This Xero Affiliate Program Agreement ("Agreement") contains the terms and conditions that apply to your participation in the Xero, Inc. Affiliate Program (the "Program"). We refer to you as "Affiliate", or "You" and Xero, Inc., or an affiliate under common ownership thereof, for the region in which You are located (currently Xero Australia Pty Limited if You are an Australian tax resident and Xero (UK) Limited if you are a tax resident in the European Union), as "Xero" or "us", "our" or "we". This Agreement is effective on the date Affiliate submits an application for the Xero Affiliate Program or otherwise executes this agreement.
By clicking the "Submit" button to apply online for the Program or otherwise applying for or participating in the Program, Affiliate agrees to be bound by the terms and conditions of this Agreement. If You are an individual applying for the Program on behalf of a company or other organization, You represent and warrant that You have all necessary authority to bind such company or organization to the terms and obligations of this Agreement. Xero may modify any of the terms and conditions in this Agreement upon seven days' notice at Xero's sole discretion. In such event, You will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and/or Program rules. If any modification is unacceptable to You, Your only option is to end this Agreement and cease Your participation in the Program. Your continued participation in Program by clicking to accept the new Agreement will indicate Your agreement to the changes.
To join the Xero Affiliate Program, Affiliate must apply via the Commission Junction, Inc. ("CJ") Account Manager interface. Affiliate acknowledges and agrees that it is solely responsible for the development, operation and maintenance of the websites owned or controlled by Affiliate and for all materials that appear on the Affiliate website(s) or are distributed by Affiliate to Affiliate's customers (as used herein, Affiliate's "customers" means users of Affiliates products and services and any other party that Affiliate refers, recommends, endorses or links to Xero's products or services). Upon receipt of an application from Affiliate, Xero may, in its sole and absolute discretion, accept or reject such application for participation in the Program. Affiliate agrees to (a) provide accurate, current and complete information about Affiliate as may be prompted by any registration forms (b) maintain the security of Affiliate's username and password; (c) maintain and promptly update any other information Affiliate may provide to Xero to keep it accurate, current and complete; and (d) be fully responsible for all use of Affiliate's account and for any actions that take place using Affiliate's account.
2. AFFILIATE REQUIREMENTS
Upon acceptance into the Program, and subject to the terms of this Agreement, Affiliate will display one or more textual and/or graphical hypertext links (e.g., a button or banner advertisement) to the Affiliate Site, or such other websites as specified to Xero, on one or more sections of the Affiliate Sites, email advertisements, and search engines in accordance with the specifications and requirements set forth herein and that Xero may provide or make available to Affiliate from time to time in connection with the Xero Affiliate Program. Xero shall have sole discretion to reject any links, or any aspect thereof, with or without cause, and Affiliate shall immediately comply with all requirements and instructions provided by Xero from time to time regarding the content, function, design, label and placement of the links, including without limitation complete removal of any link. Without limiting the foregoing, Affiliate agrees, represents and warrants that it does, and will at all times comply with the following:
a. Affiliate shall not promote content that is potentially harmful, obscene, indecent, sexually explicit, gratuitously violent, defamatory, unlawful, misleading, deceptive, fraudulent, infringing of third-party intellectual property rights (including without limitation any copyrights, trademarks, trade secrets, or rights of privacy or publicity, or patent rights), or otherwise offensive or objectionable content, and shall not promote gambling, illicit drugs, software pirating, hacking, spoofing, redirecting, or any harmful or illegal act as determined by Xero at its sole discretion.
b. Affiliate Sites shall not contain any material that contains software viruses, worms, defects, Trojans, malware, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware device, or any other items of a destructive nature.
c. Adware, spyware and all other malware is strictly prohibited.
d. Affiliate shall not create or design any website or any other website that You operate, explicitly or implied in a manner which resembles the Xero website nor design any website in a manner which leads customers to believe You are Xero.com or any other affiliated business.
e. Affiliate shall link directly to Xero.com with no site framing, pop-up windows or downloaded software and must not tamper with any redirect links provided for sales tracking.
f. Affiliate shall not modify any offers, documents, creative, or other materials created or furnished by Xero in conjunction with the Program without the prior written consent of Xero Affiliate shall not display or otherwise use the trademarks, service marks, or trade dress of Xero (except as contained in materials provided by Xero) without the prior written consent of Xero.
g. Affiliate sites shall include any and all disclaimers required by applicable laws and agency regulations and guidelines (including the U.S. Federal Trade Commission where applicable or, for Australian Affiliates, the Competition and Consumer Act 2010, where applicable), regarding compensation received for testimonials and endorsements.
