SPECIAL TERMS & CONDITIONS

THE WebEx Referral Program is sponsored and produced by WebEx Communications Inc., 3979 Freedom Circle,Santa Clara, CA 95054. The program is active until such time as WebEx cancels or changes it. This can be done at any time and at the sole discretion of WebEx.

ELIGIBILITY:

1.      Overview.

A.     WebEx Communications, Inc., a Delaware corporation ("WebEx"), operates Meeting Center, Sales Center, Event Center, Training Center, Support Center, and other qualifying services specified by WebEx (collectively, the "WebEx Services").  As part of the WebEx Services, WebEx offers the WebEx Referral Program ("Program"), through which certain, qualified, current customers of the WebEx Services, in good standing, that receive an invitation from WebEx to participate in the Program ("Referral Customers") are granted a limited, non-exclusive right to promote the WebEx Services in a manner in compliance with this Agreement.  This Agreement provides terms and conditions applicable to the Referral Customers’ membership in the Program.

B.     Referral Customers are offered the opportunity to earn a commission for referring unique customers that enter into a "Transaction" as set forth below.   The definition of a Transaction and the commissions that may be earned by Referral Customers through the Program involve a Referral Customer providing WebEx with the first name, last name, company, phone and email information on a colleague that the Referral Customer believes would be interested in using WebEx Services "Referred Colleague").  Such information of a Referred Colleague shall be provided using the "WRP Form" found at www.webex.com/go/referral.   At the time of submission of the WRP Form, the Referred Colleague shall not be a current WebEx customer and must not have been referred to WebEx by any other source.   Each Referred Colleague registered must be accepted by WebEx, at WebEx's sole discretion.   A Referred Colleague must enter into an agreement to acquire the WebEx Services from WebEx directly (not from a third party) within ninety (90) days from WebEx’s receipt of the WRP Form, the WebEx Services acquired must be for a minimum term of one (1) year for a minimum of five (5) named users, and the Referred Colleague must pay WebEx for the first month of WebEx Services.

C.     The commission to a Referral Customer shall be as follows.   For each Transaction, WebEx will credit (up to) $500 towards such Referral Customers’ next invoice.  The specific commission for a Transaction is as follows:

 

Monthly recurring revenue (MRR) received by WebEx from the Referred Colleague:	Commission to Referral Customer
$1 - $300	$250
> $300	$500

To receive such commission, the Referral Customer must be in good financial standing with WebEx.  In no event shall such credit be issued to a Referral Customer until all outstanding invoices to WebEx have been paid in full.  Credits shall not be used by a Referral Customer to offset payments due to WebEx for services previously provided by WebEx to such Referral Customer.

D.     In addition to the commission, for each proper WRP Form provided to and accepted by WebEx as specified above, WebEx shall allow Referral Customer to choose a Referral Gift as specified below. The "Referral Gift" shall be one of the following items: Webcam, Poker Set, Golf kit set, or $25 Gift Certificate to giftcertifcates.com (see http://www.giftcertificates.com/info/help/TermsAndConditions.cfm for terms and conditions that apply to such certificate).  A Referral Customer shall be entitled to a maximum of two (2) Referral Gifts.  Substitution for a Referral Gift of comparable value is permitted at WebEx’s sole discretion.  WebEx will endeavor to ship the Referral Gift within approximately 60 days of acceptance of the appropriate WRP Form.  WebEx is not responsible for and shall not be liable for late, lost, misdirected, or unsuccessful efforts to provide such Referral Gift.  Signature upon acceptance of delivery of a Referral Gift may be required.  Only individual persons are eligible to receive a Referral Gift.  Corporations and/or entities may not receive a Referral Gift.

E.     The commissions and all other information regarding the Program may be changed at any time by WebEx, at its sole discretion.  Payment for commissions earned shall be made by WebEx in the manner set forth in the Program Page.  Commissions paid are subject to applicable law.  All federal, state, provincial, and/or local taxes are the sole responsibility of the Referral Customer.  

