Inter-Affiliate Assignment Agreement

  • Enrollment in the Affiliate Network To begin the enrollment process, you must submit a completed Affiliate Program Signup Form. The Signup Form can be found at https://www.netfirms.com/affiliate/gettingstarted.bml. We will evaluate Your application in good faith and will notify You of Your acceptance or rejection in a timely manner. We may reject Your application if We determine (in Our sole discretion) that Your site is unsuitable for Our Affiliate Program for any reason, including, but not limited to, inclusion of content that is, in Our opinion, unlawful or otherwise does not meet our Acceptable Use Policy located at https://www.netfirms.com/legal/legal_aup.bml. If We reject Your application, for any reason, You may not reapply to the Netfirms Affiliate Program utilizing the same domain name/URL if that domain name/URL has already been rejected nor may you reapply using a different domain/URL name then add the previously rejected domain name/URL. Netfirms, in its sole discretion, reserves the right to notify or to not notify any prospective affiliate of their rejection or removal from the Netfirms Affiliate Program at any time.
  • Promotion of Our Affiliate Relationship If You qualify and agree to participate as an Affiliate, We will make available to You a variety of graphic and textual links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which are subject to the terms and conditions hereof. The Links will serve to identify Your site as a member of the Netfirms Affiliate Program and will establish a Link from Your site or e-mail to Ours. The Links may connect to any area of Our site (although commissions will only be issued on Qualified Purchases). In utilizing the Links, You agree that You will cooperate fully with Us in order to establish and maintain such Links. You also agree that You will display on Your site only those graphic or textual images (indicating a Link) provided by Us or text messages expressly approved in advanced in writing by Netfirms. All Affiliate Sites shall display such graphic and/or textual images prominently in relevant sections of their site. Furthermore, you agree not to use cookie stuffing techniques that set the affiliate tracking cookie without the Referred Customer's knowledge. (example: iframe). Any information with respect to Us that is going to be displayed on Your site must be provided by Us and expressly approved by Us in writing in advance of any display. EXCEPT AS PERMITTED ABOVE OR IN SECTION 13 BELOW, YOU SHALL NOT AND ARE NOT AUTHORIZED TO (i) USE THE Netfirms TRADEMARK, NAME OR ANY OF OUR OTHER INTELLECTUAL PROPERTY (OR ANY VARIATIONS OR MISSPELLINGS THEREOF OR OTHER TERM OR TERMS CONFUSINGLY SIMILAR TO ANY OF THE FOREGOING) (ALL OF THE FOREGOING, INCLUDING WITHOUT LIMITATION, THE "LINKS" AND THE "LICENSED MATERIALS" (DEFINED BELOW), ARE REFERRED TO HEREIN AS "OUR IP"), WITHOUT OUR EXPRESS PRIOR WRITTEN PERMISSION; (ii) USE OUR 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), KEY WORDS, ADVERTISING, SEARCH TERMS, CODE, OR OTHERWISE; (iii) CAUSE OR CREATE OR ACT IN ANY WAY THAT CAUSES OR CREATES OR COULD CAUSE OR CREATE ANY "INITIAL INTEREST CONFUSION" OVER THE USE OF OUR IP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. YOUR USE OF OUR IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER (IN ADDITION TO BEING A BREACH OF THIS AGREEMENT) SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF OUR TRADEMARKS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS, AND MAY SUBJECT YOU TO CLAIMS FOR DAMAGES (INCLUDING WITHOUT LIMITATION, TREBLE DAMAGES FOR KNOWING OR WILFUL INFRINGEMENT), AND THE OBLIGATION TO PAY OUR LEGAL FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH WE SEEK TO ENFORCE OUR RIGHTS UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF OUR INTELLECTUAL PROPERTY RIGHTS. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. You are not allowed to post any refunds, credits or discounts, or other content concerning Netfirms, unless We have given You prior written permission in each instance. Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Program using banners and links. Each Link connecting users of Your site to the pertinent area of Our site will in no way alter the look, feel, or functionality of Our site. Any violations of the terms surrounding links, coupons, refunds, credits or discounts shall constitute a material breach of this Agreement, and may result in Your termination from the program or withholding of Commissions.
  • FTC Endorsement Compliance

    It is the intent of Netfirms to treat our customers fairly and to comply fully with all Federal Trade Commissions regulations related to advertising. As such, we require our affiliates to comply with these regulations. This includes, but is not limited to, Federal Trade Commission 16 CFR Part 255: Guides Concerning the Use of Endorsements and Testimonials in Advertising, which requires, among other criteria, that material connections between advertisers and endorsers be disclosed. This means that directories, review/rating sites, blogs and other websites, email or collateral that purport to provide an endorsement or assessment of an advertiser (in this case Netfirms) must prominently disclose the fact financial or in-kind compensation is provided from the advertiser.

    For more information and suggestions about how to comply with these guidelines, please visit our page entitled "Affiliate Disclosure Requirements and Examples." (Please note: this page is only intended to provide guidance. It does not purport to provide legal advice, nor does it guarantee that you'll be in compliance with FTC regulations should you follow the suggestions presented there.) You are advised to seek and obtain your own legal advice on how these rules apply to your website or other promotional activities for which you receive compensation.

    Netfirms reserves the right to withhold commission fees and cancel the affiliate relationship with you should we determine, at our discretion, that you are not in compliance with the previously mentioned guide or other FTC regulations/guides we deem relevant.

