This Agreement, (“Agreement”), represents the complete agreement and understanding between Rivercity Internet Group, L.L.C., a Missouri limited liability company d/b/a Hostirian (referred to herein as “HOSTIRIAN”) on the one hand, and the affiliate, (“AFFILIATE”), on the other and the establishment of links from the Affiliate’s website to our website, https://www.hostirian.com, and supersedes any other written or oral agreement. Upon notice published on its Website, Hostirian may modify these terms and conditions, amplify them, and/or modify the commissions, as well as discontinue or change services offered.
WHEREAS, CUSTOMER desires to participate in Hostirian’s Affiliate Program upon the terms and conditions provided herein;
WHEREAS, HOSTIRIAN will provide the affiliate services (the “Services”) necessary for the Affiliate to earn recurring referral commissions;
NOW, THEREFORE, in consideration of the above premises and the promises and mutual covenants contained herein, the parties hereto, intending to be legally bound, hereby agree as follows:
“Affiliate” – The business, individual, or entity applying to or participating in the Affiliate Program, or that displays Hostirian’s products and Services and/or promotions on its website, or other means, using an affiliate tracking code in exchange for receiving a commission from Hostirian for sales directly resulting from such display.
“Affiliate Site” – The Affiliate’s website which displays Hostirian’s Products and Services and/or promotions.
“Hostirian’s Products and Services” – Web hosting and related products and services that are available for purchase from Hostirian.
“Commission Fees” – The amount you will be paid for each Qualified Purchase by a Referred Customer that you refer to Hostirian subject to the Commission Threshold and pursuant to the terms of this Agreement.
“Commission Threshold” – The amount of Commission Fees an Affiliate must accrue prior to receiving a payment from Hostirian.
“Referred Customer” – Each new and unique customer referred from Affiliate through a Link that provides valid account and billing information.
“Registration Form” – Any and all order forms or other signup or acceptance form submitted by a customer to purchase Hostirian’s Products and Services.
B. Promotion of Our Affiliate Relationship
- Use of Links. If you qualify and agree to participate as an Affiliate, we will make a variety of graphic and textual links available to you (each referred to herein as a “Link” or collectively, as the “Links”). The Links will serve to identify your website as a member of the Affiliate Program and will establish a link from your website or e-mail to Hostirian’s website. You agree to cooperate fully with us in order to establish and maintain such Links. You further agree that your use of the Links must be in compliance with this Agreement at all times. Hostirian may modify the Links from time to time in its sole discretion. You will not use graphic or textual images (indicating a Link) or text messages to promote Hostirian that are not approved in advance by Hostirian. All Affiliate Sites shall display the Links prominently in relevant sections of their website. Furthermore, you agree not to use cookie stuffing techniques that set the affiliate tracking cookie without the Referred Customer’s knowledge (e.g. iframe). Any information with respect to Hostirian that is going to be displayed on the Affiliate Site must be pre-approved by Hostirian in writing.
- Disclaimer.EXCEPT AS PERMITTED HEREIN, YOU SHALL NOT AND ARE NOT AUTHORIZED TO (i) USE THE HOSTIRIAN NAME OR ANY OF OUR OTHER INTELLECTUAL PROPERTY, INCLUDING WITHOUT LIMITATION, THE LINKS, AND THE LICENSED MATERIALS (COLLECTIVELY, THE “HOSTIRIAN IP”) (OR ANY VARIATIONS OR MISSPELLINGS THEREOF OR OTHER TERM OR TERMS CONFUSINGLY SIMILAR TO ANY OF THE FOREGOING) WITHOUT HOSTIRIAN’S EXPRESS PRIOR WRITTEN PERMISSION; (ii) USE HOSTIRIAN IP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), KEYWORDS, ADVERTISING, SEARCH TERMS, CODE, OR OTHERWISE; (iii) ACT IN ANY WAY THAT CAUSES OR CREATES OR COULD CAUSE OR CREATE ANY “INITIAL INTEREST CONFUSION” OVER THE USE OF THE HOSTIRIAN IP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. YOUR USE OF HOSTIRIAN’S IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF HOSTIRIAN’S INTELLECTUAL PROPERTY RIGHTS, AND MAY SUBJECT YOU TO CLAIMS FOR DAMAGES (INCLUDING POTENTIAL TREBLE DAMAGES FOR KNOWING OR WILLFUL INFRINGEMENT), AND THE OBLIGATION TO PAY HOSTIRIAN’S LEGAL FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH HOSTIRIAN SEEKS TO ENFORCE ITS RIGHTS UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF HOSTIRIAN’S INTELLECTUAL PROPERTY RIGHTS.