2.      Approval.

A.     Participation in the Program is subject to WebEx’s approval.  Prospective Referral Customers must first submit an application to WebEx to become an "approved" Referral Customer eligible to earn commissions.  After the application has been submitted, WebEx will notify the prospective Referral Customer writing (by e-mail or otherwise) whether or not it has been approved (approval is in WebEx’s sole discretion).

B.     During the application process, Referral Customer must acknowledge its acceptance of these Standard Terms and Conditions (the "Agreement") by clicking-through the "acceptance" button thereby assenting to the Agreement.  This Agreement shall apply only to approved-Referral Customers who accept this Agreement and only Referral Customers who accept this Agreement may participate in the Program.

C.     Other than the payment of commissions through the Program, Referral Customer shall have no claims to any additional compensation, commissions or business derived by or through the WebEx Services.

D.     Participation in the Program does not constitute an employment, broker or agency relationship between Referral Customer and WebEx nor does it create any partnership, joint venture, franchise, or sales representative relationship between the parties.

3.      Term and Termination.

A.     The term of this Agreement shall be continuous, unless and until WebEx terminates this Agreement.  WebEx shall provide Referral Customer with advance notice, except as provided for in Section 3(B) below.  The Program is active until such time as WebEx cancels or changes it.  This can be done at any time and at the sole discretion of WebEx.

B.     This Agreement may be terminated immediately by WebEx in the event that Referral Customer (i) breaches this Agreement or any other agreement with WebEx; (ii) breaches any other intellectual property right, provision of this Agreement, or other of common law intellectual property rights of WebEx; and/or (iii) dilutes, blurs or tarnishes the value of WebEx’s trade names, trademarks, service marks, logos, URLs or content and other designations ("Marks").

C.     For purposes of notification of termination by WebEx, delivery via email is considered a written and immediate form of notification.

D.     Upon any termination of this Agreement, WebEx and Referral Customer will be released from all obligations and liabilities to the other party occurring or arising after the date of such termination or the transactions contemplated hereby, except that no such termination will relieve Referral Customer from any liability arising from any breach of this Agreement occurring prior to termination, or breach of any provision which by its nature is designed to survive termination of this Agreement.

E.     Upon termination of this Agreement, (i) WebEx’s acceptance of additional referrals obtained through Referral Customer shall not constitute a continuation or renewal of this Agreement or a waiver of such termination, (ii) Referral Customer shall be entitled only to those unpaid commissions, if valid, earned by Referral Customer on or prior to the date of termination; (iii) Referral Customer shall in no event be entitled to commissions with respect to any amount of referrals delivered after the date of termination; (iv) all rights and licensees of Referral Customer hereunder shall immediately terminate; and (v) Referral Customer shall cease all uses of any Marks or the Program.

4.       Prohibited Conduct.  Referral Customer may not engage in any inappropriate, misleading, deceptive or unlawful conduct ("Prohibited Conduct") in connection with the Program or this Agreement. "Prohibited Conduct" shall be determined by WebEx in its reasonable discretion and includes, but is not limited to, the following:

 

A.     Misleading Consumers.  Referral Customer may not use fraudulent, deceptive, confusing, or misleading means to generate visitors to or Transactions on the WebEx Services, or enlist or encourage any third party to do so on Referral Customers’ behalf.

B.     Misuse of WebEx’s Name.  Referral Customer will not make any unauthorized use of WebEx’s name, url, trademark, service mark, trade name, domain name, or content, to display or generate any advertising for WebEx, to drive any traffic to Referral Customers’ web site, or for any other purpose including without limitation, the purchase of keywords for embedding in any web site’s meta-tags or source code, or otherwise to trigger or display pop-ups.  Referral Customer may not bid for search engine traffic using the terms "WebEx" or "Web Ex" or similar WebEx mark or any other keyword or trademarked item that Referral Customer does not own. Referral Customer may not use the terms "WebEx," "Web Ex," "WebexOne" or any other WebEx-referenced domain name anywhere on Referral Customers’ web site.

