Terms and conditions
As of May 5, 2014
These Internet Affiliate Program ("Program") Terms and Conditions ("Terms & Conditions") govern your referral of Visitors from your Web Site to http://www.t-mobile.com (the "T-Mobile Site") through your use of a link ("Link") from your Web Site to the T-Mobile Site where such Visitors may subscribe to T-Mobile's wireless voice and/or data services (the "Service") and purchase Equipment. Your use of the Link is subject to your acceptance of these Terms & Conditions, completion of and submittal to T-Mobile of the Internet Affiliate Program Application ("Application"), and T-Mobile USA, Inc.'s ("T-Mobile" or "Company") approval of your Application, in its sole discretion. Your acceptance of these Terms & Conditions shall be evidenced by your submittal of the Application to T-Mobile. There is no valid agreement between the parties unless and until you have received notification from T-Mobile that your Application has been approved. T-Mobile may reject your Application for any reason, or for no reason, in its discretion.
- DEFINITIONS. Whenever used in these Terms & Conditions, the following capitalized terms will have the following specified meanings.
"Activation" means the commencement of Service by Company to a wireless telephone number assigned to a handset purchased by a Subscriber in accordance with these Terms & Conditions. Each new wireless telephone number assigned to an account under the terms of these Terms & Conditions constitutes an Activation, except as otherwise provided herein.
"Activation Date" means the date on which Company commences Service to a wireless telephone number assigned to a handset purchased by a Subscriber originating from the Link.
"Agreement" means these Terms & Conditions and the Internet Affiliate Program Application upon acceptance of that Application.
"Branding Guidelines" means the rules and guidelines governing use of the Marks and available for download at https://brand.t-mobile.com/TMobileBrandPortal/Client/.
"Charge Back" means a reduction in your compensation under these Terms & Conditions by the amount of any compensation earned for an original Activation.
"Deactivation" means termination of Service to any wireless telephone number assigned to a Subscriber for any reason. A Subscriber may substitute wireless phones or Service plans, per the terms of their agreement with Company, without being considered Deactivated, so long as the same phone number is maintained and so long as Company continues to provide Service to the Subscriber.
"Equipment" means wireless devices, including but not limited to mobile phones, tablets, and mobile hotspots, that are sold to consumers by Company.
"Intellectual Property Rights" means all copyright, trademark, service mark, trade secret, patent, and other intellectual property rights (including all rights of registration or renewal thereof and all causes of action relating thereto).
"Marks" means the word mark T-Mobile®, the T-Mobile logo®, and such other trademark that the Company may separately identify as licensed under these Terms and Conditions.
"Marks Rules" means the rules and guidelines governing use of the Marks and set forth at http://t-mobile.com/marksrules/.
"New Gross Subscribers" are determined as follows: for each Billing Month, the number of new Subscribers that (a) originated from the Link and are accepted by Company; (b) whose Activation Date was in that Billing Month and whose Service was not Deactivated by the end of that Billing Month; and (c) who have not previously subscribed to Service within the last one hundred and eighty (180) calendar days.
"New Net Subscribers" are determined as follows: for each Billing Month, the number of New Gross Subscribers less the number of previous Activations that became subject to Charge Backs in that month.
"Program Term" refers to the applicable commission payout structure made available to you upon acceptance of your Application.
"Subscriber" means any individual or business entity: (1) that purchases Equipment and places an order for Service from Company; and (2) for whom Service is Activated. Company may determine in its sole discretion the types of Subscriber(s) (i.e., individuals, companies, etc.) that qualify for Commissions under the terms of the Agreement. For purposes of calculating your commission, Service on each different telephone number ordered by a single individual and accepted and Activated by Company shall be treated as being purchased by a separate Subscriber.
"Subscriber Information" means any information gathered by you including, without limitation, names, addresses, e-mail addresses, telephone numbers, information regarding Web Site usage and purchasing habits, and other personally-identifying information about an actual or Prospective Subscriber, whether or not such information was gathered prior to the commencement of the Agreement.