  • Order Processing We will process orders placed by Referred Customer who follow the Links from your website to netfirms.com and netfirms.ca. We reserve the right, in our sole discretion, to reject orders that do not comply with certain requirements that we may establish from time to time. All aspects of order processing and fulfillment, including Netfirms service, cancellation, processing, refunds and payment processing will be our responsibility. We will track the Qualified Purchases generated by your website and will make this information available to you through our website. To permit accurate tracking, reporting, and Commission accrual, you must ensure that the Links between your website and our website are properly formatted.
  • Commission Determination Under the Affiliate Program, you will be paid a Commission Fee for each Qualified Purchase by a Referred Customer that you refer to Netfirms under and in accordance with the terms of this Agreement. Each Referred Customer and each Qualified Purchase must meet the following criteria (the "Criteria"):
    • Each Referred Customer must be a new and unique visitor to Netfirms and must register by completing and submitting the Registration Form using a valid and unique account and billing information.
    • Commission may not be paid for a Referred Customer that has transferred from any of our partners or subsidiaries.
    • Each Referred Customer must make a Qualified Purchase, and provide a valid payment for the purchased Netfirms Products or Services. To generate a Commission Fee for you, each Referred Customer must be an active, qualified customer of Netfirms and must be up-to-date in all payments at the time the Commission Fees are processed and not have been subject to a refund, credit, cancellation, suspension or chargeback.
    • Each Referred Customer must sign up in a manner, which in our sole judgment, definitively establishes that the Referred Customer was referred directly from you to Netfirms under this Agreement.
    • Each Referred Customer must remain in compliance with our Terms of Service, Acceptable Use Policy and other policies that are active at the time the Commission Fees are processed.
    • Commission Fees may not be paid for the Qualified Purchase if the Referred Customer has been offered or received coupons, refunds, credits or discounts from the Affiliate or if the Referred Customer has joined a business-opportunity program (as determined by Netfirms in its sole discretion) that is managed or participated in by the Affiliate, unless Netfirms has provided its prior written permission.
    • If a Referred Customer has received a popup with a discounted offer, while leaving our site during their purchase, we will NOT pay commissions on purchase.
    Netfirms reserves the right to withhold initial Commissions Fees for Affiliates who are new to the Affiliate program, or who have commissions that are potentially fraudulent as determined by Netfirms in its sole discretion, to determine the legitimacy and cancellation rates of Referred Customers. Netfirms reserves the right to suspend payment of Commission Fees at any time and indefinitely, if it suspects fraud or other improper activity or a potential breach of any of the terms in this Agreement by the Affiliate or a Referred Customer(s). Netfirms reserves the right to deduct from Affiliate's current and future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, and cancelled Netfirms purchases. Where no subsequent Commission Fee is due and owing, Netfirms will send Affiliate a bill for the balance of such refunded purchase upon termination of the program or termination of the Referred Customer. Netfirms, in its sole discretion, reserves the right to withhold indefinitely any Commission Fee, and/or to reverse, deny or reject any Commission Fee, for:
    • Any account/sale which has not been in an approved status in good standing as an account of Netfirms for a period of at least thirty (30) days.
    • All commissions generated for accounts that may be fraudulent, including but not limited to the use of software that generates real and fictitious information.
    • If we deem orders to be fraudulent or see a pattern of potentially fraudulent activity, including, without limitation, where there are multiple accounts from the same customer, or referral of accounts which do not comply with this Agreement. We review account information (including site content) to assess referrals.
    • Altering Our Links in any way.
    • Referred Customers that have been offered or received coupons, refunds, credits or discounts from the Affiliate or for Referred Customers who have joined a business opportunity program that is managed or participated in by the Affiliate, unless Netfirms has provided written permission.
    • Customers engaging in "Domain Speculation," which is determined by the identification of two (2) web hosting accounts with the same Referred Customer's name, email address, or other identifying characteristic as determined by Netfirms and/or the identification of two (2) or more web hosting accounts that have no content on their websites or have similar content, templates or formatting, as determined by Netfirms.
    • Affiliates whom we believe may be artificially submitting Referred Customers, engaging in the advertisement of business-opportunity sites (as determined by Netfirms in its sole discretion), using marketing practices that we deem to be unethical or likely to attract fraudulent signups and/or signups with a very low likelihood of renewal.
    Netfirms reserves the right to immediately cancel or withhold for later review any Commission Fee based on the foregoing or that otherwise fails to meet the Criteria. It is the responsibility of the Affiliate to monitor the payment, denial and withholding of Commission Fees; Netfirms is not obligated to actively notify Affiliates of the status of Commission Fees. If an Affiliate has a question about a Commission Fee that has been cancelled or withheld, that Affiliate has 30 days from the day the payment was due to contact Netfirms to discuss or reclaim the Commission Fee. Any changes to decisions about cancelled or withheld Commission Fees are strictly at Netfirms' discretion. Commissions for any Referred Customer who is associated with any Netfirms reseller, referral or other program may be removed from your payment. In other words, You may not receive double commissions or compensation. In the event that the Referred Customers that are referred to Netfirms by a specific Affiliate are determined to have an excessive cancellation rate (as determined by Netfirms in its sole discretion), Netfirms reserves the right to withhold or decline pending and future Commission Fees for the Affiliate. Any attempt by an Affiliate to manipulate, falsify or inflate Referred Customers, Qualifying Purchases or Commission Fees to intentionally defraud Netfirms or violation of any of the terms of this Agreement constitutes immediate grounds for Netfirms to terminate this Agreement and will result in forfeiture of any Commission Fees due to you.
  • Commission Fee Accrual and Payments

    Subject to the terms of this Agreement, we will pay a Commission Fee equal to the specified percentage or dollar amount set forth in the Commission Report in Your Affiliate Console on a Qualified Purchase by a Referred Customer which occurs during the month for which such Commission Fee is being calculated.

    Commission Fees will be processed approximately 15 to 30 days after the end of the month in which they accrued as set forth below.

