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Partner Network Terms and Conditions
Read this carefully before submitting the application (the "Application") for participation in the Allestra Partner Network (the "Program"). This is a binding agreement (the "Agreement") between the individual submitting the Application or the entity on whose behalf the Application is being submitted ("you" and "your") and Allestra Corporation ("Allestra"). By submitting the Application, you hereby ACCEPT AND AGREE to all of the terms and conditions set forth in this Agreement.
1. Application Process. By submitting the Application you are expressing your desire to participate in the Program through which you may promote certain ALLESTRA products and services and are compensated for the number of qualified individuals that use such products and services as a direct result of your promotion efforts. As part of the Application you must submit the principal address of your web site (the "Website") upon which you desire to place the ALLESTRA Promos (as defined in Section 2). You represent and warrant that: (i) the information submitted in the Application is truthful and accurate; (ii) the person submitting the Application is at least 18 years old; (iii) in the event you are an entity, the person submitting the Application has the full right, power and authority to enter into this Agreement on behalf of such entity; and (iv) the execution of this Agreement by such person, and the performance by you of your obligations and duties hereunder, do not and will not violate any agreement to which you are a party or by which you are otherwise bound. You acknowledge that ALLESTRA makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement. ALLESTRA will evaluate the Application and will notify you of ALLESTRA's acceptance or rejection of the Application in a timely manner. ALLESTRA may reject the Application if the Website is deemed in ALLESTRA's sole discretion to be unsuitable for the Program, at any time for any reason. Unsuitable web sites include, but are not limited to, those that:
- Contain sexually explicit or obscene materials, or materials that are otherwise deemed offensive;
- Advocate discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or any other manner;
- Promote or engage in illegal activities;
- Violate intellectual property rights of third parties;
- Contain or promote deceptive information;
- Violate ALLESTRA's "Privacy Policy" available at http://www.allestra.com/info/privacy/, as may be modified from time to time by ALLESTRA in its sole discretion;
- Violate ALLESTRA's "Terms of Service, or TOS" available at http://www.allestra.com/info/terms/, as may be modified from time to time by ALLESTRA in its sole discretion.
2. Linking With, and Use of, ALLESTRA Promos. In the event your Application is accepted by ALLESTRA, you may use (to the extent provided in Article 4 below) the electronic graphic artwork and corresponding links to ALLESTRA products including the special promotion identifier and all HTML thereto (the "ALLESTRA Promos") available at http://www.allestra.com/partners/login.asp (the "Partners Area") as necessary to participate in the Program. ALLESTRA will provide the HTML for such links at the Partners Area, including a special promotion identifier that will make possible tracking and reporting of all New Allestra Customers (as defined in Section 5) acquired through your Website. It is your responsibility to integrate the ALLESTRA Promos into your Website properly in accordance with the instructions available in the Partners Area, and ALLESTRA shall not be liable to you with respect to your failure properly to integrate the ALLESTRA Promos into your Website, including to the extent such failure may result in any reductions of amounts that would otherwise be paid to you under this Agreement. You agree not to modify any ALLESTRA Promos in any way without the express written permission of ALLESTRA. You may only display the ALLESTRA Promos on your Website, and if you have multiple web sites other than the Website, you must submit an Application for each such web site to display the ALLESTRA Promos on such web site. Without limiting the foregoing, you shall not promote or otherwise announce the availability of the ALLESTRA Promos on your Website anywhere other than within your Website, including but not limited to using the ALLESTRA Promos in e-mail and promoting or otherwise announcing the availability of the ALLESTRA Promos on your Website through e-mail.
3. Your Website. You are solely responsible for, and ALLESTRA hereby disclaims all liability for, the development, operation and maintenance of, and all costs associated with, your Website, any content thereon and any equipment therefore. You hereby agree that your Website shall not, in any way, copy or resemble the look and feel of, or create the impression that it is, part of the ALLESTRA Service or any of ALLESTRA's or its affiliates' or subsidiaries' web sites. You agree that your Website shall at all times during the Term of the Agreement comply with the policies identified in Section 1.7, and shall not engage in any of the activities listed in Sections 1.1 through 1.7.
4. Limited License to Use ALLESTRA Promos. ALLESTRA hereby grants to you a nonexclusive, revocable license to display on your Website the ALLESTRA Promos solely as necessary for, and for the purpose of, promoting the products and/or services associated with the ALLESTRA Promos as set forth at the Partners Area and identifying you as a participant in the Program. To the extent, if any, that ALLESTRA Promos contain ALLESTRA's trademarks, service marks or trade names, you shall not use such marks in a manner that might be deemed to create a unitary composite mark. You agree not to use the ALLESTRA Promos in a manner that is, or otherwise include materials on your Website that are, disparaging of ALLESTRA. ALLESTRA reserves all proprietary rights in and to the ALLESTRA Promos not expressly granted herein. You agree this license can be revoked at any time for any or no reason upon notice by ALLESTRA to you (regardless of termination of this Agreement) and you agree upon receipt of such notice immediately to cease using all ALLESTRA Promos.