"Visitor" means any person visiting the Web Site.
"Web Site" means a World Wide Web site, developed, operated, and maintained by you in accordance with these Terms & Conditions.
- APPLICATION. In order to be considered for the Internet Affiliate Program, you must submit an Application. Applications can be found at www.t-mobile.com/Company/Working.aspx?tp=Abt_Tab_AffiliateProgram. Company will evaluate your Application within a reasonable time after submittal and provide you with notice of acceptance or rejection in its discretion. You have no right or authority to Link your Web Site to T-Mobile's Site unless and until you agree to these Terms & Conditions, and you have received notification from Company that your Application has been approved.
- TERM. If Company approves your Application, the term of the Agreement between you and Company shall commence as of the date of the approval notification from Company, and shall continue until terminated by either party in accordance with these Terms & Conditions.
- ACKNOWLEDGEMENTS. Company and you acknowledge that neither party shall have the authority, nor shall either hold itself out to any third party as having any authority, to bind the other in any manner. Without limiting the generality of the foregoing, you shall have no right, power, or authority to make any representations or warranties regarding Service or any Equipment except as expressly directed in writing by Company in its sole discretion. You acknowledge that you have no right to sell Service or Equipment through the Web Site to potential Subscribers or Subscribers or to any other person or entity. Furthermore, you may not purchase Equipment from Company's dealers, retailers, resellers, or any other source without prior written permission from Company signed by its authorized representative in Company's sole discretion. All sales of Service and Equipment that originate from the Link shall be handled by Company. You acknowledge and agree that you do not have an exclusive right to promote, market, or solicit sales of Equipment or Service and that Company and other dealers, agents, and affiliates of Company may also be promoting, marketing, selling, and/or soliciting orders for Service and Equipment. You acknowledge that you independently have evaluated the desirability of participating in the Internet Affiliate Program and of agreeing to these Terms & Conditions and are not relying on any representation, guarantee, warranty, or statement by Company or any other entity or person, other than as specifically set forth in these Terms & Conditions. You and Company are independent contractors, and nothing in these Terms & Conditions creates any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Company.
- MARKS; LINK; LICENSE. Effective upon approval of your Application by Company, Company grants a limited, personal, non-exclusive, non-transferable, non-sublicenseable, revocable license during the term of the Agreement to use and reproduce the Link, and to use and reproduce the Marks as part or immediately next to the Link, solely in connection with the performance of your obligations under the Agreement. You may not modify the Marks or the Link. You shall not use the Marks and Link in any way that causes, or is likely to cause damage to the reputation, business or goodwill of Company, and will not use the Marks and Link in any manner that could infringe, violate, tarnish, dilute, cause a loss of distinctiveness, harm, disparage, misuse or bring into disrepute the Marks or Company, including any uses that are sexually explicit, obscene, violent, discriminatory, illegal, offensive, threatening, profane, or harassing. You shall only promote, market, and advertise other services and products on the Web Site which would not in the sole discretion of Company be injurious to the reputation, good will or image of Company. If Company determines in its sole discretion that such other services or products may be injurious to its reputation, Company has the right to immediately revoke this License and/or terminate the Agreement upon written notice to you. You shall comply with all Marks Rules and Branding Guidelines in your use and reproduction of the Marks. Any unauthorized use of the Marks and Link, any use not in compliance with these Terms & Conditions, Branding Guidelines or the Marks Rules, or any action which, in Company's sole discretion, constitutes an infringement of the Marks by you, shall constitute a breach of the Agreement. You acknowledge that you have no rights in or to the Marks and Link except as provided herein, and that all goodwill arising out of any use of the Marks and Link by you shall inure solely to the benefit of Company or Deutsche Telekom AG (licensor of the T-MOBILE® and T-MOBILE logo® marks)("DT"), as applicable. You agree that you have no right to and will not during the term of this Agreement or thereafter challenge the right, title or interest of Company or DT in or to their Marks, claim any right, title or interest in or to the Marks; or assert any interest in, or attempt to register or apply for registration of, any Marks or any confusingly similar variation of the Marks. You will not use any Marks as or incorporate any Marks into any (i) company names or trade names, logos or