Affiliate and Agent Program Terms of Service

Last Updated: June 21, 2019

These Terms of Service set forth the terms and conditions that apply to your (“you”, “your”, and if accepted and applicable, “Affiliate”) membership or application for membership in the Files.com Affiliate and Agent Program (“Affiliate Program” or "Program"). The Affiliate Program is operated and offered by Action Verb LLC (“Files.com”, “we”, “us”, “our”). The Affiliate Program provides a commission (“Commission”) for qualifying referrals that sign up for a paid Files.com account (all products and services on and through Files.com collectively and singularly, the “Files.com Platform”, “Files.com”, or “Platform”), subject to the terms herein.

BY SUBMITTING AN APPLICATION TO JOIN OR BY PARTICIPATING IN THE AFFILIATE PROGRAM, YOU ARE CONFIRMING THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS TERMS OF SERVICE.

Participation Requirements

Your participation in the Affiliate Program is subject to your application, acceptance, and continued compliance with the following requirements:

  • Your submission of accurate information required by Files.com, including any necessary tax forms.
  • You must be at least eighteen (18) years of age.
  • The entity or person signing up for the account must reside in a country can send and receive money via Paypal.
  • Your execution and acceptance of the Affiliate Agreement.
  • You compliance with these Terms of Service.
  • To the extent applicable, your compliance with the Files.com Platform's Terms of Service, available here.

Application to the Program

To be considered for participation in the Affiliate Program, you must complete an application. To request an application, please contact our team.

Sending an application does not guarantee acceptance into the Affiliate Program. Acceptance into the Affiliate Program is at Files.com’s sole discretion.

If you are accepted by Files.com into the Affiliate Program, as explicitly denoted in writing, then you shall be considered an Affiliate, and bound by all applicable obligations and duties.

Promotion & Use of Files.com IP

Files.com shall provide a unique affiliate link (“Link” or "Affiliate Link") for you to direct referrals.

Except as explicitly permitted herein, you shall not and are not authorized to (i) use Files.com’s trademark, name or any of our other intellectual property (including, but not limited to, Files.com), including any variations or misspellings thereof or other term or terms confusingly similar to any of the foregoing (collectively, “Files.com IP”), without Files.com’s express prior written permission; (ii) use Files.com IP in a domain or website name, in any bids for keywords, Google Ads, in any search engine advertising (paid or otherwise), in any metatags, advertising, promotions, social media handles, social media, search terms, code, or otherwise; (iii) act in any way that causes or creates or could cause or create any "initial interest confusion" over the use of Files.com’s IP on the Internet, in any search engine advertising, or otherwise; (iv) use Files.com IP after termination of this Channel Partner and Reseller Program and/or your participating in the Channel Partner and Reseller Program; (v) use Files.com IP in any deragatory, defamatory, false, or negative manner, or in connection with any obscene, immoral, controversial, and/or defamatory material; (vii) as part of any bulk unsolicited email campaigns, robocalls, or similar actions; and/or, (viii) take any action that suggests or implies Files.com endorses or favors you.

Your use of Files.com IP in any manner, other than as expressly permitted hereunder, shall constitute unlawful infringement of Files.com’s intellectual property rights, and may subject you to claims for damages, and the obligation to pay Files.com’s legal fees and costs in connection with any action or proceeding in which Files.com seeks to enforce its rights under this Terms of Service or with regard to any of Files.com’s intellectual property rights.

Discounts and Coupons

You are not allowed to post any refunds, credits or discounts of the Files.com Platform, or other content relating to Files.com or Files.com without Files.com’s prior written consent in each instance. Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Program.

We require all Affiliates to comply with applicable laws, regulations and guidelines, including without limitation, the Federal Trade Commission’s (“FTC”) endorsement and disclosure rules and guidelines.

Affiliate shall comply with all applicable data protection laws regarding the transmission of data exported to or from the United States or the country in which Affiliate resides, including without limitation, the General Data Protection Regulation 2016/679 of European Parliament and of the Council of 27 April 2016 (the “GDPR”).

You are advised to seek and obtain your own legal advice on determination and application of applicable rules, regulations, and laws related to your participation in the Affiliate Program.

Qualifying Referrals

“Qualifying Referral” means each new and unique qualified customer (as further detailed below) referred from Affiliate through their Affiliate Link that results in a trial signup within 30 days of the Link last being visited and receipt of payment from that customer before the expiration of their trial.

To the extent permitted by law and the customer in each instance, and subject to any applicable browser settings, Files.com agrees to place a cookie to track any trial signup made by a customer within 30 days of the last visit via the Link. Files.com shall not responsible for any lost or missed Commissions resulting from customers modifying or blocking cookies.

In the event of a qualified customer visiting via multiple referral links, the most recent referral link shall receive the full Commission (as defined below).

