Trimorph Affiliate Program
PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE USING TRIMORPH. VISITING OR REGISTRATION WITH TRIMORPH INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER FOR OR PARTICIPATE IN ANY TRIMORPH AFFILIATE PROGRAMS.
This is a contract between you (the customer) and us (Trimorph). It describes how we will work together and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese” but we have tried to make it as readable as possible. These terms are so important though that we cannot have you participate in our Affiliate Program unless you agree to them. By participating in any of our Affiliate Program, you are agreeing to these terms.
We may periodically update these terms and we will let you know when we do via e-mail or on your notification portal.
This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.
REPRESENTATION AND WARRANTIES
- You are of sound mind, legal age and legal competence.
- You are duly organized and validly existing under the applicable laws of the jurisdiction of its organization.
- The information provided by you at any time thereafter is true, accurate and complete.
- You represent and warrant that you will comply with all federal, state, and local laws and certificates required acquiring the services to be performed under this Agreement.
- All the conditions and warranties of this Agreement embody the entire agreement between you and us (“User Agreement”).
COMPLIANCE WITH PROGRAM POLICIES
You will comply with the terms and conditions of this Agreement at all times, including the Program Policies, which are incorporated herein by reference. The Program Policies may include requirements that you must complete in order to qualify for a certain Affiliate Program.
ENROLLMENT IN A AFFILIATE PROGRAM
Enrollment in the Program requires application through the affiliate signup form on the Trimorph website (the Website). We review all affiliate signups before we decide if an application will be accepted or not. Your application may be rejected if we determine that you are not suitable for the Program for any reason.
- We warrant that the Services provided on Trimorph will be performed substantially with reasonable skill and care.
- However, we do not warrant that your use of the Services rendered will be uninterrupted or error-free; we shall not be responsible for any delays, omission, or any other loss or damage resulting from the services provided by Trimorph.
- This agreement shall not prevent Trimorph from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, and/or services which are similar to those provided under this agreement.
- You shall:
(a) provide us with:
i. all necessary co-operation in relation to this agreement; and
ii. all necessary access to such information as may be required by us; in order to render the services as required.
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
- Carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner as reasonably necessary.
When advertising our services, you should use only promotional materials as approved by Trimorph. Approved materials are only those we provide in your Affiliate Area or the ones that a Trimorph representative approves in writing. Approved materials may contain Trimorph trade names, service marks, and/or logos for display on your Affiliate Site and slogans. We hereby grant you a limited, non-exclusive, non-transferable license to access and download such promotional materials for placement on your website for the sole and exclusive purpose of promoting websites owned, operated or controlled by Trimorph. By using such promotional materials, you agree to work with us in order to establish and maintain approved promotional materials.
You agree that, upon termination of your affiliate account the limited, non-exclusive license to access and download promotional materials of Trimorph shall be automatically withdrawn.
Inappropriate ways of advertising include, but are not limited to:
- Threaten, defame, stalk, abuse, or harass other persons or engage in illegal activities;
- Link to the Services from a site or transmit any material that is inappropriate, profane, vulgar, offensive, false, disparaging, defamatory, obscene, illegal, sexually explicit, racist, that promotes violence, racial hatred, or terrorism, or that we deem, in our sole discretion, to be otherwise objectionable;
- Frame the Services, display the Services in connection with an unauthorized logo or mark, or do anything that could falsely suggest a relationship between Trimorph and any third party or potentially deprive us of Commission (including, without limitation, Commission from advertising, branding, or promotional activities);
- Violate any person’s or entities legal rights (including, without limitation, intellectual property, privacy, and publicity rights), transmit material that violates or circumvents such rights, or remove or alter intellectual property or other legal notices;
- Transmit files that contain viruses, spyware, adware, or other harmful code;
- Advertise or promote goods or services without our permission (including, without limitation, by sending spam);
- Interfere with others using the Services or otherwise disrupt the Services;
- Transmit, collect, or access personally identifiable information about other users without the consent of those users and CBS Interactive;
- Engage in unauthorized spidering, “scraping,” or harvesting Content, contact or other personal information, or use any other unauthorized automated means to compile information;
- Impersonate any person or entity or otherwise misrepresent your affiliation or the origin of materials you transmit; or
- Defeat any access controls, access any portion of the Services that we have not authorized you to access (including password-protected areas), link to password-protected areas, attempt to access or use another user’s account or information, or allow anyone else to use your account or access credentials.