other third-party marks or Licensee's marks, (ii) email addresses, (iii) gTLDs, domain names or URL strings, (iv) telephone numbers, listings, or the like, (v) keywords or adwords for purposes of keyword or adword advertising, or (vi) social networking names, identifiers or "handles". You will transfer ownership of any items, or expressly abandon such items, under (i)-(vi) upon demand. Following the termination of the Agreement, you shall immediately discontinue use of any Marks. Company or Deutesche Telekom AG, as applicable, shall retain all right, title, and interest therein, and no title to or ownership of any Intellectual Property Rights associated with any Equipment or Service or the Marks is transferred to you or any Subscriber pursuant to this Agreement. You may not create, publish, or distribute any items that reference T-Mobile, the Marks or the Link without obtaining the prior written approval of Company, in its sole discretion.
- YOUR OBLIGATIONS. You shall at your sole cost, establish and continuously maintain your Web Site and whatever organization and resources are necessary for performance under the Agreement. You agree to comply with the Web Site Terms & Conditions contained below. You agree to indemnify, defend, and hold Company harmless from all damages, claims, fees (including attorneys' fees), and expenses relating to the development, operation, or maintenance of your Web Site. You shall at all times comply with all applicable laws, regulations, and orders of any governmental authority of competent jurisdiction in performing your obligations hereunder.
- SOLICITATION AND SALE OF EQUIPMENT AND SERVICE. You shall solicit orders for Service and Equipment through the Web Site by posting the Link. Company reserves the right to amend its offerings including rate plans for Service and Equipment, and to add, delete, suspend, or modify any terms and conditions for any Service at any time, in its sole discretion. All orders by potential Subscribers originating from the Link are subject to acceptance or rejection by Company in its sole discretion, and Company shall not be required to provide any Service to any person or entity, or be required to sell any Equipment to a potential Subscriber, unless and until it has accepted the applicable order. Company shall be solely responsible for all billings of Subscribers for Equipment and Service, and all remittances resulting from such billings shall be made directly to Company and shall be the property of Company. You shall not collect payments for Equipment, Service, or deposits for any reason. All Subscribers shall be customers of Company and shall not be considered your customers.
COMPENSATION. Potential activations originating from you through the Link are received by Company as a "Potential Subscriber", subject to Company's acceptance, in Company's sole discretion. Company is responsible for selling the Service and Equipment, gathering Subscriber information, running any credit check, and delivering the Service and applicable Equipment to the Subscriber. Your only compensation under this Agreement shall be Commissions paid in the amount specified in the Program Term for each successfully completed Activation by a New Net Subscriber.. You shall have no right to compensation other than as earned in strict compliance with these Terms & Conditions and the Program Term. We may amend the compensation stated herein upon seven (7) calendar days' prior written notice to you. Your continued performance under the Agreement following such amendment shall act as your acceptance of the amendment.
- Payment of Commissions. You shall be paid monthly Commissions no later than thirty (30) calendar days after the end of each month. The number of Activations for which Commissions are paid will be based on the number of New Net Subscribers (as calculated by Company through its billing system) activating through the Link for that month. Commissions are calculated by calendar month, retroactive to the first Activation for the month. To the extent you believe there is a discrepancy between Company's calculation of New Net Subscribers and your actual New Net Subscribers for any given month, an adjustment shall be made if, and only if, you provide documentation acceptable to Company in its sole discretion showing that this discrepancy exists and showing the actual number of New Net Subscribers. You shall only be paid once on any single customer Activation. Customers who are diverted from Company or other dealers for re-Activation shall not earn a Commission. You shall be required to reconcile your monthly Commissions no later than thirty (30) calendar days after Company has made your monthly Activation report available. You will be subject to a Charge Back on all Commissions if Subscriber's Service with Company is deactivated for any reason or suspended for non-payment within thirty (30) calendar days after Activation; provided, however, Activations and deactivations due to Subscriber address change, Subscriber Market transfer, Subscriber phone number change, correction of errors, and/or change of responsibility shall not be subject to Charge Back or be eligible for Commissions. Company shall have the right in its sole discretion at any time to deactivate Subscribers.