- Discounts and Coupons.You are not allowed to post any refunds, credits or discounts on Hostirian’s Products and Services, or other content concerning Hostirian without Hostirian’s prior written consent in each instance. Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Program using banners and links. Each Link connecting users of the Affiliate Site to the pertinent area of the Hostirian website will in no way alter the look, feel, or functionality of the Hostirian website. Any violations of the terms surrounding links, coupons, refunds, credits or discounts shall constitute a material breach of this Agreement, and may result in your termination from the Affiliate Program or the withholding of Commission Fees.
C. Enrollment in the Affiliate Program
- To begin the enrollment process, you must submit a completed Affiliate Program Signup Form. The Sign-up Form can be found at https://my.hostirian.com/affiliates.php. We will evaluate your application in good faith and will notify you of your acceptance or rejection in a timely manner. We may reject your application if we determine (in our sole discretion) that your website is not suitable for the Affiliate Program for any reason, including, but not limited to, its inclusion of content that is, in our opinion, unlawful or otherwise violates our terms of service. If we reject your application, for any reason, you may not re-apply to the Affiliate Program utilizing the same domain name/URL or reapply using a different domain/URL name and then add the previously rejected domain name/URL to your affiliate account. Hostirian, in its sole discretion, reserves the right to notify any prospective affiliate of their rejection or removal from the Affiliate Program at any time.
D. FTC Endorsement Compliance
- It is the intent of Hostirian to treat all of our customers fairly. Accordingly, we require all Hostirian Affiliates to comply with applicable laws, regulations and guidelines concerning advertising and marketing, including without limitations, the Federal Trade Commission (FTC) Endorsement Guides , which require that material connections between advertisers and endorsers be disclosed. This means that all Affiliate Sites (e.g. directories, review/rating websites, blogs, and other websites) and any email or collateral that provide an endorsement or assessment of Hostirian’s Products and Services must prominently disclose the fact that you receive compensation for Referred Customers.
- For more information and suggestions about how to comply with these guidelines, please visit “Affiliate Marketing Rules.” Please note that this page is only intended to provide guidance. It does not purport to provide legal advice and it does not guarantee that you’ll be in compliance with FTC regulations should you follow the suggestions presented. You are advised to seek and obtain your own legal advice on how these rules apply to your website or other promotional activities for which you receive compensation.
- Hostirian reserves the right to withhold Commission Fees and cancel the affiliate relationship with you should we determine, at our sole discretion, that you are not in compliance with the previously mentioned guide or other FTC regulations or guides that we deem relevant.
E. Data Security
In addition to the obligations set forth in Section D (FTC Endorsement Compliance), Affiliate shall comply
with all applicable data protection laws regarding the transmission of data exported to or from the United States or the country in which Affiliate resides, including without limitation, the General Data Protection Regulation 2016/679 of European Parliament and of the Council of 27 April 2016 (the “GDPR”). Affiliate, as a controller under the GDPR, shall also implement appropriate technical measures to ensure a level of security appropriate to the risk, taking into account the nature, scope, context, and purpose of processing any personal data. Affiliate agrees to promptly assist Hostirian in complying with any data subject rights request under the GDPR that Hostirian may receive from any individuals referred to Hostirian by Affiliate. Affiliate further agrees to promptly assist Hostirian in complying with any duties to cooperate with supervisory authorities under the GDPR.
F. Order Processing
Hostirian will process orders placed by Referred Customers who follow the Links from an Affiliate Site to Hostirian. We reserve the right, in our sole discretion, to reject orders that do not comply with certain requirements that we may establish from time to time. All aspects of order processing and fulfillment, including Hostirian’s services, cancellation, processing, refunds and payment processing will be our responsibility. We will track the Qualified Purchases generated by your Affiliate Site and will make this information available to you through our website. To permit accurate tracking, reporting, and commission accrual, you must ensure that the Links between your website and our website are properly formatted.
G. Commission Determination; Qualified Purchases
Commissions will be calculated based on the commission rates stated on the Hostirian website for each Qualified Purchase (as defined herein) subject to commission accruing. A “Qualified Purchase” does NOT include the following:
- A purchase by a Referred Customer that has transferred from any Hostirian partners or subsidiaries.
- A purchase by a Referred Customer who is also associated with any Hostirian reseller, referral, or other program.
- A purchase by a Referred Customer that is not up-to-date on its payments or is subject to a refund, referral, or other program.
- A purchase that was completed prior to the Affiliate joining the Affiliate Program or was not tracked properly through an Affiliate Link.
- A purchase by a Referred Customer that has not been in good standing for a period of at least sixty-three (63) days or is in violation of Hostirian’s Terms of Service https://www.Hostirian.com/terms-of-service, or other applicable policies at the time the Commission Fees accrue.
- A purchase that Hostirian suspects, in its sole discretion, is the result of fraud, which shall include but is not limited to, the use of software that generates real and fictitious information, multiple accounts from the same customer, or the referral of accounts that do not comply with this Agreement.
- A purchase referred by an Affiliate that has an excessive cancellation rate as determined in Hostirian’s sole discretion.
- A purchase by a Referred Customer if the Referred Customer was offered or received coupons, refunds, credits or discounts from the Affiliate.
- A purchase by a Referred Customer if the Affiliate or Referred Customer is in or is promoting a business-opportunity program, as determined by us in our sole discretion.
- A purchase by a Referred Customer who received a popup with a discounted offer, while leaving Hostirian’s website during their purchase.
- A purchase by a Referred Customer engaging in “Domain Speculation,” which is determined by the identification of two (2) web hosting accounts with the same Referred Customer’s name, email address, or other identifying characteristics as determined by Hostirian and/or the identification of two (2) or more web hosting accounts that have content on their websites or have similar content, templates or formatting, as determined by Hostirian, in our sole discretion.
- Hostirian reserves the right to withhold payment of Commissions Fees to Affiliates who have commissions that are potentially fraudulent as determined by Hostirian in its sole discretion, to determine the legitimacy and cancellation rates of Referred Customers.
- Hostirian reserves the right to suspend the payment of Commission Fees at any time and indefinitely, if it suspects fraud or other improper activity or a potential breach of any of the terms of this Agreement by the Affiliate or a Referred Customer. Hostirian reserves the right to deduct from Affiliate’s current and future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, and cancelled purchases.
- Hostirian reserves the right to immediately cancel or withhold for later review any Commission Fee that fails to meet the criteria of a “Qualified Purchase.” Affiliate is responsible for monitoring the payment, denial and, withholding of Commission Fees. Hostirian is not obligated to actively notify Affiliates of the status of Commission Fees. If Affiliate has a question about a Commission fee that has been cancelled or withheld, Affiliate has thirty (30) days from the day of the payment would have been due to contact Hostirian to request that the Commission Fee be paid. Any changes to decisions about cancelled or withheld Commission Fees are strictly made in Hostirian’s sole discretion.
- Commissions for any Referred Customer who is associated with any Hostirian reseller, referral or other program may not be considered a Qualified Purchase. In other words, you may not receive double commissions or compensation.
- In the event that the Referred Customers that are referred to Hostirian by an Affiliate are determined to have an excessive cancellation rate, as determined by Hostirian in its sole discretion. Hostirian reserves the right to withhold or decline pending and future Commission Fees to such Affiliate.
- Any attempt by an Affiliate to manipulate, falsify or inflate the Referred Customers, Qualified Purchases, or Commission Fees to intentionally defraud Hostirian or any violation of the terms of this Agreement constitutes immediate grounds for Hostirian to terminate the Affiliates participation in the Affiliate Program and will result in the forfeiture of any Commission Fees due to the Affiliate.
H. Accrual of Commissions
Commissions will accrue and only become payable once you (i) provide all relevant tax and address documentation and (ii) reach the Commission Threshold of $25 based on the commission rates stated on the Hostirian website, solely as applied to Qualified Purchases which occurred within sixty-three (63) days of the end of the calendar month in which the first of such Qualified Purchases occurred. All Qualified Purchases eligible to result in commissions must remain active and in good standing pursuant to the terms of this Agreement in order to remain eligible for accrual of a commission. Hostirian reserves the right to change the Commission Threshold by amending this Agreement and will notify you for any such amendment pursuant to the terms of this Agreement.
I. Payment Requirements
- As a Hostirian affiliate, you may earn a recurring referral commission when a referred customer makes a payment for any hosting service including dedicated, VPS and cloud web hosting. All orders must be for the purchase of Hostirian hosting services by a new and unique customer who arrives at Hostirian by clicking on an affiliate tracking link, and maintains an active paid account with Hostirian for a minimum of 63 days.
- In the event that multiple affiliates refer the same unique customer, only the last referrer before the customer orders Hostirian services will receive credit for the referral.
- Referred customers must maintain an active hosting service during any free trial and/or money-back guarantee periods applicable in order for the affiliate commission to be considered earned. Affiliates will not receive commissions from customers who cancel their hosting service, receive a refund, or become suspended during their free trial and/or money-back guarantee periods.
- Affiliates are solely responsible for keeping all information up-to-date, including postal and email addresses, name, payment information, tax information and any other personal information that will impact the ability to issue a valid payment. Each affiliate is required to submit an accurate and up-to-date W-8/W-9 tax form. If we do not receive the necessary tax or payment information from you within ninety (90) days of a qualifying referral sale that would otherwise trigger a commission, such commission shall not accrue and no resulting commission will be owed with respect to such sale. Affiliate tax information is required to be on file in order for commissions to accrue and become payable.
- Missing or untracked affiliate referrals must be reported within 14 days of the qualifying referred sale and will be credited to your account at our sole discretion, provided that such credit has accrued pursuant to all terms in the Affiliate Terms of Service. Referrals that are not reported during the then-current referral period will not be credited to your account.
- Earned commissions are available for redemption after the 63-day holding period, provided that the affiliate has chosen to cash out their commissions via the Hostirian panel. Earnings are first credited against any unpaid services incurred by the affiliate. For affiliates who have an earnings balance in excess of $25 (after applying against unpaid services), earned commissions will be paid out via PayPal.
- Affiliates are responsible for making sure they are able to accept payments. Please ensure that your PayPal account can accept payments from US-based companies.
- Affiliates are responsible for all fees, taxes, exchange rates, surcharges and other expenses incurred in order to receive their commissions. Please check with your bank or PayPal to find out if any of these apply to your account.
- In the event of possible credit card fraud and high cancellation rates, Hostirian reserves the right to hold commissions for up to two (2) additional months for verification. At Hostirian’s sole discretion, we reserve the right to cancel commissions in the event that we are unable to collect funds from the referred customer, the order is fraudulent, the customer cancels within the first 63 days, or if it is found that the commission was earned improperly for any other reason.
- If a referred customer initially purchases a hosting package with a term of at least one (1) year and then downgrades their hosting package to a term of less than one (1) year within one (1) year of their initial purchase, the applicable commissions paid to the affiliate will be reversed and deducted from future earnings.
- Referred customers that issue a chargeback or are found to be fraudulent (e.g. false information, fake/stolen credit cards, selling counterfeit goods etc.), as determined at Hostirian’s sole discretion, will be reversed regardless of the amount of time that has passed since the signup occurred.
K. Promotional Codes:
- Promo codes will not be accepted as a method for tracking affiliate sales. Please review your panel to obtain current affiliate referral links for Hostirian.
- Use of other affiliates or Hostirian promo codes and offers, which were not created by the referring affiliate, could result in the loss of all commissions and terminate the offending affiliate’s partnership. Promo codes only work for totally new customers (not for existing customers adding more services or new customers trying to host domains that are already in our system).
L. Affiliate Restrictions and Responsibilities:
- Hostirian does not accept “coupon-only” sites in our affiliate program. We reserve the right to deactivate any account that uses coupons/discounts as a primary method of promotion at our sole discretion.
- Affiliates MAY NOT use cookie-stuffing techniques that set the tracking cookie without the user actually clicking on the referral link (for example, a 1×1 pixel iframe).
- Affiliates are responsible for ensuring that their tracking code is working properly before sending traffic to Hostirian’s servers. Any modification to the links is the sole responsibility of the affiliate. Rewards may not be paid for tracking errors caused by editing, masking, redirecting, or tampering with affiliate links, as determined at Hostirian’s sole discretion.
- Domain forwarding is prohibited — you may not purchase a domain and set it to forward directly to our site using your affiliate link.
- Affiliates MAY NOT copy Hostirian’s website or any portions of it, including, without limitation, any of Hostirian’s trademarks or other intellectual property, and display them on their own site or subdomain or use them in any way without Hostirian’s prior expressed written permission.
- Do not bid or otherwise purchase, either directly or indirectly, the search name “Hostirian” or any misspelling or variant thereof from websites, search engines or other directory referral services.
- Violations of our Anti-Spam Policy or our Terms of Service will result in immediate forfeiture of all commission payments. Additionally, you are prohibited from (1) outranking Hostirian’s internal paid search ad on any keywords, (2) direct linking to hostirian.com from any paid search ads, and (3) using hostirian.com as a display URL.
- Gaining referrals through misrepresentation, improper use of Hostirian intellectual property (ie. Hostirian trademarks and copyrighted material) or impersonation of Hostirian personnel is strictly prohibited and can result in loss of accrued commissions and/or removal from the program.
- Referred accounts must use different billing and payment methods from the referrer to qualify for commissions.
- Customers cannot refer themselves or their spouse/civil union partner. No exceptions will be made. Violations can result in the loss of all accrued commissions and dismissal from the program.
M. Commission Payments
- Subject to terms of this Agreement and the accrual of commissions as set above, commissions will be calculated according to the specified percentage or dollar amount set forth in the commission report in your Affiliate Console for each Qualified Purchase that accrues during the period in which such commission fee is being calculated.
- Hostirian will only compensate you for Qualified Purchases made in accordance with this Agreement.
- Commission Fees shall be paid based on the current information in your Affiliate profile. You are required to notify us promptly of any change in your address by updating your profile information in the Affiliate console. You are responsible for informing Hostirian of your desired payment form/type. You can update or change your desired payment method at any time by updating your Affiliate profile located in the Affiliate console.
N. Commission Fees are subject to the
- PayPal Payments:Please refer to PayPal’s policy to ensure you are eligible to receive payment if you reside outside of the United States
(PayPal payments will only be reissued within one hundred and twenty (120) days of the original issue date in the case of an incorrect PayPal address or refusal from PayPal to accept a payment.)
- Hostirian is not responsible for paying any third-party fees charged by PayPal in order for you to receive Affiliate Commission Fees.
- Hostirian, in its sole discretion, reserves the right to modify the available commission payment methods or payment schedule at any time. Such changes shall take effect when posted.
- Disputes: Affiliate has access to Hostirian’s real-time Affiliate Program statistics and agrees to file any disputes within forty-five (45) days after the end of the month in which the sale or event that is disputed occurred. Disputes filed after forty-five (45) days of the date on which the disputed sale or event occurred will not be accepted by Hostirian and Affiliate forfeits forever any rights to a potential claim.
- It is solely your responsibility to provide Hostirian with accurate tax and payment information that is necessary to issue a Commission Fee to you. If Hostirian does not receive the necessary tax or payment information within sixty-three (63) days of a Qualified Purchase which would otherwise trigger Commission Fees, the applicable commissions shall not accrue and no Commission Fees will be owed
with respect to such Qualified Purchase.
- Each Affiliate is required to submit a W8/W9 tax form before any Commission Fees shall accrue. You are responsible for the payment of all taxes related to commissions you receive under this Agreement. In compliance with U.S. tax laws, Hostirian will issue a Form 1099 to Affiliate whose earnings meet or exceed the applicable threshold.
- Any address change must be made in the Affiliate profile in the affiliate console at least fifteen (15) business days prior to the end of the calendar month in order for Commission Fees for that month to be processed.
- PayPal Payments:Please refer to PayPal’s policy to ensure you are eligible to receive payment if you reside outside of the United States
O. Reports of Qualified Purchases
You may log into your affiliate console to review your click through and potential Qualified Purchases statistics on a daily basis. The potential Qualified Purchases shown in this report have not been reviewed to confirm they meet all criteria for Qualified Purchases. As such, Commission Fees may not be issued for all Referred Customers that appear in the affiliate console.
P. Obligations Regarding Your Affiliate Site
- You are solely responsible for the development, operation, and maintenance of your Affiliate Site and for all materials that appear on your Affiliate Site. Such responsibilities include, but are not limited to, the technical operation of your Affiliate Site and all related equipment; creating and posting product reviews, descriptions, and references on your Affiliate Site and linking those descriptions to our website, the accuracy of materials posted on your Affiliate Site (including, but not limited to, all materials related to Hostirian Products and Services); ensuring that materials posted on your Affiliate Site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability and responsibility for such matters.
- We have the right in our sole discretion to monitor signups through your Affiliate Site from time to time to determine if you are in compliance with the terms of this Agreement. If you are not in compliance, we may terminate your participation in the Affiliate Program effective immediately.
- Hostirian Responsibilities
We will provide all of the information necessary for you to make Links from your Affiliate Site to our site. Hostirian will be solely responsible for order processing (including processing, cancellations, and refunds) for orders for Hostirian Products and Services placed by a Referred Customer following a Link from your Affiliate Site, for tracking the volume and amount of Qualified Purchase statistics. Hostirian will be solely responsible for all order processing, including but not limited to payment processing, cancellations, refunds, and related Hostirian service.
- Policies and Pricing
Referred Customers who buy Hostirian Products and Services through our affiliate network are deemed to be Hostirian Customers. Hostirian’s Terms and Conditions, rules, policies, and operating procedures will apply to such customers. We may change our policies, pricing, and operating procedures at any time. For example, Hostirian determines the prices to be charged for Hostirian Products and Services sold through the affiliate network in accordance with our own pricing policies. Prices and availability of Hostirian Products and Services may vary from time to time, from affiliate to affiliate, and from region to region. Because price changes may affect products that you have listed on your Affiliate Site, you may or may not be able to include price information in your product descriptions. We will use commercially reasonable efforts to present accurate information on our website, but we cannot guarantee the availability or price of any particular Hostirian Product or Service.
- Emails and Publicity
You shall not create, publish, transmit or distribute, under any circumstances, any bulk email messages (also known as “SPAM”) without prior written consent from Hostirian, to be granted or denied in Hostirian’s sole discretion, in each instance. Additionally, you may only send emails containing a Hostirian affiliate link and or a message regarding Hostirian or Hostirian’s Affiliate Program to people who have previously consented to receiving such communications from you. Your failure to abide by this, the CAN-SPAM Act of 2003, our Terms of Service, and all applicable laws relating to email communications, in any manner, will be deemed a material breach of this Agreement by you and will result in the forfeiture by you of any and all rights you may have to any commissions and the termination of your participation in the Affiliate Program. Further, if your account has excessive clicks in a very short period of time as determined by Hostirian in its sole discretion, the Affiliate relationship may be terminated.
- Hostirian Responsibilities
Q. Licenses and Use of Hostirian Logos and Trademarks
- Subject to the limitations set forth above and otherwise in this Agreement, we grant you a non-exclusive, non-transferrable, revocable license to (i) access our website through the Links solely in accordance with the terms of this Agreement and (ii) solely in connection with such Links, to use Hostirian trademark and logo and similar identifying material provided by us (collectively, the “Licensed Materials”), for the sole purpose of selling Hostirian Products and Services on your Affiliate Site and as approved in advance by us. You may not alter, modify, or change the Licensed Materials in any way. You are only entitled to use the Licensed Materials while you are an Affiliate in good standing and in compliance with all of the terms of this Agreement.
- You shall not use the Licensed Materials for any purposes other than selling Hostirian Products and Services, without first submitting a sample to us and obtaining the express prior written consent of Hostirian in each instance. You shall not use the Licensed Materials in any manner that is disparaging or that otherwise portrays Hostirian, any hosted member of Hostirian or any Hostirian employee or representative in a negative light.
- You grant to us a non-exclusive license to utilize your name, title, trademarks, and logos in any advertisement or other materials used to promote Hostirian and the Affiliate Program, provided that Hostirian’s use of the Affiliate Trademarks is not required and is at its sole discretion. This license shall terminate upon the termination of your participation in the Affiliate Program.
