This Superb Internet Affiliate Agreement ("Agreement") is effective as of the day the Affiliate clicks the "I accept" icon at the end of this agreement, and is between Superb Internet Corporation ("Superb Internet") and the Affiliate.
1.1. Before becoming an Affiliate, Affiliate must complete and submit to Superb Internet the Affiliate Application (https://mycp.superb.net/order/affiliates/signup.php). Superb Internet may review the Affiliate Application. If Superb Internet accepts the Affiliate Application, Superb Internet will create an affiliate account for Affiliate. The Effective Date of this Agreement is when Superb Internet creates an affiliate account for Affiliate.
1.2. By submitting the Affiliate Application, Affiliate acknowledges its understanding of, and consent to, the following:
1.2.1. Affiliate will not be Superb Internet’s only affiliate;
1.2.2. other affiliates may receive more favorable terms from Superb Internet than Affiliate does;
1.2.3. other affiliates will compete with Affiliate;
1.2.4. Affiliate may not make any representations to Potential Customers about the products and services offered by Superb Internet, unless Superb Internet authorizes Affiliate in writing to do so;
1.2.5. Superb Internet will provide its products and services directly to Customers, and Affiliate will have no contractual relationship with them; and
1.2.6. as long as it does not violate this Agreement, Superb Internet may compete with Affiliate.
2. Superb Internet’s Rights and Responsibilities
2.1. Upon submission and approval of the Affiliate application, Superb Internet will provide Affiliate certain information, including marketing information and links, to enable Affiliate to identify itself as an affiliate of Superb Internet. These links will point to various pages on the Superb Internet website. While Superb Internet will use reasonable efforts to inform Affiliate of changes to these links, it is Affiliate’s obligation to establish and maintain the links.
2.2. During the Term of this Affiliate Agreement, Superb Internet will, at its discretion, provide Affiliate with marketing materials that Affiliate may use to promote the Superb Internet Services (Marketing Materials). Superb Internet grants to Affiliate a non-exclusive, revocable, non-transferable, non-sublicensable right and license to use the Marketing Materials for the sole purpose of advertising, promotions and/or marketing Superb Internet services. Affiliate agrees to use the Marketing Materials only in accordance with Superb Internet guidelines and in the exact form that Superb Internet provides to Affiliate. While Superb Internet will use reasonable efforts to create Marketing Materials with effective tracking codes, Superb Internet is not responsible for any Affiliate Fees should those tracking codes fail to operate correctly, or should a particular user modify their browser settings in such a way that the tracking codes are not transmitted to Superb Internet. Affiliate agrees not to use any of the Marketing Materials, or make any representations, warranties or other statements concerning Superb Internet or the services, or any of Superb Internet’s other products, services or the company, except as set out in this Affiliate Agreement. Superb Internet retains all right, title and interest in and to the Marketing Materials. Affiliate agrees to make no filing or claim that contravenes Superb Internet’s sole ownership interest in the Marketing Materials.
2.4. Superb Internet retains the sole and exclusive right to determine with whom it will do business: nothing in this Agreement will be considered as restricting Superb Internet‘s right to refuse to do business with any End User. Should Superb Internet refuse to do business with an End User, Affiliate will not receive a Fee for that End User.
2.5. Superb Internet may modify any of the terms and conditions contained in this Agreement, at any time and at the sole discretion of Superb Internet, by posting a change notice or a new agreement on this site (or by email). Modifications may include changes in the scope of available referral fees, fee schedules, payment procedures and Program rules. Any such changes are effective upon posting. Affiliate may terminate this Agreement pursuant to its terms within ten days of posting, and will not become bound by any such change.
3. Affiliate’s Rights and Responsibilities
3.1. Affiliate will ensure that it at all times seeks to ensure that Affiliate promotes and represents Superb Internet in a fashion that will refer the maximum possible customers to Superb Internet, and maintains a sales organization and facilities to promote sales of Superb Internet services. Affiliate may only use coupons, sales, or discounts to promote or sell the services as approved by Superb. Affiliate may not use rebates or refunds to promote or sell the services.
3.2. Affiliate will not discriminate against Superb Internet in soliciting customers to purchase services.
3.3. Affiliate will be responsible for all statements, representations and warranties Affiliate makes about the services, and agree to indemnify Superb Internet and hold it harmless from the consequences of any such statements Affiliate makes. Affiliate may not make any claims about Superb Internet or Superb Internet Services that are not approved by and provided to Affiliate by Superb Internet.
3.4. Affiliate will cooperate with Superb Internet in its efforts to comply with federal, state and local laws regarding the End Users.
3.5. Superb Internet’s SPAM policy applies to Affiliate’s marketing of the services. It is found here: [http://www.superb.net/about/legal/terms-of-service.php#aup] within the Superb Internet Terms of Service. Affiliate may not market the services in violation of Superb Internet’s SPAM policy.
3.6. Marketing of the services may be restricted by federal and state law. It is Affiliate’s obligation to determine whether its marketing methods comply with those laws. Affiliates are strictly prohibited from engaging in activities that would be subject to enforcement action by the Federal Trade Commission.