5. Payments
5.1 Referral Fees. On a monthly basis, within thirty (30) days after the end of each calendar month, ALLESTRA shall pay you a "Fee" for each New Allestra Customer who registered for an ALLESTRA Service or Product set forth below directly from a link within the ALLESTRA Promos on your Website using the special promotion identifier and thereafter became a New Allestra Customer in such month. "New Allestra Customer" means any person or entity who registers and pays for an ALLESTRA Service or Product during the Term as a direct result of your promotion of the ALLESTRA Service or Product by linking from one of the ALLESTRA Promos on your Website using your special promotional identifier and who pays the then-standard fees for the Service or Product to the ALLESTRA Service. The minimum Referral Fee for the each of the following type(s) of plans for the ALLESTRA Service is as follows:
| Service or Product Type | Fee per New Allestra Customer |
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| Allestra FAST! Listing | US $10.00 |
ALLESTRA may choose to offer you a higher Fee for a particular period of time or for particular types of an ALLESTRA Service. ALLESTRA will either provide you notice of such higher Fee to the e-mail address in your Application or will post notice of such higher Fee on the Partners Area. You acknowledge that ALLESTRA may offer a Fee to other participants in the Program that is higher than the Fee you receive. Nothing in the foregoing shall limit ALLESTRA's ability to lower the minimum Fee contained herein in accordance with Article 7.
5.2 Liability for payment. ALLESTRA's sole obligation in regards to remitting payment to you for the payments described in Section 5.1 shall be to mail such payment to the address submitted to ALLESTRA in the Application or in the event your address changes, to the address thereafter submitted at the Partners Area. You are solely responsible for assuring your address of record is current and correct. In the event a payment sent to such address is returned to ALLESTRA for any reason other than an error in such address on the part of ALLESTRA, you hereby waive any rights to receive such payment. ALLESTRA shall not be liable for any payment to you if ALLESTRA deems that you have engaged in any fraudulent or criminal activity in connection with the Program.
6. Reporting. Through the Partners Area ALLESTRA shall provide you with monthly reports setting forth the number of impressions that your Website generated of the ALLESTRA Promos, clickthroughs to an ALLESTRA web site that were generated from ALLESTRA Promos on your Website, and New Allestra Customers obtained by ALLESTRA through your Website in the preceding month. The form, content and timing of the foregoing reports may vary from time to time in ALLESTRA’s sole discretion.
7. Modification of This Agreement. ALLESTRA may modify any terms and conditions in this Agreement, including any amounts payable as Fees under Article 5, at any time in its sole discretion by posting a notice or a new Agreement on the Partners Area, but such new Agreement shall be effective no sooner than five (5) days after such notice or new Agreement is posted on the Partners Area. YOUR SOLE REMEDY AND RECOURSE IN THE EVENT ANY SUCH MODIFICATION IS UNACCEPTABLE TO YOU IS TO TERMINATE THIS AGREEMENT, PROVIDED THAT ALLESTRA SHALL PAY TO YOU ALL AMOUNTS DUE TO YOU PRIOR TO YOUR TERMINATION IN ACCORDANCE WITH SECTION 11.1. Notwithstanding the five (5) day notice period for termination provided in Article 9, such termination by you in the event of a modification shall be effective immediately upon receipt by ALLESTRA of notice thereof. Your continued participation in the Program after such five (5) day period has passed shall constitute acceptance of the modifications.
8. Press Releases and Publicity. You may not announce your use of the ALLESTRA Promos on your Website unless you first receive ALLESTRA's prior written approval of such announcement. ALLESTRA may announce your use of the ALLESTRA Promos on your Website in its sole discretion, and may announce partnerships with you in any media form as Allestra deems fit or advantageous including, but not limited to Media Kits, website promotions, press releases, and paper materials.
9. Term and Termination. This Agreement shall be effective on the date ALLESTRA accepts the Application and shall continue until either party terminates this Agreement as set forth herein (the "Term"). Either party may terminate this Agreement at any time for any or no reason upon five (5) days notice, (i) in the case of termination by ALLESTRA, to you at either, at ALLESTRA's option, the e-mail address contained in the Application or by posting such notice on the Partners Area, and (ii) in the case of termination by you, to ALLESTRA at the following email address: partners@allestra.com. Notwithstanding the foregoing, ALLESTRA may terminate this Agreement immediately in the event you breach this Agreement.
