Affiliate Program Terms and Conditions

Affiliate Program Agreement

This Affiliate Program Agreement (the “Agreement”) is entered into by and between OpenPhone Technologies, Inc., a Delaware corporation, (“OpenPhone”) and you, the business entering into this Agreement (“Affiliate”). This Agreement governs the terms of OpenPhone’s Affiliate Program (the “Affiliate Program”). BY APPLYING TO THE AFFILIATE PROGRAM, AFFILIATE IS AGREEING TO BE BOUND BY THIS AGREEMENT AS WELL AS OPENPHONE’S TERMS OF SERVICE AND PRIVACY POLICY.

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• Referral Arrangement. By accepting this Agreement and participating in the Affiliate Program, Affiliate may, from time to time, refer new prospective customers (the “New Customers”) to OpenPhone on a non-exclusive basis. OpenPhone will pay Affiliate a “Referral Fee” for each Qualified Referral. A “Qualified Referral” occurs where a New Customer both: (a) signs up for the OpenPhone services directly using Affiliate’s dedicated “Affiliate Link” provided by OpenPhone and (b) converts to a paid OpenPhone account directly following the New Customer’s access to the OpenPhone services following the use of Affiliate’s dedicated Affiliate Link. Further, a New Customer referred by Affiliate will only be eligible to be a “Qualified Referral” if the New Customer (i) is not an existing customer, (ii) has not been previously contacted about OpenPhone’s services, (iii) has not been previously referred to OpenPhone by a third party, or (iv) has some of the same company details, including but not limited to email domain, with another customer of OpenPhone. OpenPhone, in its sole discretion, will determine the classification of any referral as a “Qualified Referral.”
  
  Affiliates who have some of the same personal/company details, which may include but is not limited to, last name, email address, IP address, website details, or commission payment details, as their referred applicant will be deemed to have made a “Self-Referral.” Referral commission and any earnings associated with a “Self-Referral” will not be paid. OpenPhone, in its sole discretion, will determine the classification of any referral as a “Self-Referral.”
  
  A referral made to an already existing Qualified Referral referred by a third party will be considered a “Current Customer Referral”. Affiliate will not receive a Referral Fee or any other compensation for a Current Customer Referral.
• Referral Fees. For each Qualified Referral, Company shall pay Affiliate a “Referral Fee” as specified here. For specific payout information, including the calculation of the Referral Fee, also see here. By accepting this Agreement and participating in the Affiliate Program, Affiliate agrees it is bound by the terms set forth at openphone.partnerstack.com.
• Payments. Payments in the Affiliate Program are handled by PartnerStack (the “Payment Provider”). In order to receive payments, Affiliate must create and maintain an account with Payment Provider in the Payment Provider’s online or app-based dashboard (“Payment Provider Platform”), which is provided pursuant to terms directly between Affiliate and the Payment Provider. Affiliate must keep all information updated and complete within the Payment Provider Platform to receive proper payments. Payments returned due to incorrect payment email addresses or other incorrect information will not be returned. The Payment Provider Platform will reflect payment history to Affiliate, and the parties agree that: (a) the data shown in the Payment Provider Platform will govern payments to be made, subject to OpenPhone’s right to correct errors based on its own records and (b) records and payments will be deemed complete, incontestable, and final twelve (12) months after the applicable Qualified Referral occurs.
• Marketing. Affiliate shall bear Affiliate’s own costs and expenses related to marketing and promoting the Affiliate Program. OpenPhone is not obligated to reimburse or credit Affiliate for any marketing expenses.
  