    Commissions will accrue and only become payable once you (i) provide all relevant tax and address documentation pursuant to Section 8 below and (ii) reach a commission level of $50 (the "Commission Threshold") based on the commission rates stated on the Netfirms website, all as applied only to Qualified Purchases which occurred within three (3) months of the end of the calendar month in which the Qualified Purchases occurred. For example, if you provide sign-ups which result in Qualified Purchases that meet the Commission Threshold on January 10th, you must provide all relevant tax and address documentation by April 30th of the same year in order for Commission Fees to accrue and become payable. All Qualified Purchases eligible to result in Commissions under this Section 6 must remain active and in good standing pursuant to the terms of this Agreement in order to remain eligible for accrual. Once a Commission has accrued under this Section 6, the amount of such Commission shall be due and payable to you under the terms of Section 7. Netfirms reserves the right to change the Commission Threshold by amending this Agreement and will notify you for any such amendment pursuant to the terms of this Agreement.

  • Payment Forms/Types

    Commission Fees shall be paid based on the current information in Your Affiliate profile. Please notify us promptly of any change in your address by updating your profile information in the Affiliate console. You are responsible for informing Netfirms of Your desired Payment form/type:

    You are responsible for informing Netfirms of Your desired Payment form/type:

    • You may choose to receive Commission Fees in the form of check made out in U.S. currency if you do not live in:
      • any of the countries listed in our Acceptable Use Policy prohibited by regulations of the U.S. Office of Foreign Assets Controls ("OFAC"),
      • or if you live in any of the following countries: China, Nigeria, Vietnam, India, Egypt, Ghana, Indonesia, Lebanon, Macedonia, Morocco, Pakistan, Romania, Somalia, Ukraine, Russia, Bulgaria, Lithuania, Israel, Turkey or Yugoslavia.
      • This list of countries is subject to change by Netfirms at any time;
    • You may choose to receive Commission Fees in the form of credit to your Netfirms hosting account. If you elect to receive Commission Fees in the form of account credit, a check will not be mailed. Netfirms will credit your account in the amount of your Commission Fee, as defined in this Agreement;
    • When available, You may choose to receive Commission Fees in the form of a PayPal payment. Please refer to PayPal's policy to ensure you are eligible to receive payment if you reside outside of the United States. https://www.paypal.com/cgi-bin/webscr?cmd=_display-approved-signup-countries-outside

    Netfirms is not responsible for any third-party fees charged by PayPal, bank or other financial institute used to receive Affiliate Commission Fees.