- CONFIDENTIALITY. During the term of the Agreement, you may have access to certain non-public information of Company, which is noted as such at the time of disclosure or is marked as "confidential" or "proprietary" by Company (the "Confidential Information"). Confidential Information does not include information that is generally known and available, or in the public domain. You agree (i) not to disclose any Confidential Information to any third parties, (ii) not to use any Confidential Information for any purposes except carrying out your rights and responsibilities under the Agreement, and (iii) to keep the Confidential Information confidential using the same degree of care you use to protect your own confidential information, but in no event, less than a reasonable degree of care. These obligations survive for 3 years after termination of the Agreement.
- TERMINATION. Either party may terminate the Agreement at any time, for any reason or no reason, by giving the other party seven (7) calendar days' written notice of termination. Immediately upon termination, you shall remove the Link and cease use of any Marks. Each party shall fully perform any and all obligations under the Agreement incurred prior to the effective date of termination or expiration. Any provisions in these Terms & Conditions that may reasonably be construed as surviving, and the rights and obligations of the parties thereunder, shall survive any termination or expiration of the Agreement.
- INDEMNITY; CONSEQUENTIAL DAMAGES. You hereby agree to indemnify, defend, protect, and hold Company and its subsidiaries and affiliates, and each of their officers, directors, employees, agents, and insurers, harmless from and against any and all claims, costs, suits, liabilities, damages, losses, demands, and expenses of every kind, including, but not limited to, attorneys' fees and disbursements, arising out of advertisements or promotional materials developed or used by you (except advertisements or promotional materials developed or provided by Company), any negligent act or omission or willful misconduct of, or breach of the Agreement by, you or your employees, agents, or contractors. IN NO EVENT SHALL COMPANY BE LIABLE FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO LOST REVENUE OR PROFITS, IN CONNECTION WITH THE AGREEMENT OR ITS BREACH, OR ARISING FROM THE RELATIONSHIP OF THE PARTIES OR THE CONDUCT OF BUSINESS BETWEEN THEM, EVEN IF COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- NO WARRANTIES. Company makes no express or implied warranties with respect to the subject matter of the Agreement, or the Internet Affiliate Program and Company hereby disclaims all implied warranties, including but not limited to implied warranties or merchantability and fitness for a particular purpose. You understand that the operation of the T-Mobile Site may not be uninterrupted or error free, and that the Link is provided on an "AS IS" and "AS AVAILABLE" basis. You agree that Company will not be liable for any interruptions or errors in using the Link or the T-Mobile Site. The provisions of this Section survive termination or expiration of the Agreement.
- FORCE MAJEURE. The parties' performance under the Agreement shall be excused if such non-performance is due to: labor difficulties; riots; strikes; governmental orders; equipment failure; epidemics; acts of civil or military authority; war; compliance with laws, rules, and regulations and codes adopted after the date of this Agreement; inability or delay in securing equipment; acts of God; civil commotion; acts of nature; or unusually severe weather.
- GOVERNING LAW, JURISDICTION AND VENUE. The Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and shall be governed by the laws of the State of Washington, without regard to the conflict of laws or choice of law provisions thereof. The parties hereby submit to the jurisdiction and venue of any state court sitting in King County, Washington or any federal district court for the district in which said county is located.