  Affiliate may not engage in any of the following activities and represent and warrant that Affiliate’s practices do not violate any of these restrictions:
• ~Affiliates shall not make any false, misleading, or disparaging statements with respect to the Affiliate Program, OpenPhone, its employees, its customers, its Services (as defined in OpenPhone’s Terms of Service), or its other affiliates.
• ~Affiliates shall not create websites or advertisements that copy, imitate, or resemble the look and feel of OpenPhone’s Services or the Affiliate Program. Affiliates shall not copy OpenPhone's website or any portions thereof, including, without limitation, any of OpenPhone's trademarks or other intellectual property, and display them on their own site or subdomain or use them in any way without OpenPhone's prior express written consent.
• ~Affiliates shall not offer cash back, coupons, rewards or other incentives as part of their marketing efforts for the Affiliate Program.
• ~Affiliates shall not use traffic that is generated by, including, but not limited to, pop-up/under, spam, purchased traffic, or similar methods without prior written consent from OpenPhone.
• ~Affiliates shall not use cookie stuffing techniques that set the tracking cookie without the potential customer actually clicking on the Affiliate’s dedicated Affiliate Link.
• ~Affiliates are responsible for ensuring their tracking codes are working properly before sending traffic to OpenPhone's servers. Any modification to the links is the sole responsibility of the Affiliate. Referral Fees may be withheld, as determined in OpenPhone’s sole discretion, for tracking errors caused by editing, masking, redirecting or tampering with Affiliate Links.
• ~Affiliates shall not bid on or use OpenPhone's trademarks or misspelled keywords for the purpose of pay-per-click on internet search engines without prior written consent from OpenPhone.
• ~Affiliates shall not use OpenPhone's trademarks or misspelled keywords in their domain names.
• ~Affiliates shall not use redirected pages and links to send a potential customer to OpenPhone’s website.
• ~Affiliates shall not engage in domain forwarding (i.e. purchasing a domain and setting it to forward directly to OpenPhone’s website using an Affiliate Link).
• ~Affiliates shall not engage in the advertisement of business-opportunity websites or use marketing practices that attract fraudulent or short-term customers.
• ~Affiliates shall not engage in any marketing activity that may harm the reputation or credibility of OpenPhone, including using low-quality marketing materials, or advertising on any website that promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal activities, or violates the intellectual property or other rights of a third party.
• ~Affiliates shall not send any email in violation of the federal CAN-SPAM statute, 15 U.S.C. 1571, et seq.
• ~Affiliates must include a physical mailing address and unsubscribe information for any marketing email sent promoting the Affiliate Program.
• ~Affiliates shall make clear that they, not OpenPhone, are the sender of all marketing communications related to the promotion of the Affiliate Program.
• ~Affiliates shall not engage in any marketing or promotional activities that violate applicable laws, rules, or regulations, including without limitation, the Federal Trade Commission (FTC) Endorsement Guides, which requires disclosure of communications between advertisers and sponsors.
• ~Affiliates shall not market using facsimile, broadcast, telemarketing, text message marketing, or other offline marketing methods regarding OpenPhone or the Affiliate Program without the express written consent of OpenPhone.
• ~Affiliates shall not use malware or spyware to market or promote the Affiliate Program.
  
  OpenPhone reserves the right to withhold Affiliate’s Referral Fee(s) and/or terminate the relationship if Affiliate does not comply with any of the foregoing guidelines.
• No License Grant. Nothing in this Agreement grants Affiliate, by implication, estoppel or otherwise, any license or other right under any intellectual property rights of OpenPhone. Except as expressly authorized hereunder, Affiliate shall not and is not permitted to (i) use the OpenPhone trademark, name, logo or any of OpenPhone’s other intellectual property, including without limitation, the links, and the licensed materials (collectively, the “OpenPhone IP”) (or any misspellings or variations thereof or other term or terms similar to any of the foregoing) without OpenPhone’s express prior written permission; (ii) use OpenPhone IP in a domain or website name, in any bids for keywords or Google AdWords (or similar programs at other search engines), in any search engine advertising (paid or otherwise), in any metatags, Google AdWords (or similar programs at other search engines), search terms, keywords, code, or advertising; (iii) act in any way that causes or could cause, creates or could create an “initial interest confusion” over the use of OpenPhone IP on the internet or in any search engine advertising. Affiliate’s use of OpenPhone IP in any manner, other than as expressly permitted hereunder shall constitute unlawful infringement of OpenPhone’s intellectual property rights, and may subject affiliate to the claims for damages (including potential damages for knowing or willful infringement), and the obligation to pay OpenPhone’s legal costs and fees in connection with any action or proceeding in which OpenPhone seeks to implement its rights under this agreement or in regard to any of OpenPhone’s intellectual property rights.
• Termination. Each party may, in its sole discretion, terminate this Agreement at any time, with or without cause, upon fifteen (15) -day notice to the other party. OpenPhone reserves the right to terminate this Agreement immediately and not pay the accrued balance to Affiliate if Affiliate has been deemed to breach OpenPhone’s Terms of Service or this Agreement or engage in any conduct that OpenPhone deems to be illegal, improper, unfair, or otherwise adverse or detrimental to OpenPhone.
  
  In OpenPhone’s sole discretion, affiliate accounts generating a large number of fraudulent accounts or that are associated with any false or misleading advertising or suspected fraudulent activity will be deactivated.
  