    Check payments will only be reissued within 120 days of original issue date in the case of a lost check or stop-payment request. After 120 days, the payment will be voided. Check cancellation fees may be applied. PayPal payments will only be reissued within 120 days of original issue date in the case of incorrect paypal address or refusal from paypal to accept payment. You can update or change desired payment form at any time by updating your Affiliate Profile located in the Affiliate Console. Changes to desired payment form may take up to two payout cycles to take effect. Netfirms, in its sole discretion, reserves the right to modify the terms of this Commission payment method or schedule at any time. Such changes shall take effect when posted. Disputes: Affiliate has access to Netfirms's real-time Affiliate Program statistics and activity and specifically agrees to file any tracking or commission disputes as well as any other disputes and discrepancies within 45 days after the end of the month in which the sale or event that is disputed occurred. Disputes filed after 45 days of the date on which the Qualified Purchase occurred will not be accepted by Netfirms and Affiliate forfeits forever any rights to a potential claim.
  • Taxes/Address Changes It is Your responsibility to provide Netfirms with accurate tax and payment information that is necessary to issue a Commission Fee to You. If Netfirms does not receive the necessary tax or payment information within 90 days of a Qualified Purchase which would otherwise trigger Commission Fees, the applicable commissions shall not accrue and no Commission Fees will be owed with respect to such Qualified Purchase. Each Affiliate is required to submit a W8/W9 tax form. You are responsible for the payment of all taxes related to the commissions you receive under this Agreement. In compliance with U.S. tax laws, Netfirms will issue a Form 1099 to Affiliates whose earnings meet or exceed the applicable threshold You are responsible for informing Netfirms about changes to postal and e-mail addresses, as well as any changes to your name, email address, contact information, tax identification number, or other personal information that will impact Netfirms's ability to issue a valid Commission payment. Any address changes must be made in the Affiliate profile in the Affiliate Console at least 15 business days prior to the end of the calendar month in order for Commission Fees for that month to be sent to the revised address.
  • Reports of Qualified Purchases You may log into your Affiliate Console to review Your click through and potential Qualified Purchases statistics on a daily basis. The potential Qualified Purchases shown in this report have not been reviewed to confirm they meet all criteria for Qualified Purchases. As such, Commission Fees may not be issued on all Referred Customers that appear in the Affiliate Console.
  • Obligations Regarding Your Site
    • You will be solely responsible for the development, operation, and maintenance of Your site and for all materials that appear on Your site. Such responsibilities include, but are not limited to, the technical operation of Your site and all related equipment; creating and posting product reviews, descriptions, and references on Your site and linking those descriptions to Our website; the accuracy and propriety of materials posted on Your site (including, but not limited to, all materials related to Netfirms Products and Services); ensuring that materials posted on Your site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability and responsibility for such matters.
    • We have the right in Our sole discretion to monitor signups through Your site at any time and from time to time to determine if You are in compliance with the terms of this Agreement. If You are not in compliance We may terminate this Agreement immediately.
  • Netfirms Responsibilities We will be responsible for providing all information necessary to allow You to make appropriate Links from Your site to Our site. Netfirms will solely be responsible for order processing for orders/Qualified Purchases placed by a Referred Customer following a Link from Your site, for tracking the volume and amount of Qualified Purchases generated by Your site, and for providing information to Affiliates regarding Qualified Purchases statistics. Netfirms will be solely responsible for all order processing, including but not limited to payment processing, cancellations, refunds and related Netfirms service. Any determination made by Netfirms regarding the foregoing shall be binding absent manifest error.
  • Policies and Pricing Referred Customers who buy Netfirms Products and Services through the Affiliate network will be deemed to be Our Customers. Accordingly, all of Our rules, policies, and operating procedures concerning Netfirms orders, Netfirms service, and Netfirms Products and Services sales will apply to those Customers. We may change Our policies and operating procedures at any time. For example, We will determine the prices to be charged for Netfirms Products and Services sold under the Affiliate Network in accordance with Our own pricing policies. Prices and availability of Netfirms Products and Services may vary from time to time, from affiliate to affiliate, and from region to region. Because price changes may affect products that You have listed on Your site, You may or may not be able to include price information in Your product descriptions. We will use commercially reasonable efforts to present accurate information, but We cannot guarantee the availability or price of any particular product or service. Please note that by signing up to be an Affiliate, You agree to both this Agreement and Our Terms of Service.
  • E-mails and Publicity You shall not create, publish, transmit or distribute, under any circumstances, any bulk electronic mail messages (also known as "SPAM") without prior written consent from Netfirms for each and every day when any bulk mailing will occur. Netfirms, in its sole discretion, reserves the right to reject each and every e-mail mailing. Additionally, You may only send e-mails containing an Netfirms affiliate link and or a message regarding Netfirms or Netfirms's Affiliate Program to person(s) who have been previously contacted and whom consented to the fact that the You will be sending an e-mail containing Netfirms information or information about the Netfirms affiliate program. Failure by You to abide by this section, CAN-SPAM Act of 2003 or our Anti-Spam Policy , in any manner, will be deemed a material breach of this Agreement by You and foreclose any and all rights you may have to any commissions. If your account has excessive clicks in a very short period of time as determined by Netfirms in its sole discretion, the Affiliate relationship may be terminated.
  • Licenses and Use of the netfirms.com and netfirms.ca Logos and Trademarks.
    • Subject to the limitations set forth in Section 2 above and otherwise in this Agreement, we grant you a non-exclusive, non-transferable, revocable license to (i) access our site through the links solely in accordance with the terms of this agreement and (ii) solely in connection with such links, to use the netfirms.com and netfirms.ca trademark and logo and similar identifying material relating to us (but only in the form(s) that they are provided by us) (collectively, the "Licensed Materials"), for the sole purpose of selling Netfirms Products and Services on your site and as approved in advance by us. You may not alter, modify, or change the Licensed Materials in any way. You are only entitled to use the Licensed Materials to the extent that You are a member in good standing of the Netfirms Affiliate Program.
    • You shall not make any specific use of any Licensed Materials for purposes other than selling Netfirms Products and Services, without first submitting a sample to Us and obtaining the express prior written consent of Your Netfirms account executive, which consent shall not be unreasonably withheld. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays Netfirms, any hosted member of Netfirms or any Netfirms employee or representative in a negative light. We reserve all of Our rights in the Licensed Materials and of Our other proprietary rights. We may revoke Your license at any time, by giving You written notice. If not revoked, this license shall terminate upon expiration or termination of this Agreement.
    • You grant to Us a non-exclusive license to utilize Your names, titles, and logos, as the same may be amended from time to time (the "Affiliate Trademarks"), to advertise, market, promote, and publicize in any manner Our rights hereunder; provided, however, that We shall not be required to so advertise, market, promote, or publicize the Affiliate Trademarks. This license shall terminate upon the expiration or termination of this Agreement.
  • Term of the Agreement The term of this Agreement will begin upon Our acceptance of Your Affiliate Program application and will end when terminated by either party. Either You or We may terminate this Agreement at any time, with or without cause. You are only eligible to earn Commission Fees on Qualified Purchases occurring during the term, and Commission Fees earned through the date of termination will remain payable only if the orders for the related Netfirms Products and Services are not cancelled and comply with all Terms laid out in this Agreement. We may withhold Your final payment of Commission Fees for a reasonable time to ensure that all Qualified Purchases are valid and payment from Referred Customers are legitimate as determined by Netfirms in its sole discretion. Any Affiliate who violates either this Agreement or Netfirms's Terms and Conditions will immediately forfeit any right to any and all accrued Commissions Fees and will be removed from the Netfirms Affiliate Program. Netfirms reserves the right to remove an Affiliate from the Affiliate Program, and to terminate or suspend this Agreement, at an time for any reason, in Netfirms's sole discretion. Without limitation, Affiliate's participation in the Program, and this Agreement, shall be deemed automatically terminated immediately and all commissions forfeited upon Affiliate's violation of any of the terms of this Agreement or of any applicable law or regulation having the force of law.
  • Modification We may modify any of the terms and conditions contained in this Agreement at any time in Our sole discretion. Such modifications shall take effect when posted on Our site. Netfirms, in its sole discretion, reserves the right to notify You by e-mail and further reserves the right to withhold notification of any changes made to this Agreement. Modifications may include, but are not limited to, changes in the scope of available Commissions, Commission amounts/percentages, payment procedures, Commission Fee payment schedules, and Affiliate Program rules. If any modification is unacceptable to You, Your only recourse is to terminate this agreement. Your continued participation in the Affiliate Program following Our posting of a change notice or new agreement on Our site will constitute binding acceptance of the change.
  • Disclaimers We make no express or implied warranties or representations with respect to the Affiliate Program or any Netfirms Products and Services sold through the Affiliate Program (including, without limitation, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). In addition, We make no representation that the operation of Our site will be uninterrupted or error free, and We will not be liable for the consequences of any interruptions or errors, including the tracking of information about Referred Customers during the period of interruption.
  • Relationship of Parties You and Netfirms are independent contractors, and nothing in this Agreement 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. You will not make any statement, whether on Your site or otherwise, that reasonably would contradict anything in this Section.
  • Representations and Warranties You hereby represent and warrant to us as follows:
    • This Agreement has been duly and validly executed and delivered by You and constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms.
    • The execution, delivery, and performance by You of this Agreement and the consummation by You of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which You are subject, (ii) any order, judgment, or decree applicable to You or binding upon Your assets or properties, (iii) any provision of Your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to You or binding upon Your assets or properties.
    • You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to Us the license to use Your trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to You or binding upon Your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
    • No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by You in connection with the execution, delivery, and performance of this Agreement or the taking by You of any other action contemplated hereby.
    • There is no pending or, to the best of Your knowledge, threatened claim, action, or proceeding against You, or any Affiliate of Yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to Your trademarks, and, to the best of Your knowledge, there is no basis for any such claim, action, or proceeding.
    • During the term of the Agreement, You will not include in Your site content that is, in Our opinion, unlawful, harmful, threatening, defamatory, obscene, harassing, racially, ethically, or otherwise objectionable or are in violation of Our Terms of Service or Acceptable Use Policy.
    • You are at least sixteen (16) years of age.
    • Each Referred Customer and each Qualifying Purchase referred or submitted by You to Us, is valid, genuine, unique and not fraudulent and meets each of the Criteria for generating a Commission Fee as provided in this Agreement.
  • Limitation of Liability WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
  • Indemnification You hereby agree to indemnify and hold harmless Us and Our subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that Our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by You herein, or (iii) any claim related to Your site, including, without limitation, its development, operation, maintenance and content therein not attributable to Us.
  • Confidentiality Each of the parties here to agrees that all information including, without limitation, the terms of this Agreement, business and financial information, Netfirms and vendor lists, and pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party any obligation of confidentiality to the discloser hereunder. Notwithstanding the foregoing, each party is hereby authorized to deliver the copy of any such information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
  • Independent Investigation Your application submission acknowledges that you have read this agreement and agree to be bound by all its terms and conditions. you understand that we may at any time (directly or indirectly) solicit Netfirms relationships on terms that may differ from those contained in this agreement. we may also solicit Netfirms relationships with entities that operate websites that are similar to or compete with your website. You have independently evaluated the desirability of participating in the Netfirms Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this agreement.
  • Governing Law The laws of the United States and the State of Massachusetts will govern this Agreement, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Middlesex County County, Burlington, Massachusetts and You irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without Our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce Your strict performance of any provision of this Agreement will not constitute a waiver of Our right to subsequently enforce such a provision or any other provision of this Agreement.
  • I INDICATE MY APPROVAL OF THIS AGREEMENT AND DESIRE TO BECOME AN AFFILIATE UNDER THESE TERMS AND CONDITIONS BY COMPLETING AND SUBMITTING THE AFFILIATE PROGRAM SIGNUP FORM, BY SUBMITTING PROPOSED REFERRED CUSTOMERS OR QUALIFYING PURCHASES TO US UNDER OUR AFFILIATE PROGRAM AND/OR BY COLLECTING AND COMMISSION FEES FROM US.

