Affiliate Program Member Agreement

Affiliate Member Agreement
Participants in the Affiliate Program must agree to the following terms. Please read in full before proceeding with the submittal of your application form.

By and between WebXess, Inc., a Texas corporation, also doing business as Webii, and the Affiliate member.

("Affiliate"). In consideration of the mutual covenants herein, the parties agree to the following, which shall apply during the term of this agreement:

1. DEFINITIONS

"Plans" or "Plan Type" means proposals for offering various services to be provided by WebXess, as listed online at: http://webxess.net/hosting.html and http://webii.net/e-commerce.html "Plans" does not include the use of WebXess' trademark. The "Plans" mentioned here refer to those that the Affiliate or Referee requested in the original order placement.

"Affiliate" means the party in this agreement who will receive a fixed payment on the Plans purchased from WebXess, as described in this agreement.

"Referee" means any party who renders services from WebXess with the recommendation of Affiliate. The Referee must notify WebXess of its relationship with Affiliate by including the appropriate Affiliate id at time of order.

"Referral Fee" means the fixed payment made by WebXess to Affiliate for each Plan rendered by Affiliate or by its Referee.

"Monthly Hosting Fee" means the current price charged per month for any certain Plan, excluding taxes, set up fees, or other additional costs not mentioned in the stated monthly price of that Plan.

"Hosting" or "Hosting Plan" means any Plan listed at: http://www.webii.net/hosting.html.

"E-commerce" or "E-commerce Plan" means any Plan listed at: http://www.webii.net/e-commerce.html.

"Program" means the Affiliate Program provided by WebXess (Webii) in which the Affiliate has chosen to participate.

2. GRANT OF DISTRIBUTION AND SALES RIGHTS
Affiliate will refer the purchase of Hosting and Ecommerce services through WebXess, Inc. [Webii].

3. PRICES
A. All prices for Plans provided by WebXess to Affiliate are US dollars.

B. Affiliate or Referee shall be responsible for paying all taxes of any nature which become due with regard to WebXess services, except for taxes on WebXess' income, irrespective of which party may be responsible for reporting or collecting such taxes.

4. ORDER ACCEPTANCE, PAYMENT
A. All orders are subject to acceptance by WebXess. An order will be deemed accepted by WebXess when written confirmation of the order is sent to Affiliate or its Referee. WebXess may refuse to accept any order, or delay acceptance pending fulfillment of conditions WebXess may choose to impose. Such refusal or such conditions may not be unreasonable, however, and WebXess agrees to provide Affiliate or its Referee with reasonable notice via email or fax of any intent to delay or decline the acceptance of any order.

B. Payment and Terms: Payment for orders shall be made in US dollars to WebXess into the account designated by WebXess, or as may otherwise be agreed in writing by the parties. Payments are due upon time of order placement, and future payments are due upon appropriate renewal date as specified in the WebXess Customer Agreement. If due to bank charges, transfer fees, or the like, WebXess should receive less than its invoice amount, WebXess will re-invoice customer for the shortfall. Should payment in full of any invoice (aside from such shortfalls) not be received by WebXess within thirty (30) days after presentation, WebXess will impose a debt service charge amounting to one percent (1%) of the overdue balance for each month or fraction thereof the overdue amount remains unpaid. In the event that any amount remains unpaid forty-five (45) days after presentation of invoice, WebXess may discontinue, withhold, or suspend services to Affiliate and/or its Referee(s) to whom such unpaid amounts relate.

C. Payment Rejection and Fraud: In circumstances in which an order has been claimed as fraudulent, or in which case payment for a referred account's first 60 days of payment was disputed with a credit card company or otherwise detracted from WebXess/Webii funds:

a. Affiliate is responsible for reimbursement of any Referral fees paid out by WebXess/Webii for the account in question.
b. Affiliate must contact Webii within reasonable time period to notify of the intention to refund Webii all previously paid Referral fees for the fraudulent or disputed account.
c. If they have not yet been paid, Affiliate will not be eligible to receive Referral Fees for the account in question.
d. In cases that an account ordered by the Affiliate was proved as fraudulent, the Affiliate will immediately be deemed ineligible to receive benefits of the Affiliate Program and the Affiliate account will be terminated.

