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VodaHost Affiliate Agreement
1. Preamble
By completing and submitting the accompanying ("VodaHost") Affiliate Program ("Affiliate Program") application form, you are agreeing to enter into a legal agreement with VodaHost LLC which contains all of the terms and conditions below and governs your participation in the VodaHost Affiliate Program. As used in the Agreement, "VodaHost", "we", "us" or "our" means VodaHost LLC., a Delaware corporation, with its principal place of business at......
VodaHost LLC
1220 North Market Street - Suite 808
Wilmington, Delaware
19801 U.S.A.
and "Applicant", "you", "your" and "yours" means you, the applicant. "Affiliate" means an applicant that has completed the application form described above and that has been accepted by VodaHost into the Affiliate Program.
"Your Site" or Affiliate Site means the World Wide Web site that you specify in the application that is owned by you. The "VodaHost Site(s)" shall mean any websites that are owned and operated by VodaHost LLC.
The purpose of this Agreement is to allow HTML linking between Your Site and the VodaHost Site(s).
2. Statement of Investigation
You acknowledge that you have read this Agreement and agree to all of its terms and conditions. You acknowledge that you have independently evaluated the desirability of participating in the VodaHost Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
3. Application to the VodaHost Affiliate Program
To begin the application process, you must submit a complete Affiliate Program Application. VodaHost may reject your application if it determines (in its sole discretion) that Your Site is unsuitable for the VodaHost Affiliate Program for any reason, including, but not limited to, if Your Site incorporates images or content that is in any way competitive, unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable. If VodaHost rejects your application, you may reapply at any time, and VodaHost will reconsider the application.
4. Spam
Promoting VodaHost via unsolicited email is strictly prohibited, and affiliate agrees to not reference VodaHost in any way, shape, or form, in any email that Affiliate sends in which the recipient has not specifically asked to receive it. In the case of mailings which are conducted by a third party on Affiliates behalf, Affiliate assumes full responsibility and is advised to perform due diligence to ensure that the mailing list is in fact 100% opt-in. Furthermore, Affiliate MAY NOT link to VodaHost from any URL that is promoted via unsolicited email.
The Affiliate agrees that VodaHost will terminate this Agreement and withhold all referral fees due if Affiliate is found in violation of this policy.
5. Linking Your Site to VodaHost/Limited License Grant
As an Affiliate Site, we will make available to you banner advertisements, button links, or text links to the VodaHost Site(s), containing VodaHost LLC's, trademarks, service marks, trade names, logo and words identifying VodaHost LLC (the VodaHost Marks) (each of these advertisements and links referred to herein as "Links," or individually as a "Link"), which, subject to the terms and conditions hereof, you may display on Your Site. In utilizing the Links, you agree that you will cooperate fully with VodaHost LLC in order to establish and maintain such Links. All Affiliates shall display such Links prominently throughout the Affiliate Site. Each Link connecting users of Your Site to VodaHost Sites, will in no way alter the look, feel or functionality of VodaHost Site. VodaHost LLC has the right in its sole discretion to monitor Your Site at any time and from time to time to determine if you are in compliance with the terms of this Agreement. You also agree that you will substitute such images with any new images provided by VodaHost from time to time throughout the term of this Agreement.
Subject to the terms and conditions of this Agreement, VodaHost grants you a limited, non-exclusive, non-assignable, non-transferable, royalty-free license to (1) place Links on the Affiliate Site during the term of this Agreement; and (2) to use the VodaHost Marks as incorporated into the Links, for the sole purpose of linking to the VodaHost Site(s).
6.Ownership of Links and VodaHost Marks.
You acknowledge that all right, title and interest in the Links and the VodaHost Marks are exclusively owned by VodaHost LLC and/or its licensors, and that no right other than the limited license granted herein is provided to you. You shall not assert copyright, trademark or other intellectual property ownership or other proprietary rights in the Links or the VodaHost Marks or in any element, derivation, adaptation, variation or name thereof.