    This file was last modified on February 12, 2018.

    Challenge: 

    Expatriate postings raise tough structural questions that multinationals too often overlook.

    Multinationals inevitably post expatriates abroad. But in setting up expat postings, employers too often either ignore the question of how best to structure the expat assignment or else they struggle with the expat structuring issue. The reflexive or default approach to structuring expat assignments is simply to grab whatever expat assignment package got used for the last expat posting, change the names, make some tweaks and move on. ("Hey, last year we sent Carlos to Brazil—let’s use Carlos’s assignment package as a template now, for posting Susan to Paris.") But this approach is dangerous. When posting an expatriate, focus instead on the most ideal structure for this particular assignment. ("You know, while we ‘seconded’ Carlos to our Brazilian partner last year, now we need to ‘localize’ Susan to our affiliate in Paris. So Carlos’s expat assignment package would be a dangerous model to use here. For Susan, let’s find a form for documenting an overseas ‘localization.’")

    Expatriate assignments traditionally came about when a multinational tapped an employee and assigned him to go off to work abroad for one of three reasons: to support a foreign affiliate, as a broadening assignment, or to serve as a "foreign correspondent" performing tasks overseas for the benefit of the home-country employer. But multinationals these days increasingly see these "traditional expatriate assignments" as "less effective"; multinationals are now turning to new structures like "commuter assignments, extended business travel, rotational assignments,…‘local plus’ approaches…and other alternatives." (Eric Krell, "Easy Come, Easy Go: Weigh Alternatives to Long-Term International Expatriate Assignment,"SHRM HR Magazine, March 2013, at 59.) Further, in today’s global environment we are seeing more self-driven expats who ask to move overseas for personal reasons—think of a "trailing spouse" married to another company’s expatriate or an employee returning to his home country to nurse an ailing family member.

    Pointer:

    There are four different expatriate structures. For each expat posting, select the structure that best meets business needs—regardless of which structure might have been most appropriate last time.

    The wider range of expat postings we see today raises ever more questions of expatriate assignment structure. How best to structure a given expatriate assignment requires addressing four topics: (1) who is, and is not, an expatriate? (2) understanding the four expatriate structures (3) selecting among the four expatriate structures and (4) expatriate agreements. We address those four topics here.

    Who Is, and Is Not, an Expatriate?