A Qualifying Referral shall NOT include:

  • A purchase by a customer that has transferred from any Files.com partners or subsidiaries.
  • A purchase by a customer who is also associated with any Files.com reseller, referral, or other program.
  • A purchase by a customer that is not up to date on its payments or is subject to a refund, referral, or other program.
  • A purchase by a customer that has been an Files.com customer within the past 12 months.
  • A purchase that was completed prior to the Affiliate joining the Affiliate Program or was not tracked properly through an Affiliate Link.
  • A purchase that Files.com suspects, in its sole discretion, is the result of fraud, which shall include but is not limited to, the use of software that generates real and fictitious information, multiple accounts from the same customer, or the referral of accounts that do not comply with this Terms of Service.
  • A purchase referred by an Affiliate that has an excessive or abnormal cancellation rate as determined in Files.com’s sole discretion.
  • A purchase by a customer who was offered or received unauthorized coupons, refunds, credits or discounts from the Affiliate.

Commissions

Files.com shall pay Affiliate a commission (“Commission”) at a rate set forth in the Partner Portal.

Commissions shall be paid once per week for any unpaid Qualifying Referral(s).

Payment may be made by PayPal or ACH. It is your responsibility to keep the PayPal address or other payment information up to date.

Files.com is not responsible for any third party fees charged by PayPal or any similar financial intermediaries.

In the event of a dispute about about a Commission, Affiliate must notify Files.com in writing within 45 days of the disputed Commission or 45 days of when Affiliate believed a Commission should have first been earned. After this 45 day window, Affiliate waives and forfeits any right or claim to such a Commission or modification thereto.

Files.com will not issue payments in amounts smaller than $100 USD or its foreign currency equivalents. If you are owed less than $100 USD or its foreign currency equivalent, those funds will be rolled over until you reach at least $100 USD or its foreign currency equivalents. If you never crosses the $100 threshold, your commissions will not be realized or paid.

Files.com may, in its sole discretion, determine any purchase by a referred customer to be invalid for any reason, including but not limited to, fraud. Any earned Commissions where a customer cancels within 120 days of the initial order shall automatically be deemed invalid.

Files.com reserves the right to charge back to your account any previously paid Commissions that are later determined to be invalid. If you have an outstanding balance due to Files.com under this Agreement or any other agreement, whether or not related to the Affiliate Program, Files.com may offset any such amounts due from amounts payable to you under this Agreement.

Non-Disparagement

To the extent permitted by law, Affiliate agrees to not misrepresent, present in a false light, defame, disparage, or otherwise say anything negative about Files.com, Files.com, or any related property, platform, IP, or item.

Agents and Access

Affiliates will not have access to any site, data, or additional information about any customers they refer. However, Files.com may provide limited access to approved agents.

Relationship of the Parties

You and Files.com are independent contractors, and nothing in this Terms of Service will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf.

Dispute Resolution and Jurisdiction

Files.com wants to address your concerns without needing a formal legal case. Before filing a claim against Files.com, you agree to try to resolve the dispute informally by contacting dispute@actionverb.com. Files.com will try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 30 days of submission, you or Files.com may bring a formal proceeding. Any dispute arising under these Terms of Service that is not resolved informally as outlined above, will be subject to binding arbitration by a single arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the United States and the State of Nevada. The arbitration will be held in Las Vegas, Nevada, United States. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any court of competent jurisdiction.

To the fullest extent permitted by applicable law, you and we agree that any Dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, collective, or representative action. To the fullest extent permitted by applicable law, you further agree that you will not be a member of any putative or actual class in a class action brought by anyone else, nor will you seek to become a class representative. If any portion of this paragraph is found to be void or unenforceable as to a particular claim, then that claim (and only that claim) shall be resolved in federal court rather than in arbitration; if there is no federal jurisdiction, the case shall be resolved in Nevada state court.

In the event that you are able to sufficiently demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Files.com may, but is not obligated to, mutually agree to have the arbitration conducted by telephone, based on written submissions, in person in the county where you live, or at another mutually agreed location.

Any cause of action or claim you may have arising from or relating to the Affiliate Program or these Terms of Service must be commenced within one (1) year after the claim or cause of action arises or it will be barred forever. Notwithstanding the other provisions in this section, if Files.com has a reasonable basis to believe that you have in any manner violated or threatened to violate any of Files.com’s intellectual property rights, Files.com may bring suit in any state or federal court in the state of Nevada, rather than through arbitration. In such instances, you agree that you will submit to the jurisdiction of the state and federal courts in the state of Nevada.

