Affiliate Program Agreement
This Agreement, made and entered by and between Protus, Inc. ("Protus" "we" or "our"),
a Canadian Corporation, and you, the affiliate ("you" or "Affiliate"), contains
the complete terms and conditions that apply to your participation in the MyFax
or my1voice Affiliate Program (the "Affiliate Program" or "Program").
1. Enrollment in the Program
You will submit a complete Affiliate Program application through either Commission
Junction or DirectTrack® in which you agree to abide by these terms and conditions.
After we carefully review your application, we will notify you of your acceptance
or rejection to the Program. We may reject your application (at our sole discretion)
if we feel your site is unsuitable or inconsistent with our mission.
We do not accept any libelous or defamatory sites, hacking sites, software copying/piracy,
illegal, hate, or racial hate sites, adult, pornographic, or sites that link to
adult oriented material whatsoever. If your site is accepted, Protus may terminate
this Agreement anytime thereafter if your site is determined (at our sole discretion)
to be unsuitable for the Program.
2. Promotion of Our Affiliate Program
Upon your acceptance as an Affiliate Site, we will make available to you a variety
of graphic and textual links (the "Links"), which, subject to the terms and conditions
hereof, you may display as often and in as many areas of your site as you desire.
The Links will serve to identify your site as a member of our Affiliate Network
and will establish a link from your site to ours.
Re: MyFax- Protus Agrees To:
- Pay Affiliate twelve dollars (US $12) per new MyFax account subscription that you
refer from your site.
- Pay Affiliate on a tiered compensation schedule for confirmed subscriptions. A confirmed
subscription is one in which the new MyFax account remains active for a minimum
of forty-five (45) days. An affiliate is to be paid using the following tiered schedule:
- fourteen dollars (US $14) per confirmed subscription when sending up to twenty-four
(24) subscriptions per month.
- twenty dollars (US $20) per confirmed subscription when sending between twenty-five
(25) and forty-nine (49) subscriptions per month.
- thirty dollars (US $30) per confirmed subscription when sending over fifty (50)
subscriptions per month.
- No fees shall be payable if the new account is fraudulent.
- Pay Affiliate on a monthly basis when your account has reached a minimum of twenty-five
dollars (US $25) in fees payable. Accounts with a balance of less than twenty-five
dollars (US $25) will roll over to the next month.
Re: my1voice- Protus Agrees To:
- Pay Affiliate fifteen dollars (US $15) per new my1voice account subscription that
you refer from your site.
- Pay Affiliate on a tiered compensation schedule for confirmed subscriptions. A confirmed
subscription is one in which the new account remains active for a minimum of forty-five
(45) days. An affiliate is to be paid using the following tiered schedule:
- thirty dollars (US $30) per confirmed subscription when sending up to twenty subscriptions
per month.
- thirty-six dollars (US $36) per confirmed subscription when sending greater than
twenty (20) subscriptions per month.
- No fees shall be payable if the new account is fraudulent.
- Pay Affiliate on a monthly basis when your account has reached a minimum of twenty-five
dollars (US $25) in fees payable. Accounts with a balance of less than twenty-five
dollars (US $25) will roll over to the next month.
Affiliate Agrees To:
- Place MyFax/my1voice Links on your site.
- Have sole responsibility for the development, operation, and maintenance of your
site and for all the materials that appear on your site.
- Ensure that all materials posted on your site are not illegal and do not infringe
on the rights of any person or entity of any kind. We disclaim all liability for
all materials on your site.
- Indemnify, defend, and hold Protus harmless from all claims, damages, and expenses
relating to the development, operation, and contents of your site.
3. Confidentiality
Except as otherwise provided in this Agreement or with the consent of the other
party hereto, each of the parties hereto agrees that all information, including,
without limitation, the terms of this Agreement, business and financial information,
customer and vendor lists, and pricing and sales information, concerning us or you,
respectively, or any of our Affiliates provided by or on behalf of any of them shall
remain strictly confidential and secret and shall not be utilized, directly or indirectly,
by such party for its own business purposes or for any other purpose except and
solely to the extent that any such information is generally known or available to
the public through a source or sources other than such party hereto or its affiliates.
4. Limitation of Liability
We will not be liable for indirect, special, or consequential damages, or any loss
of revenue, profits, or data, arising in connection with this Agreement or the Affiliate
Network, 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. You agree to indemnify and hold Protus and its agents harmless from any
and all claims, losses, damages, judgments, expenses and costs (including attorney
fees and expenses) arising out of this Affiliate Agreement or the Affiliate Network.
5. Limited License
We grant you a nonexclusive, nontransferable, revocable right to access our site
through the Links solely in accordance with the terms of this Agreement, for the
sole purpose of linking your site to our site, solely for the purpose of identifying
your site as a participant in the Program and assisting in increasing MyFax/my1voice
account registrations. You may not alter, modify, or change the Links in any way.
You are only entitled to use the Links to the extent that you are a member in good
standing of the MyFax/my1voice Affiliate Program. We may revoke your license anytime
by giving you written notice.
6. Disclaimers
We make no express or implied warranties or representations with respect to the
MyFax/my1voice websites or the MyFax/my1voice 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.
7. Termination
The terms of this Agreement will begin upon acceptance of your application. This
Agreement shall commence on the date of approval of your Affiliate Program application
and shall continue thereafter in full force and effect until terminated at any time
by either party by giving the other party written notice of termination. Upon termination
of this Agreement for any reason, you will immediately cease use of, and remove
from your site, all Links to our site, and all Protus, MyFax and my1voice trademarks,
trade dress, and logos, and all other materials provided by or on behalf of us to
you pursuant hereto or in connection with the Program.