You agree that your use of the Links and the VodaHost Marks incorporated therein, inures to the benefit of VodaHost LLC. All goodwill or reputation in the Links and the VodaHost Marks shall automatically vest in VodaHost when the Links are used by you pursuant to this Agreement. You shall not contest the validity of any of the VodaHost Marks or VodaHost's exclusive ownership of them. During the term of this Agreement, you shall not adopt, use, or register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, any of the VodaHost Marks, or any word or mark confusingly similar to them in any jurisdiction.
Use of the Links and the VodaHost Marks is subject to VodaHost's Linking and Trademark Guidelines, which appear as Appendix A at the end of this Agreement. VodaHost LLC may modify the Linking and Trademark Guidelines from time to time, and will take commercially reasonable steps to notify you of the modifications.
7a. Referral Fees (Affiliate Financial Compensation)
Qualifying Services: All Services sold by VodaHost LLC via the VodaHost.com web site to customers originating from Affiliate's Referring Web Site or Referral URL -- and processed via VodaHost's online order forms, telephone, fax numbers, or mailing address -- qualify to earn Affiliate referral fees of maximum US$70 per sale. All US$70 commissions are paid ONLY on web hosting packages that are purchased on a yearly or tri-annual basis . If the affiliates referral purchases a monthly web hosting package, the affiliates commission will be US$20 per sale for each monthly web hosting plan that is sold via the affiliate. VodaHost LLC reserves the right to reject any order that does not comply with its policies.
Definition Of Sub-Affiliates: A Sub-Affiliate is defined as a third party that is in no way related to Affiliate, either personally or commercially. Affiliate is not permitted to register for the VodaHost Affiliate Program more than once, and any attempt to artificially inflate Affiliate's referral fees will be grounds for immediate termination of this Agreement. The affiliate will also receive a 15% commission based on any earnings his/her sub-affiliates earn.
Affiliate understands that VodaHost monitors all affiliate registrations and orders, and agrees that VodaHost will terminate this Agreement and withhold all referral fees due if Affiliate is found in violation of this policy.
Referral Fee Payments: VodaHost will mail a referral fee payment in U.S. dollars for the applicable referral fees (less any taxes required to be withheld under applicable law) on the 16th. day of each calendar month for the previous month's referral fees. However, if the Referral Fees payable to you for any month are less than $150.00, we will hold these Referral Fees until the total amount due to you is at least $150.00 or, (if earlier), until this Agreement is terminated. An online statement of customer purchase activity is available to Affiliate at all times.
All affiliate referral fees are paid on a one time basis only. Affiliates will not be paid any commissions on second year renewals.
Returns And Cancellations: If referral fee qualifying Services are returned or cancelled by Affiliate's customer, the corresponding referral fees will be deducted from Affiliate's next monthly referral fee payment.
Tax Reporting: By law, if referral fee payments to Affiliate accumulate to $600 in a calendar year and Affiliate is a resident of the United States of America, Affiliate will be required to provide VodaHost with a signed W-9 Form for tax reporting purposes before VodaHost can make additional referral fee payments to Affiliate during the same calendar year.
Any customers who register for any VodaHost Service or product will be deemed to be customers of VodaHost LLC, and accordingly, all VodaHost rules, policies, and operating procedures will apply to those customers. We will determine the prices charged for the VodaHost Services provided to customers under this Affiliate Program in accordance with our own pricing policies. VodaHost LLC, at its sole discretion, may change its rules, policies, operating procedures, services offered, pricing and referral fees at any time without prior notice.
7b. If the affiliate’s referral uses a special promotion coupon code during the sign up process, the coupon amount will be deducted from the affiliate commissions. The only special promotion coupon code that is exempt from this clause is “freedomain”.
7c. If a commission dispute or a perceived commission discrepancy arises between the affiliate and VodaHost LLC or VodaHost.com, the affiliate has 60 calendar days from the date of the purchase transaction made by the affiliates referral (The purchase date counting as day 1) to notify VodaHost LLC or VodaHost.com of such dispute and file a commission claim. After the 60 day grace period has lapsed (day 61+), all disputes and or commission claims will be considered null and void.