h. Affiliate shall adhere to Xero's brand guidelines as in effect from time to time at Xero's discretion and posted at http://help.xero.com/help/resources/xerocommguidelines-3f6e088e.pdf and/or any other location specified by Xero.
i. Affiliates must abide by all applicable laws and agency regulations and guidelines guidelines (including the U.S. Federal Trade Commission where applicable or, for Australian Affiliates, the Competition and Consumer Act 2010, where applicable) regarding testimonials and endorsements of products while using affiliate links.
j. Affiliate shall not use flash cookies or super cookies, and, with respect to HTML5 or other mechanisms that allow for the persistent storage and retrieval of information, these mechanisms must operate in accordance with any user-set browser controls (such as those presently available for HTTP cookies).
k. Affiliate will comply with all applicable laws, regulations, industry, and self-regulatory organization standards, including without limitation, those related to privacy and security, advertising (including where applicable the Digital Advertising Alliance's Self-Regulatory Principals for Online Behavioral Advertising found at www.aboutads.info and the CAN-SPAM Act, and all applicable foreign equivalents including, for Australian affiliates, the Spam Act 2003, the Competition and Consumer Act 2010 and all other Australian fair trading legislation), unfair and deceptive trade practices acts, gambling, contest and sweepstakes laws, and intellectual property (collectively, "Laws")
m. Affiliate shall not use the Program for competitive purposes.
n. Affiliate must abide by all other Xero policies and guidelines in effect from time to time in Xero's discretion that are communicated to Partner on Xero's website, by email, or otherwise.
The term of this Agreement shall take effect upon Xero's acceptance of Your Affiliate application and shall end when terminated by either party. Xero may terminate this Agreement for convenience at any time, for any reason or without a reason, effective upon 7 days' notice to you via the CJ Account Manager or other notice in writing (including via email). Upon termination, any and all rights of Affiliate to payment shall cease immediately (other than with respect to any payments for the period prior to termination of this Agreement unless termination is due to Affiliate's breach). If Xero terminates due to a breach by Affiliate of this Agreement, Affiliate shall not be entitled to payment of any fees or payments otherwise payable to Affiliate under this or any other Agreement between Xero and Affiliate from the date of the occurrence of such breach on, and Affiliate agrees that Xero may set off any amounts otherwise payable to Affiliate against any damages Xero may suffer as a result of such breach in addition to exercising all other rights and remedies available hereunder or otherwise available by law or equity.
4. COMMISSION PAYMENTS
Xero uses a third party to handle all tracking and payment of Affiliate referred sales and/or registrations. Xero's third party partner for all Program tracking and payment is Commission Junction. Please refer to the Xero Program information page within Commission Junction for current commission information and for Commission Junction payment terms and conditions.
Affiliate shall be solely responsible for its own tax obligations in connection with its performance under this Agreement and receipt of any payments from Xero or Commission Junction.
6. ACCESS AND USE RIGHT
Xero grants Affiliate a non-exclusive, non-transferable, revocable right to (i) access the Xero website through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the "Permitted Materials") that we provide to You or authorize for such purpose. You are only entitled to use the Permitted Materials to the extent that You are a member in good standing of the Xero Program. You agree that all uses of the Permitted Materials will be on behalf of Xero and the good will associated therewith will inure to the sole benefit of Xero.
You may not use or disclose any information of Xero that is confidential or proprietary to Xero, which may include, without limitation, software, in object and source code format, marketing plans, research and development memoranda, technical information and other information containing trade secrets and know-how, intellectual property and financial information, and any information on or about Xero's or any of its affiliates' customers or business, in each case, whether disclosed in writing, orally or by inspection of tangible objects, unless generally known to the public other than due to Your use or disclosure of such confidential information You will not share confidential information with anyone other than Your employees and agents who have a need to know of any such confidential information and who are bound in writing to keep the information confidential, and You assume full liability for any breach of confidentiality by any such employee or agent as if such breach were committed by You. You will safeguard the confidentiality of such confidential information with at least the same degree of care as You protect Your own information and in no event less than a reasonable standard of care and You will immediately notify Xero of any unauthorized use or disclosure of such confidential information.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAWS, XERO GIVES NO WARRANTY ABOUT XERO'S PRODUCTS AND SERVICES. WITHOUT LIMITING THE FOREGOING, XERO DOES NOT WARRANT THAT ANY PRODUCT OR SERVICE WILL MEET YOUR OR YOUR CUSTOMERS' NEEDS OR THAT IT WILL BE SUITABLE FOR ANY PARTICULAR PURPOSE. TO AVOID DOUBT, ALL IMPLIED CONDITIONS OR WARRANTIES ARE EXCLUDED IN SO FAR AS PERMITTED BY LAW, INCLUDING (WITHOUT LIMITATION) WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE, TITLE AND NON-INFRINGEMENT. CERTAIN JURISDICTIONS' LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. TO THE EXTENT THAT XERO'S SERVICES ARE PROVIDED TO A CONSUMER IN AUSTRALIA WITHIN THE MEANING OF THE AUSTRALIAN CONSUMER LAW, THAT AUSTRALIAN CONSUMER MAY HAVE CERTAIN RIGHTS AND REMEDIES (INCLUDING, WITHOUT LIMITATION, CONSUMER GUARANTEE RIGHTS) THAT CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT. NOTHING IN THIS CLAUSE 8 OPERATES TO EXCLUDE, RESTRICT OR MODIFY THE APPLICATION OF ANY IMPLIED CONDITION OR WARRANTY, PROVISION, THE EXERCISE OF ANY RIGHT OR REMEDY, OR THE IMPOSITION OF ANY LIABILITY UNDER THE AUSTRALIAN CONSUMER LAW OR ANY OTHER STATUTE, WHERE TO DO SO WOULD:
a. CONTRAVENE THAT STATUTE; OR
b. CAUSE ANY TERM OF THESE TERMS AND CONDITIONS TO BE VOID.