C. Said Referral Fees shall be paid to Affiliate on a quarterly basis but shall not become due and owing to Affiliate until all fees due and owing WebXess have been paid by Referee (or account owner) to WebXess.

5. DUTIES OF AFFILIATE
A. Affiliate is responsible for assuring the submittal of orders for new Plans with the correct and appropriate information and payment, and for assuring that a reference to Affiliate ID is made in the order. If no reference to Affiliate is made in an order, WebXess cannot be expected to give credit to Affiliate for that account.

B. Affiliate and its Referee(s) will be responsible for all clauses and statements in the Web Hosting Customer Contract (http://www.webii.net/support/web_contract_agreement.html) and the Accepted Uses Policy (http://www.webii.net/support/uses.html) for each Plan ordered.

6. DUTIES OF WEBXESS

WebXess will pay a referral fee to Affiliate for each Plan ordered by Affiliate or by its Referee(s). This referral fee will be calculated based on the Plan type specified in the original order and delivered to the customer after the first 60 days of account activity. Each eligible Hosting Plan order will earn the Affiliate a $25.00 one-time referral fee. Each eligible E-commerce Plan order will earn the Affiliate a $40.00 one-time referral fee. This calculation does not apply to additional features, including but not limited to, add-on modules, disk space in excess of Plan limit, data transfer in excess of Plan limit, additional POP3 email accounts, additional FTP accounts. The referral fee will be applied to the account and distributed to the Affiliate only if the account has been active and properly paid for 60 days. Payment to the Affiliate will be issued on the next available Issue Date specified below:

Quarter

Issue Date

Q1
(Jan 1-Mar 31)

Apr. 15

Q2
(Apr 1-Jun 30)
July 15

Q3
(July 1-Sept 30) Oct. 15

Q4
(Oct 1-Dec 31) Jan. 15
(of following year)

WebXess will acquire, on request, an Internet Domain Name (only from the US InterNIC) on behalf of the Affiliate or any of its customers. In such case the Affiliate hereby waives in writing prior to acquisition of said domain name, any and all claims which it may have against WebXess for any loss, damage, claim or expense arising out of, or in relation to, the registration of such Domain Name in any on-line or off-line network directories, membership lists or registration lists, or the release of the Domain Name from such directories or lists following the termination of services by WebXess for any reason. Any costs of WebXess in obtaining or maintaining a domain name for Marketing Partner shall be immediately reimbursed to WebXess upon invoice from WebXess.

WebXess will provide the hosting services requested for all legitimate and properly paid orders submitted by Affiliate or its Referees.

In cases of downgrades or upgrades to an alternate Plan Type, the Affiliate will only receive an incentive for the original Plan Type that was ordered and delivered in the first 60 days of account activity. The Affiliate's Referral Fee will not be recalculated if a change is made to the Plan Type after the initial 60 days, unless in a circumstance of account cancellation or termination due to fraud or dispute of fees previously paid.

7. LIMITATION OF WEBXESS OBLIGATIONS AND LIABILITY
A. WebXess will utilize its best efforts to maintain acceptable performance of services contracted, but WebXess makes absolutely no warranties whatsoever, express or implied, including warranty of merchantability or fitness for a particular purpose. WebXess cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. WebXess will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted or received or stored on its system. WebXess shall not be liable to Affiliate or any parties referred by Affiliate for any claims or damages which may be suffered by Affiliate or its Referees, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-deliveries, or service interruptions whether or not caused by the fault or negligence of WebXess.

B. WebXess may discontinue servicing any Plan, or may require fulfillment of conditions WebXess may choose to impose a prerequisite for continuing to service any Plan. Such discontinuation or requirement may not be unreasonable, however, and WebXess agrees to provide Affiliate with reasonable notice via Email or fax of any such intent to discontinue service or impose conditions.

