SYNC.COM AFFILIATE AGREEMENT
Thank you for becoming a Sync.com Affiliate. This Agreement governs the relationship between you and Sync.com and is binding upon your acceptance of this Agreement, so please read it carefully.
A few definitions:
• “We,” “us,” “our,” and “Sync.com” all refer to Sync.com, Inc.
• “You,” “your,” “applicant,” and “Affiliate” all refer to you.
• “Agreement” refers to this Affiliate Agreement.
• “Program” means the Sync.com Affiliate Program as described in this agreement and at www.sync.com.
• “Affiliate Site” means your website on which you enable visitors to subscribe to Sync.com’s services.
• “Subscription” means a paid subscription to the Sync.com services.
• “Services” means the services offered by Sync.com.
• “Site” means the Sync.com website.
• “Visitor” means someone who clicks on a link on the Affiliate Site that redirects the person to the Site, who then purchases a Subscription before leaving the Sync.com Site, and who installs their first device via Sync’s desktop client.
The Terms of the Agreement
1. Agreement: You agree to participate in the Program in exchange for payment according to the Commission Schedule posted at www.sync.com. Your participation and payment is subject to all the terms and conditions of this Agreement. Your acceptance of this Agreement is part of your application to participate in the Program. We may refuse to approve your application to participate in the Program for any reason, including if you engage in any of the unlawful or illegal activities listed in section 3 (Ineligible Referrals) or section 13 (Grounds for Termination). This Agreement is binding and enforceable only if we accept your application.
2. Performance: As an Affiliate, you agree to use and promote graphics, such as banners or text links, that we provide to you. These graphics promote Sync’s Services and link to Sync’s Site. You must fully cooperate with Sync to maintain and establish such links. You may not alter these banners and text links without our prior written consent.
3. Play Fair: Sync expects our Affiliates to act with integrity and honesty in promoting the Services. Sync will not pay commissions to any Affiliate who generates Subscriptions through a Web site that actually or allegedly infringes the third party intellectual property rights of others, through misleading advertisements or incentives, through any other Affiliate programs, through personal or word-of-mouth referral, or through any conduct that Sync considers in its sole discretion to be suspicious. If you generate Subscriptions in any of these ways, Sync may terminate this Agreement without compensating you.
4. Artificial Commission Inflation: Sync does not pay Affiliate commissions for the following types of Subscriptions:
• renewal customer subscriptions;
• duplicate customer subscriptions, including but not limited to customer subscribers who cancel a subscription and re-subscribe under the same or a new user name within 3 (three) months of canceling their previous subscription; or
• any other new customer subscribers who are the result of re-subscription activity that Sync considers in its sole discretion to be suspicious.
5. Commission Schedule: We will pay you the commission rates as set forth at www.sync.com. These rates may change from time to time, so check the rates often. You will be paid at the commission rate in effect at the time your Visitor subscribes.
6. Payment Terms: Sync will pay commissions on the 20th of each month, or the next business day if it falls on a weekend or holiday. You need to have earned at least US $50.00 of commission and there is a withholding period of 55 days from the date of the sale. If either of us terminates this Agreement, we agree to pay you any commissions we owe you at that time 55 days after the last transaction on which commission is owed. If any Visitor from your Web site applies for a refund, charge-back or cancellation, we will reduce the commission we pay to you by the amount refunded, charged-back or cancelled, regardless of when such refund, charge-back or cancellation is requested.
7. Tracking Commissions: You can track sales you made and commissions you earned using the on-line, real-time account manager provided to you. If there is any dispute about sales commissions, the on-line account manager will automatically be deemed to be correct and binding.
8. Stand-Alone Program: This Affiliate program is a stand-alone program, and cannot be combined with any other incentive or Affiliate program that Sync directly or indirectly provides or endorses. In any dispute regarding the application of a Commission Schedule between this Agreement and any other Sync.com agreement, this Agreement and Commission Schedule governs.
9. Last-Click Rule: If there is a dispute between you and another Affiliate about which of you generated a referral click, then the last Affiliate to register a click-through before the sale will automatically be deemed entitled to the relevant commission, subject to the other terms of this Agreement.
10. Updated Information: You must keep us informed of your current, correct, and accurate contact information. This includes your full legal name, proper postal address, telephone number, and e-mail address.
11. Marketing License: You grant us a non-exclusive license to use your name, title, logos and trademarks (collectively the “Affiliate Trademarks”) to advertise, market, promote, and publicize our Affiliate relationship with you. We are not required to advertise, market, promote, or publicize this relationship. You represent and warrant that 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 the Affiliate Trademarks in the manner contemplated by this Agreement.
12. Customers: Your Visitors (those who subscribe to the Services through a link from your Web site) automatically become Sync’s customers for use of the Services, and remain Sync’s customers during their Subscription, even if this Agreement expires or is terminated.
13. Advertising: If you buy advertising through on-line search engines and bids on keyword search terms, you agree not to bid on any keyword search terms incorporating any Sync.com trademark or any words that are confusingly similar to our trademarks.