You will be eligible to a per-sale commission for any valid sale you refer to Trimorph. For a valid sale there are few prerequisite requirements:
The sale has to be made as a result of your active referral efforts. We shall have the right to determine that if any of the following is true:
- During the time of order the customer has an active cookie indicating you as the last affiliate who referred them to our website, provided that the customer has not reached our website through a search engine with a search string not containing the Trimorph name;
- The referral must be made no later than 2 months from the order date; the customer does not object to that claim and we do not have information that attributes the sale to another advertising channel.
- Your affiliate account must be active at the time of the sale. No commission is due for sales that were made before you registered for our Affiliate Program.
- The customer you refer has not used our services before and has not signed up for an affiliate account with us before.
- The customer completed their order processes without any assistance from you, including when you act on behalf of the customer.
- The sale is for any of our maintenance plans. Sales for other services or additional account features do not qualify for commissions.
- The sale is for any of our maintenance plans at any billing cycle.
- The referred customer has maintained his account active, with a domain name pointed to one of our servers and a website with user-uploaded content for the minimum required period as described herein. User-uploaded content is defined as content different from any default installation via automated installation tools we provide or different from any default content you upload across the accounts you refer. The minimum required period is set to:
a. More than 30 days for accounts initially ordered with a billing term longer than one month.
b. More than 90 days for accounts initially ordered with a one-month billing term.
- Sales of maintenance accounts that are cancelled by the customer or suspended by Trimorph for any reason do not qualify for an affiliate commission.
- The initial order payment and any related service renewal payments of the referred customer are fully processed and are not subject to refund or chargeback.
- We reserve the right to mark any sale as invalid at our own discretion, without providing any explanation or justification.
We shall provide you with a statement of commissions due in your Affiliate Area.
If applicable for your country of residence, we will issue self-billing invoices for all commission payouts, including applicable taxes.
The Affiliate Program Terms and Conditions will be considered a valid Self-billing Agreement between you and Trimorph and that shall continue until termination of your Affiliate account. By signing up for our Affiliate Program you agree to accept self-billing invoices raised by Trimorph on your behalf, not to raise any sales invoices for the commission payouts you receive from Trimorph and to notify us immediately if you change your name, company details or tax registration status.
- We, or one of our affiliates, will pay the Commission share amount due to you within forty-five (45) days after the end of each fiscal quarter in an amount equal to the Net Commission we recognize as Commission from your Affiliate Transactions during such quarter.
- You are responsible for payment of all taxes applicable to the Commission Share. You will be assessed sales tax unless you provide us with a valid reseller certificate that indicates tax should not be applied to the Commission Share amount. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
- In order to receive payment under this Agreement, you must agree to the terms of this Agreement and complete all information in our account information form.
- Trimorph shall pay all affiliate commissions based on the structure and in the currency outlined on the Affiliate Program signup page, unless a custom agreement exists in writing. Any commissions earned for valid sales will be paid out after a holding period of 30 days. We reserve the right to extend the holding period as set out in the T&C and without prior notice for as long as is reasonably necessary in order to establish the validity of a sale.
- We process commission payouts once per week or less often depending on your preferences. Affiliate commissions are paid out via PayPal and you are responsible for any transaction fees, unless a custom agreement applies.
- You are solely responsible for keeping all your information up to date including postal and email addresses, name, payment information, tax information and any other personal information that will impact our ability to process a commission payout. We will suspend commission payouts until we have all required details, including your tax information. Payout on suspended commissions can be claimed up to 6 months from the date they would have been originally due for payment.