C. Services provided by WebXess to Affiliate shall be deemed accepted for all purposes, if no written claim or objection regarding such services has been received by WebXess within 30 days of order joining the Program. No claim related to such accepted services shall be raised.

D. WebXess� liability to Affiliate, and any end user of any Plan or other WebXess service is limited to the amount paid to and received by WebXess for services not accepted. In no event shall WebXess be liable to Affiliate, or any end user or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if WebXess has been advised of the possibility of such damage.

E. Affiliate will take all necessary measures to preclude WebXess from being made a party to any lawsuit or claim regarding WebXess services provided to any Affiliate or end user. Affiliate hereby agrees to indemnify and hold harmless WebXess from any and all claims of whatever nature brought by any of Affiliate�s Referees against WebXess in excess of the remedy set forth in paragraph 7(D).

8. PROPERTY RIGHTS
WebXess owns all right, title and interest in WebXess� trade names, service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of Plans and of the hardware and software systems and resources necessary to provide the individual service elements of which they consist. This agreement does not constitute a license to Affiliate to use WebXess' trade names or service marks, except as offered in promotional logos at: HYPERLINK http://affiliate.webii.net http://affiliate.webii.net . The use by Affiliate of the other property rights mentioned here is authorized only for the purposes of marketing and selling Plans.

9. CONFIDENTIALITY
Affiliate acknowledges that by reason of its relationship with WebXess hereunder, it may have access to certain information and materials relating to WebXess� business, plans, customers, software technology, and marketing strategies that is confidential and of substantial value to WebXess, which value would be impaired if such information were disclosed to third parties. Affiliate agrees that it will not use in any way for its own account nor for the account of any third party, nor disclose to any third party, any such information revealed to it by WebXess. Affiliate further agrees that it will take every reasonable precaution to protect the confidentiality of such information. In the event of termination of this agreement, there shall be no use or disclosure by the Affiliate of any such confidential information in its possession, and all confidential materials shall be returned to WebXess or destroyed. The provisions of this section shall survive the termination of the agreement for any reason. Upon any breach or threatened breach of this section, WebXess shall be entitled to injunctive relief, which relief shall not be contested by Affiliate.

10. RELATIONSHIP OF THE PARTIES
The relationship between WebXess and Affiliate is that of vendor and vendee. The relationship shall not be construed as being joint ventures, franchiser/franchisee, or employer/employee. This agreement is a commercial agreement between businesses, not a consumer agreement. Affiliate has no authority, apparent or otherwise, to contract for or on behalf of WebXess, or in any other way legally bind WebXess in any fashion, nor shall Affiliate be authorized to make any representations about WebXess or its services other than to set forth WebXess' responsibilities as outlined in this agreement.

11. DISPUTES
The parties shall attempt to resolve all disputes arising out of this agreement in a spirit of cooperation without formal proceedings. Any dispute which cannot be so resolved (other than the collection of money due on unpaid invoices) and other than the injunctive relief referred to in paragraph 10 shall be subject to arbitration upon written demand of either party. Arbitration shall take place in Austin, Texas, or at another location if the parties so agree. The arbitration shall take place before an arbitration panel chosen as follows: The parties shall each choose an arbitrator, and the two arbitrators shall choose a third arbitrator and determine the third arbitrator's compensation. Each party shall have one veto over the choice of the third arbitrator. The three arbitrators shall schedule an informal proceeding, hear the arguments, and decide the matter by secret majority vote. Unless the arbitrators decide otherwise, each party shall pay the costs of its own arbitrator, and shall pay half of the other costs of the arbitration proceeding. Each party shall have the right to have the proceedings transcribed. The arbitrators shall not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The majority of arbitrators shall render a written opinion setting forth the basis on which they arrived at the decision regarding each issue submitted to arbitration; the dissenting arbitrator, if any, shall not issue a dissenting opinion. Regarding each issue submitted to arbitration, the decision shall be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators may be entered in any court having jurisdiction thereof.

Should any legal action permissible under this agreement be instituted to enforce the terms and conditions of this agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses incurred at both the trial and appellate levels.