NOTICES. All notices and other communications hereunder shall be given in writing and shall be deemed to have been duly given and effective (i) upon receipt, if delivered in person, by tele-copy (e.g., facsimile), or via electronic mail, (ii) one day after deposit prepaid with a national overnight express delivery service, or (iii) three business days after deposit in the United States mail. Such notices must be properly addressed as set forth below, unless a different address for notices is later provided:
|If to Company:
Brian Brueckman SVP, Customer Service
T-Mobile USA, Inc.
12920 SE 38th Street
Bellevue, Washington 98006
|With a copy to:
Director of Legal Affairs, Marketing
T-Mobile USA, Inc.
12920 SE 38th Street
Bellevue, Washington 98006
If to you:
Applicant's physical address/e-mail address set forth in your Application, which is incorporated by reference herein.
- ENTIRE AGREEMENT. These Terms & Conditions and the Application represent the entire, complete, final, and exclusive agreement between the parties hereto with respect to the matters addressed in the Agreement, and supersedes all offers, negotiations, and other agreements concerning the subject matter set forth in the Agreement. Except as set forth herein, you are not relying on any representations or warranties from Company, including, but not limited to, any representation or warranty as to the nature of competition or the results or effect of any advertising. Company reserves the right to modify these Terms & Conditions in its sole discretion upon seven (7) calendar days written notice to you through the Network Service. If any modification is unacceptable to you, your sole recourse is to terminate this Agreement by expiring the relationship and rejecting the new Agreement offered. Your continued participation in the Program by accepting the newly offered Program Term with new Terms and Conditions constitutes your binding acceptance to the change(s). You represent and warrant to Company that the execution and performance of the Agreement does not and will not violate any other contract or obligation to which you are a party, including terms relating to covenants not to compete and confidentiality covenants. You will not disclose to Company, or use or induce Company to use, any proprietary information or trade secrets of any other person, association, or entity.
- ASSIGNMENT. You acknowledge that Company may, in its sole discretion, assign any or all of its rights and delegate any or all of its obligations hereunder without your prior approval. You shall not assign the Agreement or any or all of its rights hereunder, or delegate any or all of its obligations hereunder, whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Company. To the extent not prohibited hereby, the Agreement shall be binding upon and inure to the benefit of Company and you and our respective successors and assigns.
- SEVERABILITY. If any provision of the Agreement shall be held invalid under any applicable laws, such invalidity shall not affect any other provisions of the Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms or conditions to give them such effect.
- DISPUTE RESOLUTION. If any claim, controversy, or dispute between the Parties, their agents, employees, officers, directors, or affiliated agents ("Dispute") cannot be settled through negotiation, it shall be resolved by arbitration conducted by a single arbitrator mutually acceptable to both parties. Any controversy or claim arising out of or relating to this Agreement (including whether a particular dispute is arbitrable hereunder) shall be resolved by submission to binding arbitration. Such arbitration shall be held in the Seattle, Washington offices of Judicial Arbitration & Mediation Services, Inc. before a single neutral arbitrator, or with such other arbitration service and in such other location as Company, in its sole discretion, shall select. The Federal Arbitration Act, 9 U.S.C. Secs. 1-15, not state law, shall govern the arbitrability of all Disputes. The parties shall submit any documents requested by the arbitrator in advance of the hearing date specified by the arbitrator. The appointed arbitrator selected may grant discovery as required by the reasonable needs of the case and determine motions files, including motions for preliminary or ancillary relief but shall do so in accordance with the parties' desire to economically and quickly resolve the disputes between them. As soon as practicable after the hearing, the arbitrator shall issue a written decision specifying such relief as may be appropriate. The arbitrator's award shall be final and non-appealable. Any award rendered shall be limited to actual damages sustained by the party in whose favor the judgment is rendered, and no consequential, punitive, exemplary, or special damages shall be awarded. The arbitrator may not award relief in excess of or inconsistent with the provisions of this Agreement, order consolidation or arbitration on a classwide basis or award punitive, incidental, or consequential damages or any other damages other than the prevailing party's actual damages. The arbitrator's award shall be final and binding and may be enforced in any court of competent jurisdiction. Each party shall bear its own costs and attorneys' fees, and shall share equally in the fees and expenses of the arbitrator.