C.     Intellectual Property Rights.  The content and materials that Referral Customer publish and/or display on Referral Customers’ web site, URL's, metatags, search engine ranking devices or otherwise may not infringe upon or violate any patent, copyright, trademark, trade secret or other proprietary right of a third party. Further, Referral Customers’ web site shall not, in any way, copy or resemble the look and feel of, or create the impression that it is part of the WebEx Services or the WebEx service.  Referral Customer must have express permission to use another party’s copyrighted or other proprietary material.  Referral Customer will not make any unauthorized use of any company’s (including WebEx’s) Marks or domain names to display or generate any advertising for WebEx, to drive any traffic to its web site, or for any other purpose, including without limitation, for the purchase of keywords, for embedding in any web site’s meta tags or source code, or otherwise to trigger or display pop-ups, pop-unders or any other advertisements.  Referral Customer will indemnify and hold WebEx harmless from any and all claims, damages, and expenses arising from any breach or alleged breach of this provision or any other provision of this Agreement.

D.     Unsolicited E-Mail.  Referral Customer agrees that Referral Customer will not send unsolicited, commercial e-mail (i.e., "spam") to any persons or entities ("Recipients") absent a Prior Business Relationship or WebEx’s prior written consent.  For purposes of this Agreement, a "Prior Business Relationship" will mean that the Recipient has voluntarily either (i) engaged in a transaction with Referral Customer other than through an WebEx Link provided on Referral Customers’ web site; or (ii) requested or expressly consented to receiving e-mails from Referral Customer.  In the event that Referral Customer uses e-mail to promote WebEx products or services, Referral Customer represent and warrant the following provisions:

 

	1.	Each addressee on your email list has opted-in to receive emails from Referral Customer.
	2.	Upon request by WebEx, Referral Customer will promptly provide evidence of verified opt-in status.
	3.	Each email sent by Referral Customer will contain clear instructions for addressees to unsubscribe from receiving future emails.

 

5.       Obligations Regarding Referral Customers’ Web Site

Referral Customer will be solely responsible for the development, operation and maintenance of your web site and for all materials that appear on your web site.  Referral Customer hereby represent and warrant to WebEx that materials posted on your web site do not violate or infringe the rights of any third party, and that materials posted on your web site are not libelous or otherwise illegal.  WebEx disclaims all liability for expenses relating to the development, operation, maintenance, and contents of your service and/or web site including any email invitees.

6.      Confidentiality

Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that any information (a) marked as "confidential" or similar legend at the time of disclosure, (b) if disclosed verbally, is within thirty (30) days of the initial disclosure, followed by written notification of confidentiality, or (c) that constitutes WebEx technical information, is "Confidential Information" and shall remain confidential and shall not be utilized, directly or indirectly, by the receiving party for any purpose other than as anticipated by the disclosure.  The receiving party agrees that it will (i) protect and not disclose to third parties any Confidential Information, (ii) restrict dissemination of Confidential Information to persons within its organization who are involved in Referral Customers’ participation in the Program and who have signed a substantially similar non-use and non-disclosure agreement, and (iii) not use any Confidential Information for any purpose other than as necessary to meet its obligations under the terms of this Agreement.  The receiving party’s obligations under this section shall not apply to information which (i) is rightfully in its possession prior to receipt from the disclosing party, (ii) is or becomes publicly available other than as a result of a breach of this Agreement, (iii) is rightfully obtained by the receiving party from a third party under no obligation of confidentiality with respect to the information, (iv) is independently developed by the receiving party, or (v) is otherwise required by law.  The receiving party shall reproduce the proprietary rights notices on any copies of the confidential information in the same manner in which these notices were set forth in or on the original.

7.       Limitation of Liability; Disclaimer; Indemnification.

A.     Liability.  UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING IN CONNECTION WITH T HIS AGREEMENT, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT REFERRAL CUSTOMER SHALL REMAIN LIABLE TO WEBEX TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO REFERRAL CUSTOMERS’ INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 3(G), 5(D) and 8(C).  IN NO EVENT SHALL THE LIABILITY OF WEBEX IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES EXCEED THE AMOUNT PAID OR PAYABLE BY WEBEX TO REFERRAL CUSTOMER UNDER THIS AGREEMENT.  IN ANY CASE, WEBEX’S MAXIMUM CUMULATIVE LIABILITY AND REFERRAL CUSTOMERS’ EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY WEBEX TO REFERRAL CUSTOMER OVER THE PREVIOUS 12 MONTHS.  Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation may not apply to Subscriber.