- We may suspend your commission payouts at any time and for any period, if we suspect fraudulent or other improper activity or a potential violation of this Agreement by you or any customer you refer.
- We reserve the right to deduct from your current and future commissions any and all commissions paid out for sales that are fraudulent, questionable, or canceled. Where no current and future commissions are due, we will send you a bill for the balance of such refunded purchase upon termination of the program or termination of the referred customer account.
You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Partner Marks”) in connection with the Affiliate Program and this Agreement.
During the term of this Agreement, you may use our trademark as long as you follow the usage requirements in this section. You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Affiliate Program and this Agreement; and (iii) immediately comply if we request that you discontinue use. You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
(a) The Parties acknowledges and agrees that the Trimorph and/or its licensors own all intellectual property rights including any Patents, Trademarks, Copyrights, documentation, programming codes, data, image, design, records and charts, audio/video clip; or any information relating to our trade secret or other operational data.
(b) It is expressly stated herein, this agreement does not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), any codes or any other leads, rights or licenses in respect of the Services or the Documentation.
Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, and (ii) Trimorph customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
DISCLAIMERS; LIMITATIONS OF LIABILITY
WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE HUBSPOT PRODUCTS, HUBSPOT CONTENT, THE AGENCY PARTNER PROGRAM, THE OPTIONAL PARTNER PROGRAMS OR THE TEST PORTAL FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE TEST PORTAL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE HUBSPOT PRODUCTS, OPTIONAL PARTNER PROGRAMS, AND TEST PORTAL ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE HUBSPOT PRODUCTS, THE OPTIONAL PARTNER PROGRAMS AND THE TEST PORTAL INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL REVENUE SHARE AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED PARTNER TRANSACTION IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
This Agreement shall be governed by the laws of the jurisdiction in which the Trimorph is located (or if the Trimorph is based in more than one country, the country in which its headquarters are located) (the “Territory”) and the parties agree to submit disputes arising out of or in connection with this Agreement to the non-exclusive of the courts in the Territory.
TERM AND TERMINATION
a. Term. This Agreement will apply for as long as you participate in any of our affiliate Program, until terminated.
b. Termination Without Cause. Both you and we may terminate this Agreement on sixty (60) days written notice to the other party.
c. Termination of Inactive Partners. If you are an Inactive Partner, then we may terminate this Agreement on thirty (30) days written notice to you. If, within twenty-one (21) days from the date of such notice, you present us with a plan that will result in you becoming an Active Partner, we will consider this plan in good faith. We may then choose to notify you in writing that we withdraw our notice of termination, in which case the Agreement will not terminate.
d. Termination for Cause. We may terminate this Agreement and/or suspend your or the End User’s access to the Trimorph Products: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) upon fifteen (15) days notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if the End User violates the Customer Terms of Service or applicable local, state, federal, or foreign laws or regulations, (v) immediately, if you breach the terms applicable to your subscription with us (if you have one), including if you default on your payment obligations to us or our affiliate, or (vi) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
e. Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement without cause by us or by you with cause, shall not affect our obligation to pay you a Commission Share, so long as the related payment by the End User is recognized by us within thirty (30) days after the date of such termination or expiration. We will not pay you fees on End User payments recognized by us after thirty (30) days after the date of such termination or expiration. Provided however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Commission Share will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive any Commission Share prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Commission Share after expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of and delete all Trimorph Leads and Shared Leads if we provided them to you and you do not otherwise have consent from the applicable Trimorph Lead or Shared Lead to continue use of their data and information. Upon termination or expiration, a prospect is not considered valid, and we may choose to maintain it in our database and engage with such a prospect.
Upon termination or expiration, you will immediately discontinue all use of our trademark, and will remove all Trimorph badges and Affiliate Program tier information and references from your website(s) and other collateral. Termination or expiration of this Agreement shall not cause your or an End User’s subscription agreement to be terminated.
IF YOU HAVE ANY QUERIES, PLEASE WRITE TO US BY EMAIL TO: [email protected]