8. Policies and Pricing
Customers who subscribe to MyFax/my1voice services through this Program will be
deemed to be a Protus customers. Accordingly, all of our rules, policies, and operating
procedures concerning customer orders, customer service, and MyFax/my1voice subscriptions
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 services
sold under this Program in accordance with our own pricing policies.
9. Modifications
We may modify any of the terms and conditions of this Agreement at any time. You
will be notified by email, and a change notice will be posted on our site. If the
modifications are unacceptable to you, your only recourse is to terminate this Agreement.
Your continued participation in this Affiliate Program after a change notice has
been posted will constitute binding acceptance of the change.
10. Independent Contractors
You and Protus 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.
11. 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 development, operation, and contents of your site do not infringe upon the copyright,
trademark of Protus, or any other right of any person or entity.
12. Independent Investigation
You acknowledge that you have read this Agreement and agree to all its terms and
conditions. You understand that we may at any time (directly or indirectly) solicit
customer referrals on terms that may differ from those contained in this Agreement
or operate Websites that are similar to or compete with your Website. You have independently
evaluated your desirability of participating in the MyFax/my1voice Affiliate Program
and are not relying on any representation, guarantee, or statement other than as
set forth in this Agreement.
13. Paid Search
You may not (i) bid on our trademarks, brand names or any variations or misspellings,
(ii) use our trademarks or brand names in the Display URL, or (iii) redirect to
any of our sites.
14. Privacy and your website
There must be a direct link from your website to our website. You may not in any
way mislead the visitor through such activities as copying or creating the impression
that your website is our website. You may not use any device, program, robot, Iframes
or hidden frames to cause a transaction to be made.
Your website will post a privacy policy that complies with all applicable laws and
regulations and your site will not collect or retain personally identifiable information
of MyFax/my1voice customers.
15. Fraud
If you commit fraud or falsify information in connection with the registration of
MyFax/my1voice accounts through the Links on your site, this Agreement will be terminated
immediately. In addition, you will be liable to Protus for any and all damages that
Protus suffers as a result of such actions. You will also be responsible for returning
to Prous all commissions received for fraudulent/falsified accounts, and we will
not hesitate to pursue all legal causes of action against you to the fullest extent
possible under the law.
16. Anti-Predatory Advertising Policy
Affiliates will be removed from the MyFax/my1voice Affiliate Program and forfeit
any pending commissions if they are utilizing or distributing software downloads
that potentially enable diversions of commission from other affiliates in our Program.
Predatory advertising is defined as any method that creates or overlays links or
banners on Websites, spawns browser windows, or any method invented to generate
traffic from a Website without that Website owner's expressed, written permission.
17. Email Compliance
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Affiliate agrees to comply with the requirements of the CAN-SPAM Act
of 2003 and all rules and regulations thereunder in its distribution of email that
contains messaging regarding MyFax/my1voice. More specifically, email that meets
this criteria:
- May only be sent to recipients who have expressly agreed directly with Affiliate,
in advance, to receive such communications from Affiliate;
- Must clearly and conspicuously identify that the message is an advertisement or
solicitation, unless recipient has given prior affirmative consent to receipt of
the message. Affirmative consent means that the recipient expressly consented to
receive the message either in response to a clear and conspicuous request for such
consent or at the recipient's own initiative;
- Must clearly and conspicuously notify the recipient of the opportunity to decline
to receive further commercial email from Affiliate;
- Must provide a valid physical postal address of Affiliate;
- Must provide a functioning return email address or other Internet-based mechanism,
clearly and conspicuously displayed, that a recipient may use to submit, in a manner
specified in the commercial email, a reply email or other Internet-based mechanism
a request not to receive future commercial email from Affiliate. The return address
or Internet-based mechanism must be capable of receiving such messages for at least
thirty (30) days after the transmission of the original message. Affiliate may not
send subsequent commercial emails more than ten (10) business days after the recipient's
request not to receive further emails has been received (unless there is a subsequent
affirmative consent by the recipient to receive such emails.) Once Affiliate receives
such a request, Affiliate may not sell, lease, exchange or otherwise transfer or
release the email address of the recipient;
- May not contain materially false or materially misleading header information, or
deceptive subject heading;
- May not contain sexually oriented material.
Affiliate may not initiate or assist in the transmission of commercial email using
an email address: (1) that was collected through automated means; from a third party
Website in violation of that third party's posted privacy policy, or (2) that was
generated through automated means by combining names, letters or numbers into numerous
permutations. Affiliate may not conduct fraudulent activities related to electronic
mail, including but not limited to the material falsification of header or transmission
information, the unauthorized use of someone else's computer to send bulk commercial
email, and the registration of an email account that materially falsifies the identity
of the actual registrant.
Upon Protus' request, Affiliate shall provide Protus with documentation demonstrating
that the recipients consented to receive the email at issue.
18. Public Statements
You agree that we may identify you or Your Site as an Affiliate of the Program as
long as you participate in the Program. We may make this identification orally,
in writing or electronically.
19. Reservation of Rights
Protus may terminate this Agreement at any time if your site is determined (at our
sole discretion) to be unsuitable for the Program, even if your site has not changed
since the time that your Affiliate Program application was accepted. Protus also
reserves the right to monitor Affiliate sites at any time to determine whether they
are in compliance with this Agreement.
20. Governing Law
This Agreement will be governed by the laws of the Province of Ontario and the federal
laws of Canada applicable therein, without reference to rules governing choice of
laws.
All terms and conditions of the MyFax/my1voice Affiliate Agreement remain in full
force and effect.