Affiliate Site Integrity and Indemnity: You are responsible for ensuring that materials posted on the Affiliate Site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), are not libelous, and are not otherwise illegal. You must have express permission to use any copyrighted or other proprietary material, whether a writing, an image, or any other copyrightable work. We are not responsible for any violation of any laws or infringement of any third-party rights by anything on your Web site, other than materials provided directly by us. You agree to indemnify and hold harmless Sync from any and all claims that may be made against Sync arising from any materials posted on your Web site.
14. Grounds for Termination: We can terminate you from the Program, in our sole discretion, you ever do any of the following:
i) promote illegal activities or incorporate any materials that infringe, or assist others to infringe, on any copyright, trademark or other intellectual property rights (collectively “Content Restrictions”).
ii) promote the Services with unsolicited or mass e-mail (SPAM) including sending or promoting e-mails with false, altered or anonymous sender or Internet protocol (IP) information, or false or misleading subjects or taglines;
iii) promote the Services using adware, spyware, parasiteware, or new “ware” that an end user has not authorized be put on her computer;
iv) promote the Services through links suggestive of or including alleged pornography, inflammatory content, or any content that Sync, in its sole discretion, considers inflammatory, outrageous, offensive, illegal subject to the laws of any sovereign jurisdiction, or otherwise an administrative burden;
v) promote the Services through unsolicited or mass facsimile transmission or conventional mailing, including sending or promoting such transmissions or mailings with false, altered or anonymous sender information, or false or misleading language;
vi) promote the Services through browser pop-up ad windows or any other means not authorized by Sync; or
vii) promote the Services by e-mail or any other means that suggests that your communications or promotions are coming directly from Sync, or are an official SYNC.COM communication.
15. Term, Termination, and Expiry (General): The term of this Agreement will begin when we notify you that we have accepted your Application and you are now part of the Affiliate Program. Unless this Agreement is terminated otherwise according to any other section of this Agreement, it will have an initial term of 12 months from when the term began. The Agreement will renew for successive 12-month periods after this initial term under the same terms and conditions unless either party provides the other party with written notice of non-renewal.
Either party can terminate this Agreement by providing written notice. You should provide written notice to Affiliates@SYNC.COM.com. We will provide written notice to your last known e-mail address as you provided to Sync. Any notice of termination will take effect 10 days after it is sent.
Your adherence to this Agreement is very important. If you breach this Agreement in any way, we may, in our discretion, immediately terminate this Agreement and cease any responsibility for any obligations then owing, without any compensation to you. If you breach any term of this Agreement, we may permanently withhold any commissions owing to you, regardless of whether those commissions were legitimately earned otherwise. If your breach harms Sync in any way, we may pursue all remedies against you for that breach.
16. LIMITATION OF LIABILITY: WE WILL NOT BE LIABLE TO YOU, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INCIDENTAL, EXEMPLARY, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, BUSINESS, GOODWILL OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE SYNC.COM AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The maximum liability of SYNC.COM under this Agreement is the value of any commissions owing to Affiliate without interest and subject to the 60 (sixty) day withholding period. You explicitly acknowledge and accept this limited liability, and you expressly forego and waive any other remedy against Sync. You further agree to not hold us liable for any indirect, special or consequential damages regardless of foreseeability or cause.
17. DISCLAIMERS: WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SYNC.COM AFFILIATE PROGRAM, THE SYNC.COM SITE, OR ANY SUBSCRIPTIONS, FREE-TRIALS OR OTHER ITEMS SOLD THROUGH THE SYNC.COM AFFILIATE PROGRAM (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE), AND ANY SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF THE SYNC.COM SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
18. Confidentiality: We may disclose to you certain information as a result of your participation as part of the Program that we consider to be confidential (“Confidential Information”). For purposes of this Agreement, the term “Confidential Information” shall include, but not be limited to:
(a) the terms of this Agreement and any modifications to the terms and provisions of this Agreement made specifically for the Affiliate Site and not generally available to other members of the Sync.com Affiliate Program;
(b) our website, business and financial information;
(c) information relating to our customers and vendors;
(d) pricing and sales information for the Services and the Affiliate Program; and
(e) any other information that we designate as confidential during the Term of this Agreement.
You must maintain the secrecy of any Confidential Information, and you may not disclose any Confidential Information to any third party. You shall use the same standard of care that you apply to protect your own confidential information, which in any event, shall be no less than a reasonable standard of care. You may not use the Confidential Information, directly or indirectly, for any purpose other than to perform your obligations hereunder.
19. Publicity: If you want to refer to us in any publicity, you must first show us the material that you intend to publish or distribute, directly or indirectly, and receive our written permission. If you do not provide us with the materials and receive our written permission, then you may not publish or distribute any publicity that refers to us.
