held invalid, unenforceable or void, the remainder of the Agreement shall not be affected thereby and shall continue in full force and effect.
5.11. Full Integration; Amendments in Writing. This Agreement constitutes the entire agreement between Partner and FTP Today relating to the matters set forth herein. No prior or contemporaneous written, oral, and electronic representation, negotiation, or agreement form a part of this Agreement, and this Agreement supersedes all prior written, oral, or electronic agreements between Partner and FTP Today relating to this Agreement. No amendment, modification, or supplement to this Agreement shall be effective unless it is in writing and signed by an authorized representative of FTP Today.
5.12. Counterparts. The Parties may execute this Agreement in two or more counterparts, which shall, in the aggregate, be signed by each party. Each counterpart shall be deemed an original instrument as against any party who has signed it.
I (Partner) HAVE READ AND UNDERSTAND THE FOREGOING AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITION. MY AGREEMENT IS HEREBY AFFIRMED BY ENTERING MY NAME AS A “DIGITAL SIGNATURE” ON THE PARTNER APPLICATION FORM.
HORAN DATA SERVICES LLC, d.b.a. FTP TODAY
11711 Princeton Pike, Suite 341-309
Cincinnati, OH 45246-2500