4. License of Certain Marketing Information
During the Term of this Agreement, and only so long as this Agreement is in effect, Affiliate is permitted to use the name, logo, trademarks, and other marks of Superb Internet (collectively, the "Marks") for all proper purposes in the marketing of the services to potential customers. Affiliate’s use of such Marks shall be in accordance with Superb Internet’s policies, and not in contravention of its continued rights in the Marks.
5.1. The amount owing to the Affiliate for any period will be a one-time fee or a recurring fee, depending on the plan the Affiliate signed up for (one-time payouts or recurring payouts for the lifetime of the referred End User accounts), as set out in http://www.superb.net/partners/affiliates ("Fee"). The Fee is subject to change at any time, however any such change will not affect End Users for which a Fee is owed prior to the date of such change. Superb Internet will calculate the total Fee owing from Superb Internet to the Affiliate 90 days from the date the End User becomes Superb Internet’s customer as set out in the Policies for one time payouts. Recurring payouts will be paid out starting from 90 days after the End User signed up for the lifetime of the End User account, calculated each month as long as the End User account remains in good standing. Superb Internet will pay the Affiliate the total sum of all Fees owing on a monthly basis, when the minimum payout amounts are met as set out in section 5.2 herein. Should the End User not remain a customer prior to calculation or payment of the Fee, or should the End User account not be in good standing at the Fee calculation date, no Fee will be owed.
5.2. Superb Internet will pay out the Fees to the Affiliate on a monthly basis (paid once per month on or about the same date each month, as may change from time to time without notice) when the total Fee payout is equal to or greater than the following limits, based on the Affiliate’s requested payout method:
18.104.22.168. $75 if paid by PayPal (no service fee, automatic)
22.214.171.124. $250 if paid by ACH or USD check ($5 service fee for each payment that the Affiliate agrees to by signing up for payment by ACH or USD check, automatic)
126.96.36.199. $500 if paid by any other means, including, but not limited to, wire transfer or Western Union; such exceptional means payments are not automatic and the Affiliate must request the exceptional means payment; such a request may be made by the Affiliate at any time when a minimum amount of $500 in Fees is reached or exceeded; the service fee for such payments shall depend on the payment type, destination and amount, but in no event be less than $25. Affiliate agrees to the service fee for such an exceptional payment by requesting it.
5.3. The Affiliate must choose one-time payouts or recurring pay-outs at sign-up. After that time, the Affiliate account may not be changed to another payout calculation method. An Affiliate may not have two or more Affiliate accounts open simultaneously.
5.4. If the Affiliate account is terminated for any reason and by either party, or for no reason by the Affiliate, no further Fees shall accrue as of that date and any Fee balance on the account at the time of termination will be paid out, if it meets the minimal amount and other conditions for payout set in herein.
5.5. The fact that that an Affiliate is eligible to be paid a Fee does not necessarily mean that it will be paid a Fee: all of the criteria set out in this Agreement, and in Superb Internet’s agreements with End Users, must be satisfied prior to payment of the Fee.
5.6. Superb Internet reserves full right to determine the total Fee due Affiliate, and Affiliate irrevocably consents to Superb Internet's determination of the total Fee. Calculation of the Fee is based on sales of Superb Internet services sold only to a third party. Affiliate's own accounts, or those created by affiliated third parties, will not fall within the criteria to earn a Fee. To become an End User, the following criteria must be satisfied:
5.6.1. The potential customer accesses Superb Internet's site through the use of a link recognized by Superb Internet as set out herein;
5.6.2. Before the expiration of the cookie, the potential customer becomes an End User pursuant to the Policies;
5.6.3. Full payment has been remitted by End User and cleared and settled into Superb Internet's account;
5.6.4. Remains an End User prior to payment of the Fee; and
5.6.5. The End User account is in good standing on the Fee calculation date.
5.7. Superb Internet will pay the Fee, subject to the criteria set out herein, via the pay-out method elected by the Affiliate, in U.S. dollars, made payable to the entity listed as the Affiliate in the Affiliate Application, to the address set out in the Affiliate Application (only applies to pay-out means where applicable). Superb Internet has no responsibility for misdirected checks, wire transfers, expired or not picked up Western Union transfers, or for incorrect information provided by Affiliate in the Affiliate Application, which has not been corrected.
5.8. Payment of the Fee set out herein, paid as set out in this Agreement, is Superb Internet’s only financial obligation to Affiliate. Superb Internet is not obligated to pay any taxes, fees or other charges on Fees, and Affiliate agrees to indemnify Superb Internet from payment of those charges. If US based, Affiliate is required to submit a W8/W9 tax form prior to payment of the Fees. No Fees will be paid unless a form is received within 15 days of Superb Internet’s request. Affiliate is not responsible for taxes based on Superb Internet’s income.
6. Term and Termination
6.1. The term of this Agreement shall begin on the date Superb Internet accepts the Affiliate Application (Term), and shall continue until one party provides the other with written notice of the party’s termination of it. Five days following a party’s notice of termination, the Agreement shall Terminate (Termination Date). Affiliate will not earn fees between the date of notice and the Termination Date.
