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Merchant Terms & Conditions
SYMANTEC AFFILIATE PROGRAM
TERMS AND CONDITIONS
Read this Agreement carefully before engaging in any part of the Symantec Affiliate Program (the “Program”) or using any Symantec Content. This is a legal and enforceable contract between You and Symantec. By accepting these terms, by engaging in any part of the Program, or by using any of the Symantec Content (as defined below), You agree to these terms and conditions. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, THEN DO NOT ENGAGE IN ANY PART OF THE PROGRAM AND MAKE NO USE OF ANY SYMANTEC CONTENT.
If you accept these terms and conditions on behalf of an organization, you represent and warrant that you are authorized to do so.
The Symantec Affiliate Program is governed by these terms and conditions, the terms contained on the Symantec Affiliate Program online interface [available at the Avangate site] and all other terms or rules incorporated herein by references below.
The Program is a Symantec marketing program conducted through an affiliate network such as Avangate where participants, like You, agree to become an affiliate of the network provider, and post links on their website that drive online traffic to the Symantec online storefront (the “Storefront”). Participants receive varying commissions from Avangate based on Symantec’s sales to end users directly resulting from such links.
Symantec Corporation and/or its subsidiaries (“Symantec”) is willing to authorize you (referenced below as “You” or “Your”), as an individual or other legal entity, to participate in the Symantec Affiliate Program only on the condition that You accept all of the terms and conditions herein and all other terms that apply to the Symantec Affiliate Program (the “Program”) and accept Avangate’s Affiliate Terms as they exist from time to time. As part of Your participation in the Avangate-operated affiliate network and the Symantec Affiliate Program, You agree that:
• In the event that You belong to multiple affiliate networks, You will use links, materials, URLs, and other Symantec Content in a way to minimize the possibility of confusing customers or creates inconsistencies in tracking/reporting sales.
• You will not bid on search terms on search engines or other directory or referral services (e.g. Google, Yahoo!, MSN, Overture) that will increase the number of potential customers that are referred to or driven to the Storefront, without Symantec’s prior written consent. You can request participation in the search channel by Symantec.
• You agree that You may not pass off Your website as a Symantec website or promote Your website in a way that is likely to confuse or mislead third parties into thinking Your site is Symantec, a partner of Symantec or sponsored by Symantec; this prohibition includes, but is not limited to, copying and framing any of the Symantec web pages, using “Symantec Store” as the headline on any paid search advertisement and using colors or online design elements associated with the Symantec or Norton Brand.
• You will not use coupon codes or link to coupons from any other affiliate network when promoting offers from the Avangate- operated Symantec Affiliate Program.
• You will not suggest combining coupon codes in any verbiage on your website.
• You will comply with all laws and regulations, whether foreign, federal, state or local, applicable to the activities performed hereunder, specifically including any European Union data protection laws, Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) and Canada Anti-Spam Law (CASL).
• You will comply with Symantec policies regarding spam and privacy.
• You will not use on Your site adware, scumware, Trojan horses, malware and/or the like.
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• You will not make any communications concerning warranties, representations about the Symantec product, regarding order status, customer service or availability of the foregoing.
• Except for Your use of the Symantec Content as specifically authorized herein, You may not refer to Symantec in any capacity, orally or in writing, for any purpose, without Symantec’s prior written consent. “Symantec Content” includes all materials, documents, text, links, banners, ads, images or any other items Symantec provides to You for Your participation in the Program.
• You may not post adult-oriented content on any page on which the Symantec Content appears. You 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 as determined in Symantec’s sole discretion.
• You may use the links and/or banner ads that Symantec provides to you solely in the form in which they are provided to You. You may not alter the Symantec Content in any fashion. Subject to the limitations contained herein, you may place such links and/or banner ads on Your website in whatever location you prefer. Except as expressly stated in this Agreement, you have no other rights to use Symantec Content, or other Symantec intellectual property, in any manner.
• You may create unique non-standard creative content for your website(s) that contains Symantec Content or other Symantec intellectual property, but you must submit that unique creative content to Symantec for prior written approval before using it. You will comply with Symantec’s trademark, copywriting and other intellectual property criteria and requirement.
• You will adhere to Symantec’s marketing policies and guidelines, including but not limited to logo usage and product specific details. Symantec retains the right to review or ask You to revise the content on Your site. If Symantec determines that Your site content must be reviewed or revised, You must comply and make modifications within seven (7) business days from receipt of Symantec’s request.
• You agree that You may not distribute, transfer, sublicense, or otherwise use any Symantec Content in a manner not specifically authorized by this Agreement or which is inconsistent with any term of this Agreement or provision of law.