9. LIMITATIONS ON LIABILITY
EXCEPT FOR A PARTY'S OBLIGATIONS UNDER SECTION 2 (AFFILIATE REQUIREMENTS), SECTION 5 (TAXES), SECTION 7 (CONFIDENTIALITY) OR SECTION 10 (INDEMNIFICATION) EACH PARTY'S CUMULATIVE LIABILITY FOR ALL FINES, PENALTIES, LOSSES, COSTS, DAMAGES, INJURIES, CLAIMS, EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES, AND LIABILITIES (COLLECTIVELY, "LOSSES") TO THE OTHER PARTY AND ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SHAREHOLDERS (COLLECTIVELY, "RELATED PARTIES") SHALL BE LIMITED TO THE AMOUNT TO WHICH YOU ARE ENTITLED TO AS REFERRAL FEES UNDER SECTION 1 DURING THE PREVIOUS 12 MONTH PERIOD. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ITS RELATED PARTIES FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
You shall indemnify, defend, and hold harmless Xero and its Related Parties from and against any Losses arising from a breach of any of Your obligations to Xero or any other act or omission on Your part.
11. OTHER LEGAL TERMS
a. Assignment. Affiliate shall not assign (including in connection with a change of control) any or all of Affiliate's rights or obligations hereunder except with the prior written consent of Xero which may be withheld, conditioned or delayed in Xero's sole and absolute discretion.
b. Survival. Sections 2 (Affiliate Requirements), Section 3 (Termination), 6 (Access and Use Right), 8 (Disclaimer), 9 (Limitations on Liability) and 10 (Indemnification) shall survive any termination of this Agreement. Neither party will be liable for damages or costs of any nature arising from the termination of this Agreement in accordance with its terms.
c. Relationship of the Parties. It is agreed and understood that this Agreement shall not be or deemed to be a partnership, joint venture, agency or any other relationship other than that contained in this Agreement.
d. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall in no way be affected or impaired thereby.
e. Governing Law; Venue. UNLESS YOU ARE A TAX RESIDENT OF THE UNITED KINGDOM, NEW ZEALAND, OR AUSTRALIA, THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN SAN FRANCISCO, CALIFORNIA, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY STATE COURT, OR TO THE EXTENT PERMITTED BY LAW, FEDERAL COURT, LOCATED IN SAN FRANCISCO, CALIFORNIA. IF YOU ARE A TAX RESIDENT OF NEW ZEALAND, THIS AGREEMENT IS GOVERNED BY NEW ZEALAND LAW, AND EACH PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF NEW ZEALAND FOR ALL DISPUTES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IF YOU ARE A TAX RESIDENT OF AUSTRALIA, THIS AGREEMENT IS GOVERNED BY THE LAWS OF VICTORIA, AUSTRALIA, AND EACH PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF MELBOURNE, VICTORIA FOR ALL DISPUTES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IF YOU ARE A TAX RESIDENT OF THE EUROPEAN UNION, THIS AGREEMENT IS GOVERNED BY THE LAWS OF ENGLAND AND WALES, AND EACH PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF ENGLAND AND WALES FOR ALL DISPUTES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
f. Waiver of Jury Trial. FOR U.S. RESIDENTS ONLY, THE PARTIES EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, INCLUDING CLAIMS BASED ON CONTRACT, TORT, BREACH OF DUTY, OR ANY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT.