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1 Parties to this Agreement
1. “You”, “Your” refers to each and every affiliate or sub-affiliate of
the HostTheBest affiliate program. Participation in the program
constitutes full and complete acceptance of the terms and conditions set
forth herein.
2 HostTheBest Responsibilities.
2.1 Coded URL. Upon your acceptance, HostTheBest will provide you with a
URL coded to specifically identify you which will allow you to create a
link to the HostTheBest web site. You may post this link in any
location, as many times as you like subject to the remaining terms of
this agreement regarding acceptable links.
2.2 Tracking. HostTheBest agrees to track the customers referred to
HostTheBest via the link provided to you for that purpose. HostTheBest
will pay you a commission for each such referral made in compliance with
this agreement pursuant to the commission schedule and the terms set
forth in this affiliate agreement.
2.3 Second Tier. HostTheBest will also track any affiliate that
initially comes to HostTheBest via your coded URL and becomes an
affiliate during that session. You will receive a second tier commission
for each new sale made by each such second tier affiliate made in
compliance with this agreement pursuant to the commission schedule and
the terms set forth in this affiliate agreement. There is no third tier
program or commission at this time.
3 Affiliate Responsibilities.
3.1 Minimum Age. You agree that you are 18 years of age or older on the
date that you first approve the terms hereof. You agree that you are in
a jurisdiction where participation in the HostTheBest affiliate program
does not violate any law, ordinance, regulation or standard.
3.2 Operative Link. You agree to take full responsibility for ensuring
the proper and continuing operation of your coded URL. You agree that
you will notify HostTheBest if your coded URL ceases to function or
ceases to function properly.
3.3 Representations. You agree that you will not make any
representations, promises, warranties or other statements about
HostTheBest or the HostTheBest web site, products or policies other than
as may be expressly approved in writing by HostTheBest or as other wise
provided to you by HostTheBest for that purpose.
3.4 Link. You may use the coded URL provided by HostTheBest via the
available HostTheBest Link Library or in any other form you wish
provided that your use of the URL is not in any way disparaging of
HostTheBest or otherwise not appropriate or acceptable in HostTheBest
sole opinion and judgment. You may not violate any copyright, trademark
or other intellectual property right of HostTheBest or any other party.
You may not violate the HostTheBest General Terms of Service.
3.5 Amendments. You agree that this agreement may be amended by
HostTheBest at any time without notice to you. You agree to keep advised
of any changes to this agreement by checking the HostTheBest web site on
a periodic basis.
3.6 Customers of HostTheBest. HostTheBest will have the sole right and
responsibility to service all customers secured through your coded URL.
All dealings with customers for web hosting and related services shall
be directly and solely between customer and HostTheBest. HostTheBest
shall have the right and obligation to determine all pricing and product
offerings and shall have the right to make any changes thereto without
notice to affiliate.
4 Commissions.
4.1 Commission Rate. Commissions are paid on a monthly basis for each
new account purchased via your coded URL subject to the terms and
conditions set forth herein. There will be no obligation to pay any
other commission. The current commission rate for a first tier affiliate
sale is 40%.
4.2 Payment Date. HostTheBest will pay to you all qualified commissions
on or before the end of the month following the date upon which the
commission becomes a qualified commission.
4.3 Payment Form. Commissions will be paid either via HostTheBest check
sent to the address you provide at registration or directly to your
PayPal account provided at registration. Any changes to this preference
may be made via email to affiliates (at) hostthebest.net. HostTheBest is
not responsible for any loss or damage sustained as the result of any
dealings with or otherwise arising out of disputes with PayPal.
5 Ownership and Licenses.
5.1 Property Ownership. Each party to this agreement shall retain all
right, title and interest in its names, logos, trademarks, service
marks, trade dress, copyrights and proprietary technology, including,
without limitation, those names, logos, trademarks, service marks, trade
dress, copyrights and proprietary technology currently used or which may
be developed and/or used by it in the future.
5.2 License. HostTheBest grants you as an affiliate a revocable,
non-exclusive, worldwide License to use, reproduce and transmit the
HostTheBest logos, trademarks and service marks on your site and only
your site for the sole purpose of facilitating a link between your site
and HostTheBest to accomplish the purpose and intent of this affiliate
agreement. You may also use the links and images located in the link
library prepared specifically for that purpose subject to the same terms
and conditions. You may not otherwise use, copy, distribute, change,
modify, or otherwise alter any such property. This License is neither
assignable nor transferable.
5.3 Cease use upon demand. You agree to immediately cease the use of any
mark upon request made by HostTheBest to the email address provided by
you and maintained on file for you by HostTheBest. You agree to
immediately cease the use of any link created by you to HostTheBest upon
request by HostTheBest to the email address provided by you and
maintained on file for you by HostTheBest.
6 Termination.
6.1 Effect upon Commission. Either party may terminate this agreement at
any time upon notice in writing to the other party. Other than any
termination under paragraph 6.2 herein, any commission which has become
a qualified commission as of the date of such termination will be paid
post termination. Any commission which is not a qualified commission as
of the date of notice of termination shall not thereafter become a
qualified commission.
6.2 Breach of this agreement. The breach of this agreement, or any
provision thereof, knowingly or otherwise, willful or otherwise, is
grounds for immediate suspension or at the sole option of HostTheBest
termination of this agreement in it’s entirety.
6.2.1 Suspension. Suspension under this paragraph shall mean the
withholding of all commission payments qualified or otherwise until such
breach is cured. Suspension if not cured within a reasonable time as
determined by HostTheBest will become a termination under 6.2 as of the
date of the initial suspension.
6.3 Survival. Upon termination of this agreement all rights and licenses
granted by this agreement are immediately revoked. Paragraph 3.6,
section 6 (Termination), Paragraphs 7.1 through 7.14 (inclusive) and
7.16 – 7.19 shall survive such termination and remain in full force and
effect.
7 General.
7.1 Authority. Each party represents to the other that it has full
binding authority to enter into this agreement and in the case of any
entity other than an individual that the parson assenting to the terms
of this agreement has the full binding authority of the entity
purportedly bound.
7.2 Non-Infringement. You agree that in the course of any performance
under this agreement or otherwise with respect to any dealings between
you and HostTheBest that you will not infringe on any third party's
copyright, patent, trademark, trade secret or other proprietary rights
or right of publicity or privacy.
7.3 Violation of Law. That you will not violate any applicable law,
ordinance, regulation or standard.
7.4 Terms of Service. You agree that in the course of any performance
under this agreement or otherwise with respect to any dealings between
you and HostTheBest that you agree to be bound by the HostTheBest
General Terms of Service which are incorporated herein as though set
forth at length herein.
7.5 Unsolicited Email. You agree that in the course of any performance
under this agreement or otherwise with respect to any dealings between
you and HostTheBest that you will not use or otherwise permit the use of
unsolicited commercial email (a.k.a. SPAM) in relation to the
HostTheBest Affiliate program.
7.6 Defamation/Libel. You agree that in the course of any performance
under this agreement or otherwise with respect to any dealings between
you and HostTheBest that you will not transmit any information which is
or might be considered to be defamatory or libelous.
7.7 Decency. You agree that in the course of any performance under this
agreement or otherwise with respect to any dealings between you and
HostTheBest that you will not transmit any information which is or might
be considered to be lewd, pornographic or obscene;
7.8 Unfair Competition. You agree that in the course of any performance
under this agreement or otherwise with respect to any dealings between
you and HostTheBest that you will not violate any laws regarding unfair
competition (including but not limited to California Business and
Professions Code section 17200), anti-discrimination or false
advertising or the HostTheBest General Terms of Service.
7.9 Promote Violence. You agree that in the course of any performance
under this agreement or otherwise with respect to any dealings between
you and HostTheBest that you will not take any action which might
promote violence or contain hate speech.
7.10 Damage HostTheBest. You agree that in the course of any performance
under this agreement or otherwise with respect to any dealings between
you and HostTheBest that you will not take any action that would in any
way damage HostTheBest or otherwise compromise it’s servers or equipment
including utilize or otherwise transmit at any time contain viruses,
Trojan horses, worms, time bombs, cancelbot or other similar harmful or
deleterious programming routines.
7.11 No Automatic Links. You agree not to utilize any link that is or
can be initiated automatically without the user clicking on the link.
7.12 WARRANTY DISCLAIMER. YOU ACKNOWLEDGE AND AGREE THAT ANY SERVICES OR
MATERIALS PROVIDED BY HOSTTHEBEST PURSUANT TO THIS AGREEMENT ARE
PROVIDED AS IS, WITH ALL FAULTS AND AS AVAILABLE, AND THAT HOSTTHEBEST
MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, AND SPECIFICALLY DISCLAIMS, ON ITS OWN BEHALF ON AND BEHALF
OF ITS SUPPLIERS, DISTRIBUTORS AND LICENSORS, ANY WARRANTIES AS TO THE
USEFULNESS, ACCURACY, RELIABILITY OR EFFECTIVENESS OF ANY SERVICES OR
MATERIALS PROVIDED HEREUNDER OR THAT THE SERVICES PROVIDED HEREUNDER
WILL BE UNINTERRUPTED, ERROR FREE OR AVAILABLE THROUGH ANY PARTICULAR
METHOD OF DISTRIBUTION, OR THAT ANY SERVICES OR MATERIALS PROVIDED
PURSUANT TO THIS AGREEMENT WILL WORK WITH EVERY INTERNET BROWSER, OR
THAT DEFECTS HAVE BEEN OR WILL BE CORRECTED, OR THAT SUCH SERVICES OR
MATERIALS WILL MEET THE NEEDS OF ANY PARTY. WITHOUT LIMITING THE
FOREGOING, AND EXCEPT AS OTHERWISE PROVIDED HEREIN, HOSTTHEBEST
DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT. IN NO EVENT WILL HOSTTHEBEST BE LIABLE TO
YOU FOR ANY SERVICE FAILURE, DISRUPTION, DOWNTIME OR INCORRECT LINKAGE
UNDER THIS AGREEMENT.
7.13 LIMITATION OF LIABILITY. IN NO INSTANCE SHALL HOSTTHEBEST BE LIABLE
TO YOU FOR LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR
INDIRECT DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY
(INCLUDING WITHOUT LIMITATION, NEGLIGENCE), ARISING OUT OF OR RELATED TO
THIS AGREEMENT WHETHER OR NOT HOSTTHEBEST HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE THAT COMMISSIONS AGREED
UPON IN THIS AFFILIATE AGREEMENT ARE BASED IN PART UPON THESE
LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY
FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. Notwithstanding the
foregoing, this section shall not limit either party liability to the
other for (i) willful or malicious misconduct; (ii) gross negligence;
(iii) indemnification under Section 7.12 or (iv) either party’s
liability for death or personal injury or their own acts of fraud.
7.14 Indemnification. You agree to indemnify, defend and hold harmless
HostTheBest and its affiliates, directors, officers, employees and
agents, harmless of and from any and all liability, losses, damages,
injuries or expenses (including attorney’s fees and expert witness
charges) arising out of any claimed or alleged action or inaction toward
any third party whether such claimed or alleged action or inaction
arises out of a claim of misuse of copy written materials, License
violation, domain misuse, trademark misuse or any active or passive
negligence.
7.15 Independent Contractors. Each party shall act as an independent
contractor and shall have no authority to obligate or bind the other in
any respect.
7.16 Choice of Laws /Venue. This Agreement has been made in and shall be
construed and enforced in accordance with the laws of the state of New
York. Any action to enforce this Agreement shall be brought in the
federal or state courts located in the County of Los Angeles.
7.17 Severability. The provisions of this Agreement are independent of
and separable from each other, and no provision shall be affected or
rendered invalid or unenforceable by virtue of the fact that for any
reason any other or others of them may be invalid or unenforceable in
whole or in part.
7.18 Integration. This agreement constitutes the entire understanding of
the parties and revokes and super cedes any and all prior agreements and
is intended to be a full and complete expression of the agreement
between the parties. This agreement shall not be modified except in
writing by the posting of a new agreement by HostTheBest on the
HostTheBest web site.
7.19 Use constitutes Signature. Your agreement to the terms set forth
herein is manifested by any participation in the HostTheBest affiliate
program including the submission of the affiliate application form and
the collection of any commission under this agreement. This agreement
may be modified, amended, altered or otherwise changed by HostTheBest
without notice to any other party other than changing the agreement
itself made available by HostTheBest to the affiliates on the
HostTheBest web site.
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