- We reserve all of our rights in the Licensed Materials and your license to use such material is limited to the manner described herein. We may revoke your license at any time, by giving you written notice. If not previously revoked, this license shall immediately terminate upon the termination of your participation in the Affiliate Program.
R. Term and Termination
- The term of this Agreement will begin upon our acceptance of your Affiliate Program application and will end when terminated by either party (the “Term”). Either party may terminate this Agreement at any time, with or without cause.
- You are only eligible to earn Commission Fees on Qualified Purchases occurring during the Term. Commission Fees earned prior to the date of termination will be eligible for commissions only if the orders for the related Hostirian Products and Services are not cancelled within 63 days and comply with all of the terms of this Agreement. We may withhold your final payment of Commission Feeds for a reasonable time to ensure that all Qualified Purchases are valid and payment from Referred Customers are legitimate as determined by Hostirian in its sole discretion.
- Any Affiliate who violates this Agreement, Hostirian’s Terms and Conditions, or any applicable law will immediately forfeit any right to any and all accrued, but not yet received, Commission Fees and will be immediately removed from the Affiliate Program.
- Hostirian reserves the right to remove an Affiliate from the Affiliate Program, and to terminate or suspend this Agreement, at any time for any reason, in Hostirian’s sole discretion.
We may notify this Agreement at any time in our sole discretion; provided that the change shall solely apply to events occurring after the date on which you accept and agree to such modifications unless you otherwise agree herein. Such modifications shall take effect when posted on our website. Modifications may include, but are not limited to, changes in the scope of available Commission Fee, commission amounts or percentages, payment procedures, Commission Fee payment schedules, and Affiliate Program rules. If any modification is unacceptable to you, your only recourse is to terminate this agreement, in which event you shall be entitled to your rights under the unmodified Agreement prior to the date of the applicable modification. Your continued participation in the Affiliate Program following our posting of any modifications on our website will constitute binding acceptance of the change.
We make no express or implied warranties or representations with request to the Affiliate Program or any Hostirian Products and Services sold through the Affiliate Program (including, without limitation, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). In addition, we make no representative that the operation of our website will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors, including the tracking of information concerning Referred Customers during any period of interruption.
U. Relationship of Parties
You and Hostirian are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your Affiliate Site or otherwise, that contradicts anything in this section.
V. Representation and Warranties
You hereby represent and warrant to us as follows:
- You have reviewed and understand this Agreement and agree to be bound by its terms.
- Your acceptance of this Agreement and participation in the Affiliate Program will not violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgement, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
- You are the sole and exclusive owner of the affiliate Trademarks and have the power to grant to Hostirian the license to use such marks in the manner contemplated herein, and such grant will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietor right of any third person or entity.
- You are not required to obtain consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party in connection with your entrance into this Agreement.
- There is no pending or threatened claim, action, or proceeding against you, or any affiliate of yours with respect to the Affiliate Trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
- During the Term, you will not include in your Affiliate Site content that is, in our opinion, unlawful, harmful, threatening, defamatory, obscene, harassing, racially, ethically, or otherwise objectionable or are in violation of our Terms of Service.
- You are at least eighteen (18) year of age.
- Each Referred Customer is valid, genuine, and unique and meets the criteria of a Qualified Purchase for generating a Commission Fee as provided in this Agreement.
W. Limitation of Liability
WE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT DURING THE SIXTY-THREE (63) DAY PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
You hereby agree to indemnify and hold harmless Hostirian and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgements, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (III) any claim related to your Affiliate Site, including, without limitations, its development, operation, maintenance and content therein not attributable to us.
Each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, Hostirian and vendor lists, and pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party any obligation of confidentiality to the discloser hereunder. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, and the rules promulgated thereunder.
- Independent Investigation
You understand that we may at any time (directly or indirectly) solicit Hostirian relationships on terms that may differ from those contained in this Agreement. We may also solicit relationships with entities that operate websites that are similar to or compete with your Affiliate Site. You have independently evaluated the desirability of participating in the Hostirian Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
Governing Law.The laws of the state of Missouri will govern this Agreement, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in St. Louis, Missouri and you irrevocably consent to the jurisdiction of such courts.
Assignment. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
Waiver. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.