10. Limitation of Liability; Disclaimer; Indemnification
10.1 Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT YOU SHALL REMAIN LIABLE TO ALLESTRA TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 10.3. IN NO EVENT SHALL THE LIABILITY OF ALLESTRA IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES NOT EXCLUDED IN THE IMMEDIATELY PRECEDING SENTENCE EXCEED THE AMOUNT PAID OR PAYABLE BY ALLESTRA TO YOU UNDER THIS AGREEMENT.
10.2 No Additional Warranties. YOUR WEBSITE (EXCEPT AS PROVIDED IN SECTION 1), ALL OF ALLESTRA'S AND ITS AFFILIATE'S WEB SITES, THE ALLESTRA PROMOS, AND ALLESTRA SERVICE AND ALLESTRA PRODUCTS (COLLECTIVELY, "SUBJECT MATTER") ARE PROVIDED "AS IS" AND "AS AVAILABLE." EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SUBJECT MATTER, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
10.3 Indemnification. You agree to defend, indemnify and hold harmless ALLESTRA, its subsidiaries and affiliates, and their respective officers, directors, agents, distributors, franchisees and employees against any loss, damage, expense, or cost, including reasonable attorneys fees (including allocated costs for in-house legal services) arising out of any claim, demand, action, suit, investigation, arbitration or other proceeding by a third party ("Liabilities") based on (i) your material breach of any covenant, duty, representation, or warranty of this Agreement, (ii) materials contained on your Website (including any allegation that such materials infringe a third party's proprietary rights), (iii) or otherwise related to the Data, and (iv) or otherwise related to your Website and the content thereon.
11. Miscellaneous
11.1 Survival. Article 10 and Section 11.2, 11.4 shall survive the expiration or termination of this Agreement. Additionally, to the extent this Agreement is not terminated as a result of fraud relating to the Program by you or otherwise as a result of your breach of this Agreement, ALLESTRA's obligation to pay Fees under Article 5 shall survive for so long as is necessary to account for Fees generated from New Allestra Customers properly registered prior to the date of termination.
11.2 Applicable Law and Jurisdiction. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of Delaware except for its conflicts of law principles. Each party irrevocably consents to the exclusive jurisdiction of the courts of Delaware and the federal courts situated in Delaware, in connection with any action to enforce the provisions of this Agreement, to recover damages or other relief for breach or default under this Agreement, or otherwise arising under or by reason of this Agreement.
11.3 Solicitation of ALLESTRA Members. You will not send unsolicited, commercial e-mail (i.e., "Spam") through or into ALLESTRA's products or services, absent a Prior Business Relationship. For purposes of this Agreement, a "Prior Business Relationship" will mean that the ALLESTRA Member to whom commercial e-mail is being sent has voluntarily either (i) engaged in a transaction with you other than registering to receive the ALLESTRA Service through an ALLESTRA Promo provided on your Website or (ii) provided information to you through a contest, registration, or other communication, which included clear notice to the ALLESTRA Member that the information provided could result in commercial e-mail being sent to that ALLESTRA Member by you or its agents. Any commercial e-mail or other online communications to ALLESTRA Members that are otherwise permitted hereunder, shall (a) include a prominent and easy means to "opt-out" of receiving any future commercial communications from you, and (b) shall also be subject to ALLESTRA's then-standard restrictions on distribution of bulk e-mail (e.g., related to the time and manner in which such e-mail can be distributed through or into the ALLESTRA product or service in question).
11.4 Excuse. Neither party will be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions which are beyond such party's reasonable control and which such party is unable to overcome by the exercise of reasonable diligence.
11.5 No Waiver. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.
11.6 Assignment. You shall not assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of ALLESTRA.
11.7 Injunctive Relief. You acknowledge a violation of this Agreement could cause irreparable harm to ALLESTRA for which monetary damages may be difficult to ascertain or an inadequate remedy. You therefore agree that ALLESTRA will have the right, in addition to its other rights and remedies, to seek and obtain injunctive relief for any violation of this Agreement. Except where otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity.
11.8 Acknowledgment of Terms and Conditions. You acknowledge that you have read this Agreement and agreed to all the terms and conditions. You understand that ALLESTRA may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement, and ALLESTRA and its affiliates and subsidiaries may operate web sites that compete with your Website.
12. Other Definitions
- Allestra Member
- Any authorized user of the ALLESTRA Network and Website, including any sub-accounts using the ALLESTRA Network under an authorized master account.
- Allestra Network
- The ALLESTRA Service and any other product or service owned, operated, distributed or authorized to be distributed by or through ALLESTRA or its affiliates or subsidiaries worldwide (including, without limitation, the e-mail network contained therein).
- Allestra Service
- The U.S. version of the Allestra Corporation brand commercial online service.
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