• You acknowledge that Symantec owns and will retain all right, title, and interest in all Symantec Content, including, without limitation any proprietary rights which may be developed in the future. You agree that Your use of Symantec Content inures exclusively to the benefit of Symantec, and You obtain no rights in Symantec Content through You use thereof.
• You agree that you may not use, or apply to register, any domain name or trademark incorporating the Symantec or Norton brand (or any part of it) or the Symantec or Norton Product name without Symantec’s prior written consent.
• You may not insert any type of tracking method or tracking data on any of the links for the Program or on any pages of the Storefront, which would allow a session to be permanent or otherwise allow an entity to capture: (a) a browser in use by a potential customer; (b) any particular site; or (c) any information captured within a session that may be associated with an individual customer.
• You acknowledge and agree that your participation in the program is in Symantec’s sole discretion, and that Symantec may terminate your participation in the Program at any time, with or without notice, for its convenience. This Agreement starts on the date You accept these terms as stated above, and will last until the day either Party terminates this Agreement. Neither You nor Symantec is obligated to continue under this Agreement for any period of time, and You should not rely upon Your continuing participation in the Program for any period of time.
• You acknowledge that Symantec owns and has exclusive rights to any and all customer information which comes into its possession as a result of, or relating to, the activities covered by this Agreement.
• You agree that You, or any third-party acting on Your behalf, shall not introduce, drop or otherwise display any non-Symantec offers or advertisements on the Storefront without Symantec’s prior written consent.
• You will not seek to interfere with or improperly influence a referral of a user to the Storefront.
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• You, or a third party acting on Your behalf, shall not seek to drive Internet traffic to the Storefront through methods inconsistent with the terms of the Program, e.g. bypassing or circumventing Program- approved traffic screening methods or link referrals to the Storefront.
• If Your account does not have any activity within six (6) months of joining the Symantec Affiliate Program, either Symantec or Avangate may disable Your account in its reasonable discretion.
Amending the Agreement. Symantec may amend this Agreement at any time by publishing a new version of the Agreement on the Symantec Affiliate Program online interface. You will be notified of any changes to the Agreement and You are required to accept the updated terms of the Agreement to continue participation in the Program. If any change to the Program terms is unacceptable to You, Your only remedy is to terminate this Agreement. No other amendments to this Agreement shall be valid.
Payments. A “Customer” means a customer who used a Referral Link to purchase the Symantec product on the Storefront. A “Referral Link” is a unique internet URL, issued to You for placement on Your website to be used to refer potential customers to the Storefront. A “Referral Sale” is a sale of the Symantec product or third party products bundled with a Symantec product on the Storefront to a purchaser who entered the Storefront and made the purchase via a Referral Link. “Chargeback(s)” means an amount of money which has been: (i) deemed to have been refunded by or returned by Symantec or Parties associated with Symantec to a Customer based on a Referral Sale which has been voided, retracted, subjected to returns, reversed due to fraud, or otherwise rescinded for any reason; or (ii) retrieved from, reserved against and/or charged against Symantec or parties associated with Symantec or any parties associated with Symantec credit card/debit card merchant account(s) under the terms of any applicable credit card merchant account(s) because of government actions including but not limited to embargo, court order, levy, security interest or other form of lien, reclamation, escheat or civil forfeiture. A Chargeback is a “Related Chargeback” to the extent that such Chargebacks arose out of, or relate to, particular Referral Sale(s), regardless of whether the original Referral Sale occurred during the current payment period or prior payment period. Net Revenue means for a specified period the product purchase price paid by customers to Symantec for specified Symantec products sold through the Storefront as a result of Click-Through Sales less returns and Chargebacks. The parties understand and agree that the product purchase price does not include taxes or shipping and handling charges. Payouts will be calculated by multiplying the applicable Revenue Share rate by the amount of Net Revenue (not including Chargebacks) during the relevant payment period for a particular Affiliate (applicable Revenue Share Rate) x (Net Revenue accrued during the payment period) – Chargebacks = Payout. Symantec’s obligation for payment is satisfied after Symantec has made payment to the Affiliate Network Provider. You acknowledge and agree that, in the unlikely event a transaction is credited to more than one affiliate network, last click logic will be used to determine the transaction owner and the transaction will be credited to only one affiliate network.
Amending the Revenue Share Rate and/or Symantec Products. Each Party acknowledges and agrees that Symantec may, in its sole discretion, modify: (i) the Revenue Share used to calculate the Payout; or (ii) the list of Symantec product(s) that shall be eligible for a Payout as part of a Referral Sale. Symantec (or its affiliate program provider, Avangate) shall communicate modifications to the Revenue Share and/or Symantec products subject to a Payout through the account manager portal or interface that is used to manage and track Affiliate’s account as part of the Symantec Affiliate Program. Such modifications to the Symantec Revenue Share or Symantec products shall become effective seven (7) days after Symantec or its affiliate program provider inputs the revised terms or sends notification to Affiliate through account manager portal or interface.