6.2. Upon termination, Affiliate shall cease promoting the services, stop any marketing activities, and disable any websites or pages linked to those operated by Superb Internet.
6.3. On the Termination Date, Superb Internet shall calculate the amount of Fees due Affiliate up to that point, and shall pay Affiliate as set out herein (Final Payment), if it meets the minimum payout amount and other conditions for payout set out herein. Following the Termination Date, Superb Internet shall have no obligation to pay any additional Fees to Affiliate, even if Affiliate’s potential customers become End Users based on Affiliate’s efforts. The Final Payment shall represent Superb Internet’s sole and exclusive obligation to Affiliate upon Termination.
7. Warranties, Limitations of Liability and Indemnification
7.1. The parties agree that each has the power and authority to enter into this Agreement and to perform the obligations set out in it.
7.2. Affiliate warrants (i) that Affiliate’s execution, delivery and performance of this Agreement will not violate any provision of law, a rule, or any regulation to which Affiliate is subject, or any provision of a contract or other agreement to which Affiliate is bound; (ii) that no consents are required for Affiliate to enter into this Agreement; (iii) that Affiliate will comply with all applicable laws and regulations in performing Affiliate’s obligations under this Agreement, including, but not limited to the use of the Internet (including email) to offer and market products and services (including the products and services offered by Superb Internet); and (iv) that there is not now pending, or anticipated, any claim that would prevent Affiliate from fully performing its obligations hereunder.
7.3. Other than as set out in paragraph 7.1, Superb Internet makes no warranties, and any implied warranties are expressly disclaimed.
7.4. SUPERB INTERNET DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUPERB INTERNET DOES NOT WARRANT THAT ITS TECHNOLOGY OR SERVICES WILL MEET ALL OF THE CUSTOMER’S REQUIREMENTS OR BE MARKETABLE, OR THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. NO EMPLOYEE OR AGENT IS AUTHORIZED TO MAKE ANY WARRANTY ON SUPERB INTERNET’S BEHALF.
7.5. AFFILIATE AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AFFILIATE WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD SUPERB INTERNET OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY AFFILIATE OR ANY OTHER THIRD PARTY. AFFILIATE AGREES THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR UNDER ANY OTHER LEGAL THEORY AND APPLY EVEN IF SUPERB INTERNET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SUPERB INTERNET BE LIABLE TO AFFILIATE IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIMS OF LIABILITY UNDER THIS AGREEMENT FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY SUPERB INTERNET TO AFFILIATE DURING THE 3 MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; AFFILIATE AGREES THAT IN THOSE JURISDICTIONS SUPERB INTERNET’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
8.1. Each party shall indemnify and hold the other harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against the indemnitee, so far as it is based on the indemnitor’s representations and warranties set out in this Agreement. This paragraph will be conditioned on the indemnitee notifying the indemnitor promptly in writing of the claim and giving the indemnitor full authority, information, and assistance for the defense and settlement thereof. The indemnitee shall have the right to participate in the defense of the claim at indemnitee’s expense. The indemnitor agrees not to settle a claim without indemnitee’s approval if such a settlement contains an admission of liability or fault that could reasonably be attributed to the indemnitee.
9.1. Affiliate may not sell, assign, or transfer any of its rights or obligations under this Agreement without Superb Internet’s prior written consent, which may be withheld for any, or no, reason.
9.2. Superb Internet recognizes that Affiliate may have the need to utilize subcontractor(s) or supplementary provider(s) in performance of this Agreement. Subcontractor(s) or supplementary provider(s) may be utilized only upon prior written approval of Superb Internet, which shall not be unreasonably withheld. The cost of any subcontractor(s) and/or supplementary provider(s) employed or retained by Affiliate shall be the sole responsibility of Affiliate and shall, in no instance, be in addition to the fees hereunder. Upon Superb Internet’s request, Affiliate shall provide a detailed report to Superb Internet of the Services rendered by such subcontractor(s) or supplementary provider(s) pursuant to this Agreement. Subcontractors shall be bound by all the provisions of this Agreement [and any applicable Schedules] as if they were Affiliate’s employees and shall execute all required documents requested by Superb Internet.
9.3. Choice of Law, Jurisdiction and Venue. All disputes shall be brought before the U.S. District Court for the District of Hawaii located in Honolulu, Hawaii (District Court). The parties agree that this court shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this contract or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the court set out above, and agree that they shall not contest notice from that court. State law issues concerning construction, interpretation and performance of this contract shall be governed by the substantive law of the State of Hawaii, excluding its choice of law rules. The United Nations Convention on Contracts for International Sale of Goods shall not apply
9.4. All notices to Affiliate will be sent to the e-mail address set out in the Affiliate Application, to the attention of the signatory. Notices will be effective upon being sent.
9.5. The following paragraphs shall survive the expiration or termination of this Agreement: 3.3, 7.4, 7.5, 8.1, 9.3, 9.4, and 9.5.