12. TERM, TERMINATION:
This agreement (Affiliate Member Agreement) shall run until the end of the current calendar year. It shall automatically be renewed on an annual basis unless terminated in one of the following ways:

A. By either party, by notifying the other in writing by November 30 of any given year that this agreement will not be renewed.

B. By WebXess, upon thirty (30) days' written notice, if Affiliate breaches any material and substantial provision of this agreement and has not cured by the end of the 30 days.

C. By WebXess, upon sixty (60) days' written notice, if

1. WebXess provides Affiliate with written notice of the specific reasons for its belief in this regard.

D. By WebXess, immediately upon giving written notice to Affiliate, in the event that

1. There are instituted bankruptcy or insolvency proceedings against Affiliate, which are not vacated within sixty (60) days from the date of filing;

2. Affiliate institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency; or

3. Affiliate makes an assignment of all or part of its assets for the benefit of creditors.

E. By WebXess immediately, if Affiliate attempts to assign all or any part of this Agreement without WebXess' prior written approval;

F. By WebXess immediately, if Affiliate fails to cause WebXess to be informed in writing immediately on the happening of any event specified in this section;

G. By Affiliate, immediately upon giving written notice to WebXess, if

1. There are instituted bankruptcy or insolvency proceedings against WebXess, which are not vacated within sixty (60) days from the date of filing;

2. WebXess institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency;

3. WebXess makes an assignment of all or part of its assets for the benefit of creditors; or

4. WebXess fails to cause Affiliate to be informed in writing immediately on the happening of any event specified in this section.

The provisions of paragraph survive any termination of this agreement.

13. NONASSIGNABILITY
Affiliate rights and obligations under this agreement may not be transferred or assigned directly or indirectly without the prior written consent of WebXess, which consent shall not be unreasonably refused.

14. PARTIAL INVALIDITY
If any provision of this agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. WebXess and Affiliate agree to re-negotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.

15. APPLICABLE LAW, JURISDICTIONAL MATTERS
This agreement takes effect when accepted by WebXess in Texas. It is to be governed by and construed under the laws of the State of Texas and the United States of America. The federal and state courts of the State of Texas shall have exclusive jurisdiction to adjudicate any non arbitrable dispute arising out of this agreement. Affiliate hereby expressly consents to (1) the jurisdiction of the courts of Texas and (2) service of process being effective upon it by registered mail sent to the address set forth at the beginning of this document, as may be changed from time to time by written notice actually received by WebXess. To the extent permissible by the law of Affiliate�s jurisdiction, Affiliate waives any requirement that service of process or of any documents be made upon it pursuant to the provisions of the Hague Convention.

16. NOTICES
Except with respect to service of process as set forth in paragraph , all notices may be sent by email, fax, or express mail to the email address, fax number, or address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained.

17. VIOLATIONS

Affiliate may not engage in unsolicited activities or "spamming" with regards to the Affiliate Program or WebXess / Webii. Affiliate may not utilize promotional tools for purposes of spamming. Affiliate should express discretion when using any promotional tools and accepts the responsibility to email in appropriate quantities and to appropriate parties. Any Affiliate conducting in the improper use of promotional tools or email regarding the Affiliate Program, WebXess, Webii, or an Affiliate�s id, will immediately be dismissed from the Program and will not be eligible for Referral Fees.

18. ENTIRE AGREEMENT; MODIFICATIONS
This agreement sets forth the entire agreement and understanding between the parties and merges all prior discussion between them. WebXess may make changes to this agreement upon thirty (30) days' written notice to Affiliate, advising of the change and the effective date thereof. Utilization of WebXess services by Affiliate and/or its customers following the effective date of such change shall constitute acceptance by Affiliate of such change(s). Otherwise, this agreement may not be modified except by the written consent of both parties.

IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, and in consideration of the covenants and agreements contained herein, do hereby execute this instrument, with each party warranting their ability to enter into this agreement for the person or entity herein named as a party hereto.