Insertion Orders. “Insertion Order” means a mutually agreed upon services description order for a unique Symantec Affiliate Program campaign which details, among other items, the services to be provided and the fees charged for such services. An Insertion Order shall not contain changes to Payout determinations or the commission rates used to calculate Payouts, and any such attempted changes shall be null and void. Symantec has the right to terminate any Insertion Order or associated campaign upon seven (7) days’ prior notice to Affiliate via email or through the account manager portal or interface. 23 Symantec Confidential- Subject to NDA
Confidentiality. You acknowledge that in the course of the relationship contemplated by this Agreement You will receive information that is confidential and proprietary to Symantec. You agree not to use such information except in performance of this Agreement and not to disclose such information to third parties. Such confidential and proprietary information consists of the terms of this Agreement, campaigns, program design and other information which by its nature or the circumstances surrounding it, should reasonably be considered by the receiving Party as confidential to such disclosing Party and any other information disclosed by such Party. The foregoing restrictions will not apply to information that (a) has been independently developed other than pursuant to this Agreement, (b) has become publicly known through no wrongful act by You, (c) has been rightfully received from a third party authorized to make such disclosure without restriction, (d) has been approved in writing by the disclosing party for release, or (e) is required to be disclosed by law, pursuant to a valid court order, provided that You shall first notify Symantec and give Symantec the opportunity to seek a protective order or to contest such required disclosure.
Non-Exclusivity. Your relationship with Symantec is non-exclusive, and Symantec may enter into similar relationships with others without regard to competition with You or any of Your other interests. Symantec neither approves nor endorses Your business or other efforts other than potentially approving You to participate in the Program as described in this Agreement, and You shall not in any way imply any other approved or endorsement by Symantec.
Export Compliance. You acknowledge and agree that: (a) Symantec licenses products and/or technical data and provides services that may be controlled under the United States Export Administration Regulations and may be subject to the approval of the United States Department of Commerce prior to export (collectively, “Controlled Technology”); (b) any export, directly or indirectly, of Controlled Technology in contravention of the United States Export Administration Regulations and other applicable law, is prohibited, including the laws of Ireland or Singapore if Controlled Technology is re-exported from those territories; and (c) Symantec product(s) are prohibited for export or re-exports to Cuba, Iran, North Korea, Sudan, and Syria and to any country or person subject to restriction (e.g. Iraq, Libya) or to any entity or person for which an export license is required. Use or facilitation of Symantec products in connection with chemical, biological, or nuclear weapons, or missiles, drones or space launch vehicles capable of delivering such weapons is prohibited. Additional information on export compliance may be found atwww.bis.doc.gov.
No Warranties; Disclaimers; Limitation on Liability. Symantec makes no promises or warranties to You that customers will purchase products through You as part of your participation in the Program, or that the Storefront will operate at all times or without error.
THE PROGRAM, THE SYMANTEC CONTENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL EXPRESS AND IMPLIED WARRANTIES WITH RESPECT TO THE PROGRAM, THE SYMANTEC CONTENT AND ANY SYMANTEC PRODUCTS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXCLUDED. SYMANTEC LICENSES ITS SYMANTEC CONTENT “AS IS,” AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS (INCLUDING ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) ARE DISCLAIMED.
SYMANTEC SHALL NOT BE LIABLE TO YOU FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES FOR THE LOSS OF ANTICIPATED PROFITS ARISING FROM ANY PERFORMANCE OR BREACH OF THIS AGREEMENT EVEN IF NOTICE IS GIVEN OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF SYMANTEC HEREUNDER SHALL BE LIMITED TO ONE HUNDRED DOLLARS (US$100). THE LIMITATIONS UPON DAMAGES AND CLAIMS SET FORTH IN THIS AGREEMENT IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE INVALID OR INEFFECTIVE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OR ANY LIMITED REMEDY PROVIDED HEREIN.
You agree that Your sole and exclusive remedy for any breach of this Agreement by Symantec is for You to: (a) collect any payments owed to You by Symantec as a result of Your participation in the Program according to its terms; and/or (b) terminate this Agreement.