- NO WAIVER. No failure by a party to take action on account of any default or breach of this Agreement by the other party shall constitute a waiver of any such default or breach, or of the performance required of the other party under this Agreement.
WEB SITE TERMS & CONDITIONS.
You shall perform, without charge to Company, such services as may be necessary to design, develop, host, and continuously maintain the Web Site. You shall provide access to all proposed pages pertaining to Company for approval prior to posting. You will make best efforts to keep information on your Web Site current at all times. In the event that Company at any time notifies you, in its sole discretion, that it deems the Web Site or any elements thereof to be unsuitable, you shall promptly revise and correct the applicable Web Site elements to Company's satisfaction, or Company has the right to terminate the Agreement.
Company may amend this Section 21 in its sole discretion upon ten (10) calendar days' prior written notice to you.
- Company will be the owner of all information relating to any Company Subscriber that may be collected by you (including, without limitation, names, addresses, e-mail addresses, telephone numbers, information regarding Web Site usage and purchasing habits, and other personally-identifying information) (collectively, "Subscriber Information"), along with all associated Intellectual Property Rights, and you shall treat the same as Confidential Information. You shall adopt policies to protect such information with respect to Subscribers and potential Subscribers as Company may specify from time to time. To the extent that you at any time have or obtain any right, title or interest with respect to any Subscriber Information, or any associated Intellectual Property Rights, you hereby assign and agree to assign the same to Company.
- You shall take such actions (including, without limitation, execution of affidavits and other documents) as Company may request to effect, perfect, or confirm Company's ownership interests as set forth in paragraph (b) of this Section. Upon Company's request, and in any event upon the expiration or termination of the Agreement, you shall deliver to Company all copies of any Subscriber Information in your possession or control, upon such media as Company may reasonably request, along with such supporting documentation and information as Company may reasonably request in order to effectively make use of the same.
- You represent, warrant, and covenant that: (a) you possess or will possess sufficient resources and rights in the Web Site in order to enter the Agreement and comply with its terms, including those contained in this Section 21; (b) you will perform the services described in paragraph 1 above in a timely, professional, and workmanlike manner; and (c) nothing on the Web Site shall violate, misappropriate or infringe any Intellectual Property Rights of any third party or contain any materials which are obscene, libelous, or defamatory, as more fully described in Section 5 above.
- You shall use best efforts to ensure that in any given twenty-four hour period during the term of the Agreement, the Web Site shall have an uptime of at least 98% (with industry standard downtime for maintenance, provided that such downtime not occur at peak traffic times). You shall repair any malfunctions of the Web Site as promptly as reasonably possible after notice by any party of such condition.
- AUTHORITY. The person submitting the Application on behalf of the Applicant hereby represents, warrants, and certifies that (1) he or she is the Applicant, or that he or she has been lawfully authorized to be bound by these Terms & Conditions (and any Agreement formed by Company's acceptance of Applicant's Application as set forth herein) on behalf of the Applicant, and (2) he or she has adequate legal capacity to agree to be bound by these Terms & Conditions (and any Agreement formed by Company's acceptance of Applicant's Application as set forth herein).
BY COMPLETING AND SUBMITTING THE APPLICATION, I REPRESENT AND WARRANT THAT I HAVE READ AND UNDERSTAND THE INTERNET AFFILIATE PROGRAM TERMS & CONDITIONS, AND AGREE TO BE BOUND SUCH TERMS & CONDITIONS AND ANY AGREEMENT FORMED BY COMPANY'S ACCEPTANCE OF YOUR APPLICATION AS SET FORTH HEREIN.