(Effective as of January 1, 2017)
By signing up to be an Affiliate in the BoomCloud Affiliate Rewards Program (“Program”) you are agreeing to be bound by the following terms and conditions (“Agreement Terms”).
BoomCloud, LLC (“BoomCloud”) reserves the right to update and change the Agreement Terms from time to time without notice. Any new features that augment or enhance the current Program, including the release of new tools and resources, shall be subject to the Agreement Terms. Continued use of the Program after any such changes shall constitute your consent to such changes. You can review the most current version of the Agreement Terms at any time at: http://www.boomcloudapps.com.com/affiliate-terms.
Violation of any of the terms below will result in the termination of your Agreement and for forfeiture of any outstanding affiliate commission payments earned during the violation.
1. Services shall mean BoomCloud products and services.
2. Customer shall mean third parties whom you believe desire to purchase BoomCloud Services and which BoomCloud(a) is not already actively pursuing as a customer, or (b) does not already have a pre-existing relationship with, whether via another participant in the Program, a BoomCloud salesperson, or otherwise.
1. Affiliate must provide BoomCloud with a W-9 form at the time Affiliate registers as a participant in the Program, and BoomCloud shall issue Affiliate a 1099 tax form annually for any and all income Affiliate earns under the Program.
2. Affiliate may not use the Program for any illegal or unauthorized purpose. Affiliate must not, in the use of the Service, violate any laws in Affiliate’s jurisdiction (including but not limited to copyright laws).
3. Affiliate may not use the Affiliate Program to earn money on Affiliate’s own BoomCloud accounts.
4. All agreements for Services and their negotiations shall be solely between BoomCloud and the Customer. Affiliate shall not be a third party beneficiary to any BoomCloud agreements.
1. Affiliate shall refer Customers to BoomCloud. A Customer must identify you as its referral source when placing an order for Services.
2. Maintain the accuracy, truth, and appropriateness of materials posted on your site (including, among other things, all Services-related materials and any information you include within or associate with Special Links)
3. Ensure that materials posted on your 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)
4. Ensuring that materials posted on your site are not libelous or otherwise illegal
5. Affiliate shall not make any representations or warranties regarding BoomCloud or the Services. Affiliate agrees to indemnify, defend, and hold harmless BoomCloud from claims and expenses (including attorney fees) arising from any violation of this provision.
6. Affiliate shall be responsible for any expenses incurred in connection with this Agreement. BoomCloud shall not be responsible for or reimburse Affiliate for any such expenses.
1. Referral Fees. If a Customer activates Services within 90 days of the date of your referral and as a result of your referral, BoomCloud shall pay Affiliate a referral fee outlined in Exhibit A of your BoomCloud Affiliate Rewards Program Agreement. You shall only be entitled to a referral fee if:
a. You are a registered Affiliate at the time you make each referral.
b. The Customer has identified you as the referral source when placing an order for Services.
c. The Customer is not already an active BoomCloud lead.
2. Payment Terms. BoomCloud shall pay earned Commissions within the 30-days of Commissions being earned. Commissions are earned once the customer has made their second monthly payment. No Commissions shall be paid for BoomCloud Services that are billed by BoomCloud but not paid by a Customer.
3. Payments by ACH. Commissions to Affiliates are paid by Automated Clearing House (ACH) bank deposit to an account designated by the Affiliate.
4. Disqualification. BoomCloud reserves the right to disqualify commissions earned through fraudulent, illegal, or overly aggressive, questionable sales or marketing methods.
Affiliate Marketing Activities
1. Press Releases. Affiliate may not issue any press release with respect to this Agreement or your participation in the Program; such action may result in your termination from the Program. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, say you develop our products, say you are part of BoomCloud, LLC, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that we support, sponsor, endorse, or contribute money to any charity or other cause).
2. Spam and Email Messages. Under no circumstances shall Affiliate send commercial email messages, as defined in the CAN-SPAM Act of 2003 (the “Act”), in connection with BoomCloud Affiliate Rewards Program. For clarification, this does not prohibit Referrer from sending transactional or relationship messages as defined in the Act. Except as expressly authorized by BoomCloud, any and all email initiated or sent by Affiliate or on Affiliate’s behalf must identify Affiliate as the sender and may not suggest or imply, or mislead or be likely to mislead a recipient into believing that a BoomCloud site is the sender or sponsor of, or has procured Affiliate to send, such email. Affiliate may not use a return address, subject heading, header information or message contents that mislead or confuse or is likely to mislead or confuse a recipient of any such email message as to Affiliate being the sender. All Affiliate email messages that are intended to represent BoomCloud sites must be pre-approved in writing by SR.
3. Adult Content and other Unacceptable Content. Affiliate may not post adult-oriented content on any page where BoomCloud content appears. BoomCloud considers content to be “adult” if it contains nudity or obscenity, sexually explicit, pornographic, or lewd material. Affiliate may not post any offensive content or incorporate images or content that is in any way harmful, threatening, obscene, harassing or racially, ethnically or otherwise objectionable, or promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age. BoomCloud, in its sole discretion, has final approval of what is considered appropriate.
4. Content. Affiliate may not use BoomCloud content (including any BoomCloud site content, reviews, copy, and images) unless it is provided by BoomCloud. Affiliate may not utilize BoomCloud content on any web page that promotes any other company or its products.
Compliance with Laws
As a condition to your participation in the Program, you agree that while you are a Program participant you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc. are now in effect or later come into effect during the time you are a Program participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.
All confidential or proprietary information disclosed or developed hereunder shall be held in confidence by each party to the same extent and in at least the same manner as such party protects its own confidential or proprietary information, using nothing less than reasonable care. Neither party shall use the other party’s Confidential Information for any purpose other than to fulfill its obligations under this Agreement, and neither party will disclose the other party’s Confidential Information other than to employees who have a need to know such information in order to fulfill the party’s obligations hereunder and who have agreed in writing to abide by the confidentiality provisions of this Agreement.
Term of the Agreement and Program
The term of this Agreement will begin upon our acceptance of your BoomCloud Affiliate Rewards Program Agreement and will end when terminated by either party. Either Affiliate or BoomCloud may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, Affiliate will immediately cease use of, and remove from Affiliate’s site, all links to any BoomCloud Services, and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of BoomCloud to Affiliate pursuant hereto or in connection with the Program. BoomCloud reserves the right to end the Program at any time. Upon program termination, BoomCloud will pay any outstanding earnings accrued.
BoomCloud, in its sole discretion, has the right to suspend or terminate any Affiliate account and refuse any and all current or future use of the Program, or any other BoomCloud service, for any reason at any time. Such termination of the Service will result in the deactivation or deletion of your Account or Affiliate access to the Affiliate Account, and the forfeiture and relinquishment of all potential or to-be-paid commissions in your Account if they were earned through fraudulent, illegal, or overly aggressive, questionable sales or marketing methods. BoomCloud reserves the right to refuse service to anyone for any reason at any time.
Relationship of Parties
1. Independent Contractors. Affiliate and BoomCloud are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate will have no authority to make or accept any offers or representations on our behalf. Affiliate will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
2. Non-Exclusivity by BoomCloud. Nothing contained herein shall be interpreted to: (a) require BoomCloud to contract with any Customer referred by Affiliate; or (b) prohibit BoomCloud from contracting with any other participant in the Program.
Limitations 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 Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to you under this Agreement.
We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of the Product Sites will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
AFFILIATE ACKNOWLEDGES THAT AFFILIATE HAS READ THIS AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. AFFILIATE UNDERSTANDS THAT BOOMCLOUD MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH AFFILIATE. AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us or any of our affiliates shall be submitted to confidential arbitration in Salt Lake City, Utah USA, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of Utah (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
All notices, required or permitted to be given hereunder shall be in writing and shall be deemed to have been received (i) when received if hand delivered, (ii) 3 days after being properly mailed, postage prepaid, by first class, certified or registered U.S. mail, or (iii) the next business day after being sent by U.S. Express Mail or by a major U.S. express document courier for overnight delivery.
This Agreement constitutes the entire agreement between Affiliate and BoomCloud regarding Affiliate participation in the BoomCloud Affiliate Rewards Program.
If any provision is determined to be invalid, illegal, or unenforceable, in whole or in part, such invalid, illegal, or unenforceable provision or portion shall be changed and interpreted so as to best accomplish the objectives of such provision or portion within the limits of applicable law or applicable court decisions.
This Agreement will be governed by the laws of the United States and the state of Utah USA, without reference to rules governing choice of laws. Affiliate may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. BoomCloud failure to enforce Affiliate strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
The failure of BoomCloud to exercise or enforce any right or provision of the Agreement Terms shall not constitute a waiver of such right or provision. The Agreement Terms constitutes the entire agreement between Affiliate and BoomCloud and govern Affiliate use of the Service, superceding any prior agreements between Affiliate and BoomCloud (including, but not limited to, any prior versions of the Agreement Terms).