Indemnification. You shall indemnify and hold Symantec harmless from and defend any claim, suit, demands, losses, costs, expenses, penalties or proceeding, and pay any settlement amounts or damages, arising out of claims by third parties which arise, result from, or relate to: (a) Your violation, breach, or failure to perform any of Your representations, warranties, and/or obligations under this Agreement; (b) an actual or alleged breach of any applicable 24 Symantec Confidential- Subject to NDA
laws by You; (c) an actual or alleged breach of any applicable laws by Symantec caused directly or indirectly by Your actions or inactions; (d) Your participation in the Program; (e) other activities You perform, services your provide, or products You sell; (f) the assertion of any infringement or other claims alleging that Your content, including Your creative content that is created under this Agreement, or Your website violates an intellectual property right of any other person or organization; (g) the negligence or willful acts or omissions of Your or Your employees or agents; or (h) Your breach of the export compliance stipulated in this Agreement.
Symantec will promptly notify You in writing of any such claim, and permit You to control the defense or settlement thereof and will cooperate in the defense or settlement thereof. If You fail to respond to Symantec after its written notice to You within fourteen (14) business days, fail to undertake and continue the defense, or fail (in Symantec’s sole and reasonable opinion) to adequately pursue or conduct the defense, Symantec will have the right (but not the obligation) to make and continue the defense it considers appropriate, and the expenses and costs incurred (including without limitation the amounts of any judgment rendered against Symantec) will be paid by You. You further agree that You will indemnify Symantec for any reasonable attorneys’ fees or other costs or expenses incurred by Symantec in investigating or enforcing its rights under this Agreement.
No Assignment. You may not assign any rights or obligations under this Agreement, by operation of law or otherwise, without Symantec’s prior written consent. Any attempted assignment except as expressly allowed by this section is null and void. Subject to the foregoing, this Agreement will benefit and bind the successors and assigns of the parties.
Potential Relief. You acknowledge that a breach of this Agreement may cause irreparable damage that cannot be remedied in monetary damages in an action at law, and may also constitute infringement of Symantec’s rights in and to its web site, trade names, trademark, copyrighted materials and/or logo. In the event of any breach that could cause irreparable harm to Symantec, or cause some impairment of or dilution of its reputation or trademark rights in Symantec’s logo, Symantec shall be entitled to an immediate injunction without bond, in addition to any other legal or equitable remedies.
Miscellaneous. Each Party represents and warrants to the other Party that it has full power to enter into this Agreement and to carry out its obligations under this Agreement. Each Party acknowledges and agrees that it is an independent contractor and not an agent, partner or joint venturer of the other Party. The right to require performance of any duty hereunder is not barred by any prior waiver, forbearance or dealing. This Agreement is the complete and exclusive agreement between the Parties with respect to the Agreement’s subject matter. This Agreement supersedes and replaces any and all prior agreements, communications, and understandings, both written and oral, about this subject matter. This Agreement may be executed in counterparts. Unless as explicitly qualified in a written instrument duly executed and per paragraph acknowledged by the authorized signatories of both Parties, in the event of any conflict between the terms and conditions of this Agreement and any Insertion Order, exhibit, purchase order, invoice, standard terms and conditions or similar document or writing provided by You in connection with Symantec Affiliate Program, the terms and conditions set forth in this Agreement shall govern.
Governing Law. This Agreement shall be governed by and construed in accordance with the internal law of the following jurisdictions without reference to any conflict of law rule, based on the applicable Territory as follows: the laws of the State of California USA for Entire Region - NAM, Entire Region -LAM; the laws of Singapore for APJ and for the laws of England for all other locations. Such application of law excludes any provisions of the United Nations Convention on Contracts for the International Sale of Goods, including any amendments thereto, and without regard to principles of conflicts of law. If any provision of this Agreement is found partly or wholly illegal or unenforceable, such provision shall be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement shall remain in full force and effect. A waiver of any breach or default under this Agreement shall not constitute a waiver of any other right for subsequent breach or default. Notwithstanding the foregoing nothing herein shall preclude either party from seeking injunctions from any court of competent jurisdiction in order to protect its intellectual property rights or Confidential Information.
In the event of any legal action or claim concerning the terms of this Agreement or the performance of any Party under the terms of this Agreement, all reasonable legal fees, costs and expenses of the prevailing Party relating to such legal action or claim shall promptly be paid by the other Party. Notices to either Party shall be in writing and shall be deemed 25 Symantec Confidential- Subject to NDA
delivered when served in person or three (3) business days after being deposited in the United States mail, first-class certified mail, postage prepaid, return receipt requested, or one (1) business day after being dispatched by an internationally recognized one-day express courier service addressed to the parties as indicated below. A copy of any notice to Symantec shall be sent to the General Counsel at 350 Ellis Street, Mountain View, California 94043.
These terms and conditions constitute the entire agreement between You or anyone acting on your behalf and Symantec regarding the Symantec Affiliate Program, and supersede all other written or oral agreements.