B.     Disclaimer of Warranty.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WEBEX AND SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SUBJECT MATTER, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.  ADDITIONALLY, ALL OF WEBEX'S AND ITS PARTNERS' WEBSITES, AND ANY PROPRIETARY SOFTWARE USED TO CONNECT AND CONDUCT THE WEBEX SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE."

C.     Indemnification.  Referral Customer agrees to defend, indemnify and hold harmless WebEx, its subsidiaries and affiliates, and their respective officers, directors, agents, distributors, franchisees and employees against any loss, damage, expense, or cost, including reasonable attorneys fees (including allocated costs for in-house legal services) arising out of any claim, demand, action, suit, investigation, arbitration or other proceeding by a third party ("Liabilities") based on (i) Referral Customers’ material breach of any term, condition, covenant, duty, representation, or warranty of this Agreement, (ii) materials contained on Referral Customers’ web site (including any allegation that such materials infringe a third party's proprietary rights); and (iii) acceptance, possession, use or issue of any materials or gifts provided to Referral Customer, including without limitation, personal injury, death, and property damage and claims based on publicity rights, defamation or invasion of privacy.

8.      Additional Terms.

A.     Referral Customer shall not assign, transfer or delegate its obligations under this Agreement, either in whole or in part, without the prior written consent of WebEx.  Any attempted assignment, transfer or delegation in violation of the provisions of this provision will be void.

B.     Independent Investigation.  Referral Customer acknowledges that Referral Customer has read this agreement AND AGREES TO ALL ITS TERMS AND CONDTIONS.  Referral Customer understands that WebEx may at any time (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON ITEMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH REFERRAL CUSTOMERS’ WEB SITE.  REFERRAL CUSTOMER HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICPANTING IN THE PROGRAM AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OF WEBEX.

C.     The provisions of this Agreement are severable.  If any provision of this Agreement, or the application thereof to any person or circumstance, shall be deemed invalid or unenforceable under any applicable law, such invalidity or unenforceability shall not affect the other provisions of this Agreement that can be given effect.

D.     No delay or failure by WebEx in exercising any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right.

E.     The rights and remedies of WebEx are not mutually exclusive; that is, the exercise of one or more of the provisions hereof shall not preclude the exercise of any other provision hereof.  Referral Customer acknowledges, confirms, and agrees that damages may be inadequate for a breach or a threatened breach of this Agreement and, in the event of a breach or threatened breach of any provision hereof, the respective rights and obligations hereunder shall be unenforceable by specific performance, injunction, or other equitable remedy.

F.     This Agreement shall be deemed a mutual agreement and shall not be construed and/or interpreted in favor or against either party on the basis of preparation of the Agreement.

G.     By applying to the Program and by clicking–through the acceptance button to this Agreement, Referral Customer executes, accepts, enters into, and becomes party to this Agreement, effective on the date of such acceptance to this Agreement.

H.     WebEx reserves the right to modify the terms and conditions of this Agreement in its sole discretion. If any modification is unacceptable to Referral Customer, Referral Customers’ sole recourse is to terminate this Agreement. Referral Customers’ continued participation in the Program constitutes Referral Customers binding acceptance to the change.

I.     This Agreement shall be governed by the laws of the State of California (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts in Santa Clara County, California, and, to the extent that federal courts have exclusive jurisdiction, also in Santa Clara County, California. Referral Customer consents to such venue and jurisdiction.

J.     Official notices to WebEx should be sent via e-mail to customercarereferral@webex.com or any replacement e-mail address provided by WebEx.

BY APPLYING FOR THE PROGRAM AND CLICKING ON THE "ACCEPT" ICON BUTTON REFERRAL CUSTOMER ARE SIGNIFYING YOUR AGREEMENT TO BE PRESENTLY BOUND BY THE TERMS OF THIS AGREEMENT TO THE SAME EXTENT AS IF REFERRAL CUSTOMER HAD PERSONALLY SIGNED THIS AGREEMENT.