    It is always dangerous, and almost always needlessly expensive, to structure a non-expatriate’s employment as if he were an expatriate. Before structuring any expatriate assignment, first verify whether the candidate really is a business expatriate.

    Broadly speaking, an "expatriate" is anyone who lives in a foreign (non-native) country. Relevant for our purposes, a business expatriate is an employee originally hired by and working for a multinational in one country whom that employer now reassigns to work temporarily abroad in a new overseas place of employment. A business expatriate always expects to return home—to be "repatriated"—at the end of the assignment. (An overseas assignee with no expectation to repatriate is a "permanent transferee," not a business expatriate.)

    Watch out for false expats—internationally mobile employees who are not genuine business expats and who should therefore not get structured as expats. For example, some short foreign postings and assignments get staffed by business travelers who, as mere travelers, are not genuine expats. A business traveler remains employed and payrolled by his home-country employer entity, and his place of employment remains his home country. The traveler goes abroad to render services, sometimes on a “posting” or “assignment” of several months that requires a visa or work permit. But his time working abroad is short enough that the host country never becomes his place of employment, not even temporarily.

    • Stealth/accidental expats: When a business traveler stays overseas long enough, as a matter of host-country law his place of employment shifts at some point to the host country. He then becomes a so-called “stealth expat” or “accidental expat.” Stealth/accidental expat status is an internal misclassification that triggers legal problems under host-country immigration, payroll and employment laws, as well as “permanent establishment” issues. Multinationals should of course be careful to classify stealth/ accidental expats as actual business expatriates. On the other hand, multinationals should also be careful not to classify mere business travelers as business expatriates.  

    Another example of a false expatriate is the foreign hire. Multinationals often recruit candidates in one country for jobs in another country. For example, American multinationals recruit security guards and technicians in the United States to work jobs overseas on compounds in the Middle East or oil fields in Africa. And Silicon Valley tech companies recruit graduates from universities in India to come stateside to work jobs in California. These are foreign hires, not business expats—these employees may be emigrants and they may need visas to work in their places of employment, but they are not business expatriates because all their work for the employer is performed at one place of employment in one country. Some foreign hires get to participate in rich company expat benefits plans, but—contrary to a widespread misunderstanding among human resources professionals—eligibility under a company’s expat benefits program does not convert a foreign hire into a business expatriate. Structure foreign hires as locals, even if they participate in the company expat plan.

    Not all mobile employees who participate in a company expat benefits program are genuine business expatriates and, conversely, not all genuine business expats participate in company expat benefits programs. This point is vital because it is so widely misunderstood. Many organizations’ human resources teams colloquially define "expatriates" as employees who participate in the in-house expatriate benefits program, the expensive package of overseas assignee goodies like moving expenses, housing allowance, tax equalization, international tax preparation, spousal support, children’s tuition, car/driver, social club membership, hardship pay, flights home, expat medical insurance, repatriation costs and the like. This usage is not only inaccurate, it is dangerous: To consider as business "expatriates" everyone an organization allows to participate in its expat benefits program can lull the employer itself into misclassifying non-expats (like business travelers and foreign hires) enrolled in a company expat benefits program as actual business expatriates. Even more dangerous, this usage can lull a multinational into overlooking and mischaracterizing actual expats who do not participate in the expat benefits program (like trailing spouses and overseas telecommuters), leading to stealth/accidental expats. Always clarify internally who is, and is not, a genuine business expatriate. Never structure non-expats (like business travelers and foreign hires) as expats, even if they get to participate in an expensive expat benefits program.

    Understanding the Four Expatriate Structures

    Only genuine business expatriates should get structured as expats, but how best to structure an expat assignment? There is no one single best way to structure an intracompany business expatriate posting because there are four viable types of expat structures. Different circumstances point multinationals to select various options among these four. And yet in one way or another, all business expatriates (including so-called "inpatriates" coming to headquarters and "third-country nationals" moving from one overseas locale to another) end up falling into one of these four categories: direct foreign posting, secondment, temporary transfer/localized, and dual-/co-/joint-employment.

    1. Direct foreign posting: In a direct foreign posting, a business expatriate remains employed and payrolled by the home-country employer entity but his place of employment shifts to a new foreign host country. Acting as a sort of "foreign correspondent," the expat renders services directly for the home-country entity, not for a local host-country affiliate. (An expat who renders services for a host-country affiliate is a secondee, temporary transferee or dual-/co-/joint-employee expatriate.) Direct foreign postings are easy and attractive to set up, but compliant ones are rare, because host-country immigration and payroll laws make this a fragile status tough to structure legally.
    2. Secondment: "Secondment" means "employee loan." Not all secondees (lent-out employees) are expatriates, and not all expatriates are secondees. In an expatriate secondment, the expat remains employed by his home-country employer entity. He moves abroad to a new host-country place of employment and starts rendering services for a new host-country employer entity, usually an affiliate or joint venture partner of his home-country employer. The secondee might be payrolled by either the home or host-country entities, or by both (via a "split payroll"). Some secondees stay on the home-country payroll while the host-country entity issues a "shadow payroll" to comply with local payroll laws.
    3. Temporary transferee/localized: An expatriate transferee, also called a "localized" expat, moves abroad and gets both hired and payrolled by a new (host-country) employer, often an affiliate or joint venture partner of the home-country employer. The transferee resigns from his home-country employer and simultaneously signs on with the host-country entity, which usually extends retroactive service/seniority credit. While working in the new host-country place of employment, the transferee renders services exclusively for the new employer without retaining any lingering employment relationship with the old home-country employer, other than perhaps a side-letter or email addressing post-assignment repatriation expectations. Yet an expat transferee’s localization is temporary; he expects some day to repatriate and get relocalized at his original home-country employer location. (A transferee who does not expect to repatriate is a "permanent transferee," not a business expatriate.)
    4. Dual-/co-/joint-employee: A dual-/co-/joint-employee expatriate is an expat who simultaneously serves two masters, the home and host-country entities, essentially on a moonlighting basis—one employee simultaneously working two jobs, or working one job actively while retaining status as "on leave" from another employer entity. A dual-/co-/ joint-employee expat may be payrolled by either or both employer entities (via a "split payroll").