8. Obligations Regarding Your Site
You are solely responsible for the development, operation, and maintenance of Your Site and for all materials and content that appear on Your Site. VodaHost LLC will not be responsible for and disclaims all liability for any of the foregoing.
You agree to indemnify and hold VodaHost LLC harmless from all damages, claims, fees (including attorneys' fees), and expenses arising from or relating to the development, operation, or maintenance of Your Site and any content displayed on Your Site including but not limited to any claim that content displayed on Your Site infringes or misappropriates any intellectual property right of a third party.
9. Term of the Agreement
The term of this Agreement begins upon VodaHost's acceptance of your application for the Affiliate Program, and ends when terminated by either party in accordance with this Agreement. Either you or VodaHost may terminate this Agreement at any time, for any reason or no reason, by giving the other party written notice of termination. Within 24 hours after termination (whether by you or VodaHost), you must remove the VodaHost Links and any other VodaHost Marks from Your Site and you must destroy or erase from computer memory or any other storage device any items you might have that contain VodaHost Links, VodaHost Marks or VodaHost Confidential Information (as defined herein).. VodaHost will pay you any commissions you might have earned before termination 45 days after the end of the calendar quarter in which this Agreement has been terminated.
10. Modification
VodaHost LLC may modify any of the terms and conditions contained in this Agreement and will notify you of the modification. via email, and a change notice will be posted on the VodaHost Site from which you retrieve the reports or other information made available by VodaHost. If a modification is unacceptable, you may terminate this Agreement by giving notice of termination to VodaHost and following the procedures in Section 9 (Term of Agreement). If you do not give VodaHost LLC notice of termination in accordance with Section 9 continue to display the Links on Your Site, then you will be deemed to have accepted the modifications.
11. Relationship of the Parties
You and VodaHost are independent contractors, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and VodaHost. You understand that you do not have authority to make or accept any offers or make any representations on behalf of VodaHost. You may not make any statement, whether on Your Site or otherwise, that would contradict anything in this section.
12. Confidentiality
During the term of this Agreement, you may have access to certain Confidential Information (as defined below), You agree (i) not to disclose any Confidential Information to any third parties (other than your employees and/or consultants reasonably requiring such Confidential Information for purposes of this Agreement who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without the express prior written consent of VodaHost LLC, (ii) not to use any Confidential Information for any purposes except carrying out your rights and responsibilities under this Agreement, and (iii) to keep the Confidential Information confidential using the same degree of care you use to protect your own confidential information, as long as you use at least reasonable care. For purposes of this Agreement, "Confidential Information" means, any and all information in written, representational, electronic or other form relating directly or indirectly to the present or potential business, operation or financial condition of VodaHost LLC (including, but not limited to, marketing plans, customer and supplier lists and product data) excluding any such information which at the relevant time (i) is known to the public (through no act or omission of the Affiliate in violation of this Agreement), (ii) is lawfully acquired by the Affiliate from an independent source having no obligation to VodaHost maintain the confidentiality of such information or (iii) was known to the Affiliate prior to its disclosure under this Agreement.
13. Disclaimers
EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, VodaHost LLC MAKES NO, AND EXPRESSLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AFFILIATE PROGRAM, THE LINKS, TRADEMARKS, THE VodaHost SITES, THE VodaHost SERVICE, AND ANY OTHER SERVICE PROVIDED BY VodaHost HEREUNDER, AND ANY OTHER SERVICE, CONTENT, TOOLS, OR RELATED DOCUMENTS OR MATERIALS (IN ELECTRONIC FORM OR OTHERWISE) PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR TRADE USAGE. VodaHost EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY, FUNCTIONALITY, OR ANY OTHER ASPECT OF THE VodaHost SITES.
You understand that the operation and/or use of the Links or the VodaHost Site(s) may not be uninterrupted or error free, and may have errors or omissions. You agree that VodaHost LLC will not be liable for any interruptions or errors in using the Links.
14. Limitation of Liability
VodaHost LLC WILL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE LINKS, THE VodaHost SERVICE OR VodaHost AFFILIATE PROGRAM, EVEN IF VodaHost HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LOSS OF DATA OR LOSS OR INTERRUPTION OF SERVICES OR COMMUNICATIONS. FURTHER, VodaHost'S AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE TOTAL REFERRAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
15. Miscellaneous Provisions
This Agreement will be governed by the laws of the state of Delaware in the United States of America, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the county courts located in the state of Delaware in the United States of America 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 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 provision or any other provision of this Agreement. You agree that VodaHost LLC reserves the right to change and alter these terms and conditions at its sole discretion and to apply any changes or alterations retroactively as VodaHost LLC sees fit.
This Agreement and the Appendix attached hereto is the entire agreement between you and VodaHost LLC with respect to the VodaHost Affiliate Program. You may not assign this Agreement, by operation or law or otherwise, without VodaHost LLC's prior written consent. This Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective permitted successors and permitted assigns. VodaHost LLC's failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of VodaHost's right to subsequently enforce those provisions, or any other provisions of this Agreement. The parties acknowledge that if Section 5 or 14 is breached, money damages will not be an adequate remedy and VodaHost LLC may, in addition to any other legal or equitable remedies, seek an injunction or similar equitable relief against such breach or threatened breach without the necessity of posting any bond. In the event that any provision of this Agreement shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of this Agreement.
You and VodaHost LLC agree to negotiate in good faith or to permit a court or arbitrator to replace any provision of this Agreement held invalid, unenforceable or illegal with a valid provision that is as similar as possible in substance to the invalid, unenforceable or illegal provision. In no event shall VodaHost LLC have any liability for any delayed performance or non-performance by VodaHost LLC which results, in whole or in part, directly or indirectly, from any cause beyond the reasonable control of VodaHost LLC. The provisions Sections 5, 9, 10, 13, 14, 15 and this Section 16 shall survive termination or expiration of the Agreement.
1. Preamble
By completing and submitting the accompanying ("VodaHost") Affiliate Program ("Affiliate Program") application form, you are agreeing to enter into a legal agreement with VodaHost LLC which contains all of the terms and conditions below and governs your participation in the VodaHost Affiliate Program. As used in the Agreement, "VodaHost", "we", "us" or "our" means VodaHost LLC., a Delaware corporation, with its principal place of business at......
VodaHost LLC
1220 North Market Street - Suite 808
Wilmington, Delaware
19801 U.S.A.
and "Applicant", "you", "your" and "yours" means you, the applicant. "Affiliate" means an applicant that has completed the application form described above and that has been accepted by VodaHost into the Affiliate Program.
"Your Site" or Affiliate Site means the World Wide Web site that you specify in the application that is owned by you. The "VodaHost Site(s)" shall mean any websites that are owned and operated by VodaHost LLC.
The purpose of this Agreement is to allow HTML linking between Your Site and the VodaHost Site(s).
2. Statement of Investigation
You acknowledge that you have read this Agreement and agree to all of its terms and conditions. You acknowledge that you have independently evaluated the desirability of participating in the VodaHost Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
3. Application to the VodaHost Affiliate Program
To begin the application process, you must submit a complete Affiliate Program Application. VodaHost may reject your application if it determines (in its sole discretion) that Your Site is unsuitable for the VodaHost Affiliate Program for any reason, including, but not limited to, if Your Site incorporates images or content that is in any way competitive, unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable. If VodaHost rejects your application, you may reapply at any time, and VodaHost will reconsider the application.
4. Spam
Promoting VodaHost via unsolicited email is strictly prohibited, and affiliate agrees to not reference VodaHost in any way, shape, or form, in any email that Affiliate sends in which the recipient has not specifically asked to receive it. In the case of mailings which are conducted by a third party on Affiliates behalf, Affiliate assumes full responsibility and is advised to perform due diligence to ensure that the mailing list is in fact 100% opt-in. Furthermore, Affiliate MAY NOT link to VodaHost from any URL that is promoted via unsolicited email.
The Affiliate agrees that VodaHost will terminate this Agreement and withhold all referral fees due if Affiliate is found in violation of this policy.
5. Linking Your Site to VodaHost/Limited License Grant
As an Affiliate Site, we will make available to you banner advertisements, button links, or text links to the VodaHost Site(s), containing VodaHost LLC's, trademarks, service marks, trade names, logo and words identifying VodaHost LLC (the VodaHost Marks) (each of these advertisements and links referred to herein as "Links," or individually as a "Link"), which, subject to the terms and conditions hereof, you may display on Your Site. In utilizing the Links, you agree that you will cooperate fully with VodaHost LLC in order to establish and maintain such Links. All Affiliates shall display such Links prominently throughout the Affiliate Site. Each Link connecting users of Your Site to VodaHost Sites, will in no way alter the look, feel or functionality of VodaHost Site. VodaHost LLC has the right in its sole discretion to monitor Your Site at any time and from time to time to determine if you are in compliance with the terms of this Agreement. You also agree that you will substitute such images with any new images provided by VodaHost from time to time throughout the term of this Agreement.
Subject to the terms and conditions of this Agreement, VodaHost grants you a limited, non-exclusive, non-assignable, non-transferable, royalty-free license to (1) place Links on the Affiliate Site during the term of this Agreement; and (2) to use the VodaHost Marks as incorporated into the Links, for the sole purpose of linking to the VodaHost Site(s).
6.Ownership of Links and VodaHost Marks.
You acknowledge that all right, title and interest in the Links and the VodaHost Marks are exclusively owned by VodaHost LLC and/or its licensors, and that no right other than the limited license granted herein is provided to you. You shall not assert copyright, trademark or other intellectual property ownership or other proprietary rights in the Links or the VodaHost Marks or in any element, derivation, adaptation, variation or name thereof.
You agree that your use of the Links and the VodaHost Marks incorporated therein, inures to the benefit of VodaHost LLC. All goodwill or reputation in the Links and the VodaHost Marks shall automatically vest in VodaHost when the Links are used by you pursuant to this Agreement. You shall not contest the validity of any of the VodaHost Marks or VodaHost's exclusive ownership of them. During the term of this Agreement, you shall not adopt, use, or register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, any of the VodaHost Marks, or any word or mark confusingly similar to them in any jurisdiction.
Use of the Links and the VodaHost Marks is subject to VodaHost's Linking and Trademark Guidelines, which appear as Appendix A at the end of this Agreement. VodaHost LLC may modify the Linking and Trademark Guidelines from time to time, and will take commercially reasonable steps to notify you of the modifications.
7a. Referral Fees (Affiliate Financial Compensation)
Qualifying Services: All Services sold by VodaHost LLC via the VodaHost.com web site to customers originating from Affiliate's Referring Web Site or Referral URL -- and processed via VodaHost's online order forms, telephone, fax numbers, or mailing address -- qualify to earn Affiliate referral fees of maximum US$70 per sale. All US$70 commissions are paid ONLY on web hosting packages that are purchased on a yearly or tri-annual basis . If the affiliates referral purchases a monthly web hosting package, the affiliates commission will be US$20 per sale for each monthly web hosting plan that is sold via the affiliate. VodaHost LLC reserves the right to reject any order that does not comply with its policies.
Definition Of Sub-Affiliates: A Sub-Affiliate is defined as a third party that is in no way related to Affiliate, either personally or commercially. Affiliate is not permitted to register for the VodaHost Affiliate Program more than once, and any attempt to artificially inflate Affiliate's referral fees will be grounds for immediate termination of this Agreement. The affiliate will also receive a 15% commission based on any earnings his/her sub-affiliates earn.
Affiliate understands that VodaHost monitors all affiliate registrations and orders, and agrees that VodaHost will terminate this Agreement and withhold all referral fees due if Affiliate is found in violation of this policy.
Referral Fee Payments: VodaHost will mail a referral fee payment in U.S. dollars for the applicable referral fees (less any taxes required to be withheld under applicable law) on the 16th. day of each calendar month for the previous month's referral fees. However, if the Referral Fees payable to you for any month are less than $150.00, we will hold these Referral Fees until the total amount due to you is at least $150.00 or, (if earlier), until this Agreement is terminated. An online statement of customer purchase activity is available to Affiliate at all times.
All affiliate referral fees are paid on a one time basis only. Affiliates will not be paid any commissions on second year renewals.
Returns And Cancellations: If referral fee qualifying Services are returned or cancelled by Affiliate's customer, the corresponding referral fees will be deducted from Affiliate's next monthly referral fee payment.
Tax Reporting: By law, if referral fee payments to Affiliate accumulate to $600 in a calendar year and Affiliate is a resident of the United States of America, Affiliate will be required to provide VodaHost with a signed W-9 Form for tax reporting purposes before VodaHost can make additional referral fee payments to Affiliate during the same calendar year.
Any customers who register for any VodaHost Service or product will be deemed to be customers of VodaHost LLC, and accordingly, all VodaHost rules, policies, and operating procedures will apply to those customers. We will determine the prices charged for the VodaHost Services provided to customers under this Affiliate Program in accordance with our own pricing policies. VodaHost LLC, at its sole discretion, may change its rules, policies, operating procedures, services offered, pricing and referral fees at any time without prior notice.
7b. If the affiliate’s referral uses a special promotion coupon code during the sign up process, the coupon amount will be deducted from the affiliate commissions. The only special promotion coupon code that is exempt from this clause is “freedomain”.
7c. If a commission dispute or a perceived commission discrepancy arises between the affiliate and VodaHost LLC or VodaHost.com, the affiliate has 60 calendar days from the date of the purchase transaction made by the affiliates referral (The purchase date counting as day 1) to notify VodaHost LLC or VodaHost.com of such dispute and file a commission claim. After the 60 day grace period has lapsed (day 61+), all disputes and or commission claims will be considered null and void.
8. Obligations Regarding Your Site
You are solely responsible for the development, operation, and maintenance of Your Site and for all materials and content that appear on Your Site. VodaHost LLC will not be responsible for and disclaims all liability for any of the foregoing.
You agree to indemnify and hold VodaHost LLC harmless from all damages, claims, fees (including attorneys' fees), and expenses arising from or relating to the development, operation, or maintenance of Your Site and any content displayed on Your Site including but not limited to any claim that content displayed on Your Site infringes or misappropriates any intellectual property right of a third party.
9. Term of the Agreement
The term of this Agreement begins upon VodaHost's acceptance of your application for the Affiliate Program, and ends when terminated by either party in accordance with this Agreement. Either you or VodaHost may terminate this Agreement at any time, for any reason or no reason, by giving the other party written notice of termination. Within 24 hours after termination (whether by you or VodaHost), you must remove the VodaHost Links and any other VodaHost Marks from Your Site and you must destroy or erase from computer memory or any other storage device any items you might have that contain VodaHost Links, VodaHost Marks or VodaHost Confidential Information (as defined herein).. VodaHost will pay you any commissions you might have earned before termination 45 days after the end of the calendar quarter in which this Agreement has been terminated.
10. Modification
VodaHost LLC may modify any of the terms and conditions contained in this Agreement and will notify you of the modification. via email, and a change notice will be posted on the VodaHost Site from which you retrieve the reports or other information made available by VodaHost. If a modification is unacceptable, you may terminate this Agreement by giving notice of termination to VodaHost and following the procedures in Section 9 (Term of Agreement). If you do not give VodaHost LLC notice of termination in accordance with Section 9 continue to display the Links on Your Site, then you will be deemed to have accepted the modifications.
11. Relationship of the Parties
You and VodaHost are independent contractors, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and VodaHost. You understand that you do not have authority to make or accept any offers or make any representations on behalf of VodaHost. You may not make any statement, whether on Your Site or otherwise, that would contradict anything in this section.
12. Confidentiality
During the term of this Agreement, you may have access to certain Confidential Information (as defined below), You agree (i) not to disclose any Confidential Information to any third parties (other than your employees and/or consultants reasonably requiring such Confidential Information for purposes of this Agreement who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without the express prior written consent of VodaHost LLC, (ii) not to use any Confidential Information for any purposes except carrying out your rights and responsibilities under this Agreement, and (iii) to keep the Confidential Information confidential using the same degree of care you use to protect your own confidential information, as long as you use at least reasonable care. For purposes of this Agreement, "Confidential Information" means, any and all information in written, representational, electronic or other form relating directly or indirectly to the present or potential business, operation or financial condition of VodaHost LLC (including, but not limited to, marketing plans, customer and supplier lists and product data) excluding any such information which at the relevant time (i) is known to the public (through no act or omission of the Affiliate in violation of this Agreement), (ii) is lawfully acquired by the Affiliate from an independent source having no obligation to VodaHost maintain the confidentiality of such information or (iii) was known to the Affiliate prior to its disclosure under this Agreement.
13. Disclaimers
EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, VodaHost LLC MAKES NO, AND EXPRESSLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AFFILIATE PROGRAM, THE LINKS, TRADEMARKS, THE VodaHost SITES, THE VodaHost SERVICE, AND ANY OTHER SERVICE PROVIDED BY VodaHost HEREUNDER, AND ANY OTHER SERVICE, CONTENT, TOOLS, OR RELATED DOCUMENTS OR MATERIALS (IN ELECTRONIC FORM OR OTHERWISE) PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR TRADE USAGE. VodaHost EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY, FUNCTIONALITY, OR ANY OTHER ASPECT OF THE VodaHost SITES.
You understand that the operation and/or use of the Links or the VodaHost Site(s) may not be uninterrupted or error free, and may have errors or omissions. You agree that VodaHost LLC will not be liable for any interruptions or errors in using the Links.
14. Limitation of Liability
VodaHost LLC WILL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE LINKS, THE VodaHost SERVICE OR VodaHost AFFILIATE PROGRAM, EVEN IF VodaHost HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LOSS OF DATA OR LOSS OR INTERRUPTION OF SERVICES OR COMMUNICATIONS. FURTHER, VodaHost'S AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE TOTAL REFERRAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
15. Miscellaneous Provisions
This Agreement will be governed by the laws of the state of Delaware in the United States of America, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the county courts located in the state of Delaware in the United States of America 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 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 provision or any other provision of this Agreement. You agree that VodaHost LLC reserves the right to change and alter these terms and conditions at its sole discretion and to apply any changes or alterations retroactively as VodaHost LLC sees fit.
This Agreement and the Appendix attached hereto is the entire agreement between you and VodaHost LLC with respect to the VodaHost Affiliate Program. You may not assign this Agreement, by operation or law or otherwise, without VodaHost LLC's prior written consent. This Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective permitted successors and permitted assigns. VodaHost LLC's failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of VodaHost's right to subsequently enforce those provisions, or any other provisions of this Agreement. The parties acknowledge that if Section 5 or 14 is breached, money damages will not be an adequate remedy and VodaHost LLC may, in addition to any other legal or equitable remedies, seek an injunction or similar equitable relief against such breach or threatened breach without the necessity of posting any bond. In the event that any provision of this Agreement shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of this Agreement.
You and VodaHost LLC agree to negotiate in good faith or to permit a court or arbitrator to replace any provision of this Agreement held invalid, unenforceable or illegal with a valid provision that is as similar as possible in substance to the invalid, unenforceable or illegal provision. In no event shall VodaHost LLC have any liability for any delayed performance or non-performance by VodaHost LLC which results, in whole or in part, directly or indirectly, from any cause beyond the reasonable control of VodaHost LLC. The provisions Sections 5, 9, 10, 13, 14, 15 and this Section 16 shall survive termination or expiration of the Agreement.