  Upon termination, all rights granted to Affiliate shall immediately terminate.
• Relationship between Affiliate and OpenPhone. Neither this Agreement nor Affiliate’s participation in the Affiliate Program creates any employment, independent contractor, agency, partnership, or joint venture relationship between Affiliate and OpenPhone. Affiliate has no authority to bind OpenPhone and Affiliate shall not make any agreements, warranties or representations on OpenPhone’s behalf.
• Confidentiality. During the course of Affiliate’s participation in the Affiliate Program, it may be necessary for OpenPhone to share proprietary and/or confidential information with Affiliate, including, but not limited to trade secrets and non-public industry knowledge (the “Confidential Information”). Affiliate will not disclose any Confidential Information with any third party at any time. Affiliate will also not use any Confidential information for Affiliate’s or a third party’s personal benefit at any time. This section shall remain in full force and effect even after termination.
• Assumption of Risk. Affiliate is solely responsible for ensuring that Affiliate’s participation in the Affiliate Program complies with applicable law and does not violate the rights of any third party, including, without limitation, intellectual property rights. Affiliate assumes all liability for any claims, suits or grievances filed against Affiliate, including, but not limited to, all damages related to participation in the Affiliate Program.
• LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, OPENPHONE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, SUPPLIERS, AND ANY THIRD PARTY INFORMATION PROVIDERS TO THE SITES, SHALL NOT BE LIABLE UNDER CONTRACT, TORT OR ANY OTHER LEGAL THEORY, FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM AFFILIATE’S PARTICIPATION IN THE AFFILIATE PROGRAM. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, OPENPHONE SHALL NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH AFFILIATE’S PARTICIPATION IN THE AFFILIATE PROGRAM. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, OPENPHONE SHALL NOT BE LIABLE TO ANY PARTY FOR CLAIMS ARISING OUT OF OR IN CONNECTION WITH AFFILIATE’S PARTICIPATION IN THE AFFILIATE PROGRAM. TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, OPENPHONE’S SOLE OBLIGATION TO AFFILIATE FOR DAMAGES SHALL NOT EXCEED THE AMOUNT OF COMMISSIONS AFFILIATE EARNED OVER THE TWELVE (12) MONTHS PRECEDING THE CLAIM(S), UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW.
• Indemnification. Affiliate agrees to indemnify, defend, and hold harmless OpenPhone, its officers, directors, employees, agents, licensors, suppliers, and any third party information providers to the Services from and against all claims, losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of this Agreement by Affiliate or arising from or related to Affiliate’s use or misuse of the Affiliate Program.
• Third Party Rights.The sections titled Limitation of Liability and Indemnification are solely for the benefit of OpenPhone and its present and future officers, directors, employees, agents, licensors, suppliers, and any third-party providers to the Services. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against Affiliate on their own behalf. Except as set forth herein, nothing express or implied in this Agreement is intended or implied to confer, and nothing herein shall confer, any rights, remedies, liabilities, or obligations whatsoever upon any person or entity. Affiliate may not assign Affiliate’s rights under this Agreement without OpenPhone’s prior written consent.
• Unlawful Activity; Termination of Access. OpenPhone reserves the right to investigate complaints or reported violations of this Agreement and to take any action it deems appropriate, including but not limited to, reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties, and disclosing any information necessary or appropriate to such persons or entities. OpenPhone may discontinue Affiliate’s participation in the Affiliate Program at any time for any reason or no reason.
• Remedies for Violations. OpenPhone reserves the right to seek all remedies available at law and in equity for violations of this Agreement.
• Assignment. Affiliate shall not assign, transfer, or delegate any of Affiliate’s rights or obligations under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of OpenPhone. OpenPhone may freely assign this Agreement or any of its rights or obligations hereunder.
• Governing Law and Jurisdiction; Disputes and Arbitration. This Agreement is governed by and construed in accordance with the internal law of the State of California without regard to its principles of conflicts of laws. Any action arising out of or relating to this Agreement shall be filed only in the state or federal courts located in the County of San Francisco in the State of California, and Affiliate hereby consents and submits to the exclusive personal jurisdiction of such courts for the purpose of litigating any such action.
  
  Any dispute, controversy, proceeding, or claim arising out of or in connection with or relating to this Agreement, any of OpenPhone’s policies, or the Affiliate Program, in each case, whether in contract, tort, common or statutory law, equity or otherwise (collectively, a “Dispute”) shall be resolved by binding confidential arbitration by JAMS pursuant to its Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in San Francisco, California, unless Affiliate and OpenPhone agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall be deemed as preventing OpenPhone from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, dilution, or violation of our data security, intellectual property rights, or other proprietary rights.
  
  AFFILIATE AND OPENPHONE EACH AGREE TO WAIVE ITS RIGHT TO TRIAL BY JURY AND THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE ARISING HEREUNDER WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT AFFILIATE WILL NOT SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH AFFILIATE ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. AFFILIATE FURTHER AGREES THAT NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF OPENPHONE AND ALL PARTIES TO ANY SUCH PROCEEDING.
• Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM AFFILIATE MAY HAVE ARISING OUT OF OR RELATING TO THESE AFFILIATE TERMS AND CONDITIONS OR THE SITES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
• Entire Agreement; Severability of Provisions; No Waiver. This Agreement constitutes the entire agreement with respect to participation in the Affiliate Program. If any provision of this Agreement is deemed unlawful, void, or unenforceable by a court of law exercising proper jurisdiction, that provision shall be deemed severed from the remaining provisions and shall not affect their validity and enforceability. No waiver of any provision hereof shall be valid unless in writing signed by the parties. Any failure to enforce any right or remedy hereunder shall not operate as a waiver of the right to enforce such right or remedy in the future or of any other right or remedy.
• Changes to the Agreement. OpenPhone may review and update this Agreement, including the Referral Fee and other terms set forth at openphone.partnerstack.com, at any time in its sole discretion. OpenPhone shall notify Affiliate of any material changes to the Agreement. Affiliate’s continued participation in the Affiliate Program following notice of the revised Agreement means that Affiliate accepts and agrees to the changes, which are binding on Affiliate.
• Contact Us. If Affiliate has questions or concerns regarding this Agreement or the Affiliate Program, Affiliate may contact OpenPhone at hello@openphone.com.

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