     

    • Intended dual-/co-/joint-employment: Some dual-/co-/ joint-employment arrangements get structured expressly with the expat actively rendering services simultaneously for both home and host-country entities, or else officially "on leave" from the home-country employer. Sometimes the expat actually renders services simultaneously for both entities; other times the home and host-country employers decide to structure an expat as a dual-/co-/joint-employee to keep him enrolled in home-country benefits programs.
    • Unintended dual-/co-/joint-employment: Some dual-/co-/ joint-employment arrangements get structured ostensibly as localizations, but with the home-country employment relationship unknowingly left dormant or "hibernating," rather than extinguished. Later, a court comes in and rules the would-be localization was actually a dual-/co-/joint-employment relationship even though the home and host-country entities had considered the expat localized. So when structuring an expat as a localized transferee, be certain to extinguish the home-country employment relationship by having the expat submit an unambiguous letter of resignation.
    • Global employment company [GEC]: Some multinationals employ corps of "career expats" who hop from one overseas assignment to another, spending little or no time working at any home-country or headquarters place of employment. Sometimes these multinationals incorporate—often in a tax-advantageous jurisdiction like Switzerland or the Cayman Islands—a so-called "global employment company" that employs and administers benefits for career business expats. GECs offer certain logistical advantages particularly as to pension administration, but—contrary to a widespread misperception—GECs are not expat structures unto themselves. A career expat employed by a GEC is just a secondee or dual-/co-/joint-employee in disguise. The GEC structure cannot stop the mandatory application of host-country employment protection laws, nor does it significantly simplify the expat structure issues we discuss here. A GEC is a potentially useful tool, yes, but it is no "magic bullet" of an expatriate structure of its own.

    Selecting Among the Four Expatriate Structures

    With these four distinct expat structures, the question becomes: Which of the structures is most appropriate for a given expat assignment? Answering this is a lot like selecting among business entity structures. Which business entity vehicle is best—sole proprietorship, closely held company, publicly traded company, limited liability company or partnership? Obviously we cannot answer this without more context, because which business entity a new business entity, no one would dare grab a "business entity form" from last time around, change the names, tweak the wording and move on, because the last business entity formed may have been a limited liability company whereas the most appropriate vehicle this time might be a partnership. We actively select the best business entity structure each time based on specific needs—not on how we may have structured some other entity at some time in the past.

    So with expat assignments, always select the most appropriate of the four expat structures for this particular assignment, without regard for whatever may have been the best selection last time. Your last expat may have gone off to a country where you have an already-operating host-country entity affiliate, whereas this current expat may be off to a place where you have no on-the-ground infrastructure. Or your last expat may have participated in your company expat benefits program, whereas this current expat may be transferring abroad for personal reasons that render him ineligible for a company package. Or else your last expat may have gone abroad to serve an overseas affiliate, whereas this current expat may be off to work as a foreign correspondent directly for the home-country entity. In posting a given expat abroad and selecting among the four expat structures, factor in three sets of variables: immigration, payroll law compliance and permanent establishment. How these three variables play out as to any given expat posting will point to the structure most appropriate for this particular expat assignment.

    1. Immigration: All countries impose immigration laws. An expatriate or business traveler usually needs a visa or work permit to go work in a new host country, unless he happens to be a local citizen or permanent resident. (Occasionally a US business can tap, for an expat assignment, someone at headquarters who happens to be a host-country citizen.) Unfortunately, many host countries will issue visas and work permits only to employees of local entities that act as visa sponsors. Be ready to eliminate those expat structures (usually direct foreign posting and secondment) that keep non-citizen expats employed by a home-country entity that cannot sponsor a visa or work permit in the host country.
    2. Payroll law compliance: American law requires that American employers do payroll reporting/withholding/ contributions for employee income tax (federal and state); federal social security (absent a "certificate of coverage" under a "social security tantalization agreement" treaty); state unemployment insurance; and state workers’ compensation insurance. Even Americans who employ just a domestic servant—butler, nanny, chauffeur, gardener, nurse—often must comply with payroll mandates. Foreign employers coming into the states must comply, too. If, say, an Australian or Brazilian company were to post a Sydney or São Paulo executive to Seattle or St. Paul while keeping him on an offshore" (Australian or Brazilian) payroll without doing a US "shadow payroll," that would violate American payroll laws and might even be a crime.

    We Americas tend to understand this. But when we structure outbound expat assignments, we too often overlook the reciprocal issue abroad. Remember, expats living and working abroad use host-country services like roads, sewers and garbage pick-up; host countries want even temporary residents to pay their way by paying into local tax and social funds. Outside the handful of countries that impose no payroll laws, payroll laws abroad are just as important as stateside, and violating them may be a crime. Absent a shadow payroll, foreign payroll laws tend to ban offshore wage payments. This means that to keep an American working abroad on a US payroll can be illegal, even a crime.

    An American employer that lacks host-country registrations and taxpayer identification numbers has a tough time complying with host-country payroll mandates. A handful of jurisdictions like Ghana let unregistered foreign employers make local payroll fairly easily, and some countries carve out very limited exceptions to their payroll laws for certain foreign nonprofits operating in-country. Absent one of these exceptions, though, legally issuing payroll in a foreign country ranges from outrageously complex to impossible for a foreign (American) employer. For example, enrolling a US employer not otherwise licensed to do business in Mexico with Mexico’s tax, social security and housing funds and agencies can take about six months and can cost tens of thousands of dollars in legal fees. The Mexican agencies will pose questions, schedule in-person meetings and probe US corporate status. Even engaging a payroll provider like ADP or Ceridian rarely helps much, because payroll providers are mere agents that issue payroll under their customers’ own taxpayer identification numbers.