20. Indemnity: You will indemnify, defend and hold us and our officers, directors, employees, agents, representatives, parent, subsidiaries, Affiliates and related companies, successors and permitted assigns, harmless from and against any and all losses, liabilities, damages, costs or expenses, including reasonable legal fees and expert witness fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties, arising from or relating to third party claims, demands, damages, and expenses (collectively, “Claims”) relating to (a) the Affiliate Site, including, without limitation, the development, operation, maintenance, and contents of the Affiliate Site, (b) any defamatory or libelous acts or acts violating any right of publicity or privacy with respect to the Affiliate Site, (c) infringement or misappropriation of any third party intellectual property rights arising from (i) the Affiliate Site, (ii) use of the Affiliate Trademarks or any other material provided by you or (iii) your or your agent’s failure to use the Licensed Materials in accordance with the terms of this Agreement; or (d) breach of any representation or warranty made by you herein.
21. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE SYNC.COM AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
22. Assignment: You may not assign this Agreement without our express written consent. We may assign this Agreement 10 days after notifying you in writing by email.
23. Modification: We may modify the terms of this Agreement as it applies to you 10 days after notifying you in writing by email.
24. Representation and Warranties: You hereby represent and warrant to us that the individual who is executing this Agreement is authorized to do so on your behalf. You also represent and warrant that you have the legal capacity and power to execute, deliver, and perform pursuant to this Agreement without the approval or consent of any other person. You represent and warrant that your execution of and performance under this Agreement does not violate or constitute a default under the (a) provision of any law, rule, regulation, order, judgement or decree to which you are subject or which is binding upon you, or (b) the terms of any other agreement, document or instrument applicable to you or binding upon you.
25. No Warranties of Fitness: Sync makes no warranty or representation regarding the fitness of this Affiliate program for any particular purpose.
26. Dispute Resolution: As much as Sync values cooperation and harmony, we recognize that a dispute might arise between us and an Affiliate. Except for disputes for which injunctive or other equitable relief is sought to prevent the unauthorized use or disclosure of proprietary materials or information, you and we agree to use the following procedures to resolve any dispute arising out of or in connection with this Agreement. First, the party wishing to raise the dispute should make a written request of the other party to invoke this dispute resolution provision of the Agreement. Promptly after the written request of either party, each of us shall designate a representative to meet in person or by telephone to attempt in good faith to resolve any dispute. If the representatives do not resolve the dispute within 10 days of the written request, then an executive officer of each party shall meet in person or by telephone to review and attempt to resolve the dispute in good faith.
The executive officers shall have 10 days to resolve the dispute. If the dispute is still unresolved at that time, the dispute shall be submitted to binding arbitration in Ontario, Canada in accordance with the then-prevailing rules of the International Commercial Arbitration Act.
27. Proprietary Rights: Upon acceptance into the Program, Sync grants you a non-exclusive, non-transferrable licence to copy onto and display, from your Web site, links, promotional materials, and SYNC.COM trademarks that we provide. All links, promotional materials, and SYNC.COM trademarks will at all times remain under our control, review, and ownership; you may use them only according to the terms and standards that we prescribe in this Agreement and as otherwise stated by us to you either orally or in writing. You do not accrue any ownership rights in any of these links, promotional materials, or trademarks.
28. Force Majeure: Things beyond our control can happen. Sync is not liable for any delay or failure in performance of any term under this Agreement resulting from things that our beyond our control. These include, for example, acts of nature, Internet failures, Denial of Service attacks, fire, flood, power loss, virus attacks, malicious third party attacks, riots, insurrections, civil or military disturbance, equipment failure, strikes, labour disputes, government actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, terrorist attacks in any form, or loss of or fluctuations in heat, light or air conditioning.
29. Entire Agreement: This Agreement represents the entire agreement between us and you and supersedes all prior agreements and communications of the parties, oral or written. This Agreement can be amended only in a writing signed by both parties.
30. No Waiver: Our failure to enforce your strict performance of any provision of this Agreement does not waive our right to subsequently enforce that provision or any other provision of this Agreement.
31. Choice of Law: This Agreement is governed by the laws of Ontario, Canada. You agree to submit to the jurisdiction of the arbitral tribunals and courts of Ontario, Canada for any and all disputes in connection with this Agreement. Any challenge to the choice of law of this Agreement must be made in Ontario, Canada, unless we expressly consent otherwise in writing.
32. No Class Actions: You may resolve disputes with Sync on your behalf only. Neither You nor Sync will seek to have disputes heard as a class action, private attorney general action, or other proceeding in which either party acts or proposes to act in a representative capacity.
33. Relationship of Parties: By entering into this Agreement, you become Sync’s independent contractor only. Nothing in this Agreement creates any partnership, agency, franchise or employment relationship between Sync and you. Your authority is strictly limited to conduct as prescribed in this Agreement. You have no authority to make or accept any offers or representations on behalf of Sync, and you may not make any statements or representations in any manner that otherwise contradicts this provision. You is solely responsible for all local, national, and international taxation consequences in respect of this Agreement.
This file was last modified on May 08, 2015