Indemnification

Upon request by Files.com, you agree to defend, indemnify, and hold Files.com, its affiliates, subsidiaries, successors, and assigns, and each of their respective employees, contractors, officers, directors, owners, board members, and agents harmless from all liabilities, claims, damages, losses, and expenses, including attorney’s fees, that arise from or relate to: (i) your use or misuse of the Affiliate Program and/or Platform; (ii) your breach of these Terms of Service, or any other agreement with Files.com relating to the Affiliate Program and/or Platform; (iii) your illegal and/or fraudulent activity; and/or (iv) your negligence and/or willful acts or omissions. These indemnity obligations shall include any and all users (with whom you will be jointly and severally liable) and actions occurring on or through your Affiliate and/or Platform account.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL Files.com OR ITS AGENTS BE LIABLE FOR: (1) ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO THOSE THAT RESULT FROM THE USE OF, OR INABILITY TO USE THE SITE AND/OR SERVICE, INCLUDING ANY HARDWARE. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF Files.com HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND/OR (2) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR OTHER INACCURACIES OF THE AFFILIATE PROGRAM, PLATFORM, OR RELATED SERVICES. IN NO EVENT SHALL Files.com’S AGGREGATE LIABILITY EXCEED TEN THOUSAND DOLLARS ($10,000). TO THE EXTENT THE LIMITATION OF LIABILITY FROM THE PLATFORM'S TERMS OF SERVICE APPLY, THE LESSER OF THE TWO LIMITATIONS SHALL CONTROL, AND IN NO EVENT SHALL THEY BE COMBINED.

Disclaimer of Warranties

The Platform and Affiliate Program are provided on an "AS-IS, AS-AVAILABLE" basis. Files.com does not warrant that the Platform or Affiliate Program will be uninterrupted or error-free or that defects in it will be corrected. Any use is at your own risk. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, HARDWARE, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE AFFILIATE PROGRAM AND PLATFORM ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE. THE AFFILIATE PROGRAM AND PLATFORM ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. Files.com AND ITS AGENTS DO NOT WARRANT THAT THE PLATFORM OR AFFILATE PROGRAM IS ACCURATE, RELIABLE OR CORRECT; THAT THE AFFILIATE PROGRAM OR PLATFORM WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE AFFILIATE PROGRAM OR PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE AFFILIATE PROGRAM AND/OR PLATFORM IS SOLELY AT YOUR RISK.

Violation of Terms

Files.com reserves the right to withhold Commissions and cancel your participation in the Affiliate Program for any reasons, including, but not limited to, should we determine, in our sole discretion, that: (i) you are not in compliance with any of terms herein; and/or (ii) you are misusing, abusing, and/or falsifying any information, referral, or other data provided by or in connection with you.

Termination or Modification of the Affiliate Program

Files.com reserves the right to modify or terminate the Affiliate Program at any time, without notice. Upon termination, the provision contained in the sections entitled Promotion & Use of Files.com IP; Non-Disparagement; Dispute Resolution and Jurisdiction; Indemnification; Limitation of Liability; COnfidentiality; and Additional Terms shall survive termination.

Additionally, Files.com may terminate its relationship with any Affiliate at any time for any reason.

Termination, Suspension, or Modification of the Files.com Platform

Files.com reserves the right to modify, suspend, or terminate the Files.com Platform at any time, without notice. Nothing herein shall limit Files.com's rights or, if applicable, your obligations under the Platform's Terms of Service.

Confidentiality

Each of the parties hereto agrees that all information that a reasonable person may consider confidential, including, without limitation, the terms of the Affiliate Agreement, business and financial information, and pricing and sales information, (collectively and individually, "Confidential Information") shall remain strictly confidential and shall not be utilized for any purpose outside the explicit scope of the Affiliate Agreement or this Terms of Service. Additionally, each party shall take reasonable steps to ensure the safekeeping of any Confidential Information. Confidential Information shall not include information (i) already lawfully known to or independently developed by the receiving party; (ii) generally known to the public; (iii) lawfully obtained from any third party who did not violate any confidentiality agreements to procure the information. Notwithstanding the foregoing, each party may reveal Confidential Information about the other party in response to a valid subpoena from a court, agency, or tribunal of competent jurisdiction provided that, if permitted by law, the revealing party makes a good faith effort to notify the other party in writing so that the other party may challenge such a request.

Additional Terms

If any provision of this Terms of Service is found to be invalid by any court, arbitrator, or tribunal having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Terms of Service, which shall remain in full force and effect. Additionally, the provision(s) found to be invalid shall be replaced with a new provision(s) that closely as possible captures the intention of original section while being compliant.

No waiver of any part of this Terms of Service shall be deemed a further or continuing waiver of such term or any other term.

Nothing in this Terms of Service shall be deemed to confer any third party rights or benefits.

Files.com may freely sublicense, assign, or confer any of its duties, rights, or obligations hereunder to any third party.

Titles and headers are provided for convenience and reference only, and shall not affect the construction or intent of any section of this Terms of Service.

All use of the Files.com Platform, whether by you or any referred customers, is subject to the Files.com Terms of Service, available here.

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