    Four issues factor into host-country payroll law compliance and, as such, relate to selecting an expat structure: shadow payroll, split payroll, social security totaliation agreements and home-country payroll mandates.

    • Shadow payroll. Where a desired expat structure would keep the expat paid on a home-county payroll, but where issuing a home-country payroll risks violating host-country payroll laws, one strategy is to arrange for some host-country-registered entity (often an affiliate) to issue a "shadow payroll" that shows compensation as if paid in-country, and that otherwise complies with host-country payroll reporting/withholding/ contribution requirements. After making all host-country-mandated reporting/withholding/contributions, the shadow payrolling entity does a behind-the-scenes reconciliation/ charge-back with the offshore payrolling entity. In the eyes of the host-country government agencies that administer tax and social security laws, the expat is legally paid by the local entity.
    • Split payroll. Sometimes the host-country entity pays an expat one chunk of total compensation while the home-country entity pays another chunk—so-called "split payroll." Split payroll can violate host-country payroll laws, unless one of two exceptions applies: (1) the expat is a mobile employee who moves between locations and earns his home-country paycheck while physically working in the home country; or (2) the host country employer does a shadow payroll for the offshore (home-country) payroll payment. Unless one of these exceptions applies, or unless the host country imposes no payroll laws, beware of split payroll, which can be a red flag of a payroll law violation.
    • Social security totalization agreements. A "social security totalization agreement" is a bilateral treaty that lets an expatriate continue on his home-country social security system, usually for up to five years, if the employer registers (gets a "certificate of coverage") and continues to make home-country social security contributions. As of 2013, the US Social Security website www.ssa.gov said the US is party to 24 of these agreements. But contrary to a common misunderstanding, social security totalization agreements only implicate social security—they do not reach income tax reporting/withholding.
    • Home-country payroll mandates. While complying with host-country payroll laws is obviously vital as to expats working in a host country, any expat paid on a home-country payroll may simultaneously be subject to the completely different payroll laws of the home jurisdiction. See our Global HR Hot Topic of April 2012.
    1. Permanent establishment: A third expat structural issue is avoiding unwanted permanent establishment for the home-country employer entity. A "permanent establishment" is a corporate tax presence that law imposes on an entity held to be "doing business" locally. The expat structure challenge is where host-country law considers a home-country employer entity employing an expat in-country to be "doing business" in the host country because it employs the expat. The expat’s in-country activities on behalf of his host-country employer trigger a so-called "permanent establishment."

    Imagine for example a German organization employs a full-time expat in Chicago, but otherwise does no business stateside. The German expat telecommutes, working solely on German matters, in German, from his apartment on Lake Shore Drive. Might the US IRS and Illinois agencies take the position that this German company does business in Illinois because it employs this Chicago resident "telecommuting" full-time for German headquarters? If so, there is a permanent establishment: The German organization should register with the Illinois secretary of state and file US and Illinois corporate tax returns. (Payroll law compliance, discussed above, is a completely separate issue.) If the German company fails to register and file, it is liable for its violation, perhaps it commits a crime and it might face unknown tax liabilities. The reciprocal issue arises in the outbound scenario, when a Chicago or other American organization employs an expat who works in Germany or somewhere else abroad. For this reason, the best expat structure may be to have the expat work for the host-country entity.

    Expatriate Agreements

    Having selected the most appropriate of the four types of expatriate structures for a given expat assignment, a multinational next needs to decide how best to memorialize (document) its expat assignment. There are two very different kinds of "expat agreements": an expat assignment agreement between the expat and the employer (be it the home-country entity, host-country entity or both) and an inter-affiliate assignment agreement between a home-country employer entity and a host-country affiliate entity, to which the expat is not a party. Document an expat assignment using one or both agreements, as appropriate.

    Expat assignment agreements are important in most all expat postings, whereas inter-affiliate assignment agreements tend to be necessary only in secondments and intended dual-/co-/ joint-employment expat arrangements. In crafting these inter-affiliate assignment agreements, factor in balance of power issues. For example, in a secondment the nominal (home-country) employer entity, rather than the beneficial (host-country) employer entity, should wield ultimate power to make employment decisions such as setting pay/benefits, imposing discipline/termination and setting the length of the secondment.

    In documenting an expat assignment, consider "hibernating" agreements and choice-of-law clauses:

    • "Hibernating" agreements. Where an expat is localized or is a dual-/co-/joint-employee, his primary expat assignment agreement is often with the host-country employer entity. If that expat never formally resigned from the home-country employer, the home-country employment arrangement becomes dormant or "hibernating," not extinguished. Hibernating home-country agreements "spring back to life" upon expat termination or repatriation, often complicating separations. It is always best to terminate any home-country employment agreement not meant to "hibernate," by having the expat unambiguously resign.
    • Choice-of-law clauses: As soon as an expat’s place of employment becomes a new country, local host-country employee protection laws (laws regulating work hours/overtime, vacation/holidays, wages/benefits, payroll, health/safety, unions, discrimination/harassment, severance) generally reach and protect the expat by force of public policy. A home-country choice-of-law clause in an expat assignment arrangement can compromise the employer’s position by implicating home-country employee protection laws without stopping the mandatory application of host-country employment laws. See our Global HR Hot Topic of September 2012. Beware of home-country choice-of-law clauses in expatriate agreements.

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