Hostragon's website at any time and from time to time, at www.hostragon.com and including all databases, software, domain names, infrastructure, products and services that Hostragon markets for use by individual users to shop for Hostragon's products and services. Hostragon Website includes all future versions and replacements of, and successors to, the site.
1.1. Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.5. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.6. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.7. A reference to writing or written includes faxes and e-mail.
1.8. References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.9. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Hostragon OBLIGATIONS
2.1. Hostragon may provide the affiliate with:
(a) one or more cookies (or similar internet tracking software packages) to enable it to create Tracked Hyperlinks; and/or
(b) a Reference Code for it to provide to potential purchasers of Hostragon’ products and services.
2.2. Hostragon shall be responsible for developing, operating and maintaining the Hostragon Website.
2.4. Within 14 days after the end of each calendar month, Hostragon will provide the affiliate with a report in Hostragon's standard form setting out for the month concerned the total number of:
(a) occasions when a Hostragon User has clicked directly through to Hostragon Website from the affiliate Web Link Pages;
(b) occasions when a Hostragon User has engaged in a transaction
2.5. Hostragon may at any time or times without notice to affiliate:
(a) change the name of Hostragon Website;
(b) change Hostragon Trade Mark Guidelines; and
(c) target Hostragon Website at potential customers in such additional country or countries as it chooses.
2.6. This agreement is non-exclusive and does not prevent or restrict Hostragon from entering into similar or different agreements with third parties. Hostragon makes no representation that the terms of this agreement are similar to or the same as the terms of any other agreement it has entered or may enter into with any third party.
3. Affiliation's OBLIGATIONS
3.1. The affiliate shall be responsible for developing, operating and maintaining the affiliate Website and for all materials that appear on it. In particular, but without limiting the generality of the foregoing, the affiliate shall be responsible for:
(a) the proper functioning and maintenance of all Trackable Hyperlinks; and
(b) compliance with Hostragon Trade Mark Guidelines.
3.2. The affiliate shall submit to Hostragon for prior approval any proposed use of any Hostragon trade mark, domain name, logo, and other elements of branding that the affiliate may wish to make. Hostragon shall review the proposed use within a reasonable time (being ordinarily not longer than seven days) and shall not unreasonably refuse or delay approval.
3.3. The affiliate shall provide Hostragon with:
(a) all co-operation in relation to this agreement; and
(b) all access to such information as may be required by Hostragon, as is necessary for the proper performance of Hostragon's obligations under this agreement.
3.4. The affiliate acknowledges and agrees that it has no authority to legally bind Hostragon in relation to Hostragon Users, other users or anyone else and that it has not been appointed and is not the agent of Hostragon for any purpose. The affiliate agrees that it shall not make to anyone any representation or commitment about Hostragon, Hostragon Website or any of the products or services available to be bought on Hostragon Website.
3.5. The affiliate shall comply with all applicable laws and regulations with respect to its activities under this agreement and to its business.
4. CHARGES AND PAYMENT
4.1. Hostragon will pay the affiliate at the Commission Rate in respect of the total value of each Transaction.
4.2. Commission is payable on a receipts, not accruals, basis so if Hostragon receives no revenue on any Transaction, no commission is payable.
4.3. affiliate acknowledges and agrees that no payments are due to it under this agreement otherwise than as expressly set out in this agreement.
4.4. All sums payable under this agreement are inclusive of any VAT (or similar analogous tax) which the affiliate may be due to pay to its local tax collection authority. Such VAT payments on sums received under the terms of this Agreement shall be for the affiliate’s account and the affiliate undertakes that it shall declare and pay all such sums in accordance with applicable local law and shall have sole responsibility for any failure by it to do so. Accordingly, the affiliate undertakes that it shall not purport to invoice or seek any form of VAT payment or contribution from Hostragon in relation to this Agreement.
4.5. The report that Hostragon sends to the affiliate under clause 2.4 shall include a statement of the amounts due from Hostragon to the affiliate for Transactions in the month to which the report relates. Except in the case of manifest error, Hostragon shall pay the affiliate the amount thereby shown to be due within 30 days after the date of the report.
5. PROPRIETARY RIGHTS
The affiliate acknowledges and agrees that Hostragon and its licensors own all intellectual property rights in Hostragon Website and all Hostragon's products and services. Except as expressly stated herein, this agreement does not grant the affiliate any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licenses belonging to Hostragon. All such rights are reserved to Hostragon.
6.1. Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 15.2.
6.2. Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 6; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
6.3. No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
6.4. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
6.5. This clause 6 shall survive termination of this agreement, however arising.
The affiliate shall indemnify Hostragon against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Hostragon arising out of or in connection with the affiliate's website or the marketing or sale of products or services on that website.
8. LIMITATION OF LIABILITY
8.1. This clause 8 sets out the entire financial liability of Hostragon (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the affiliate:
(a) arising under or in connection with this agreement; and
(b) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
8.2. Except as expressly and specifically provided in this agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
8.3. Nothing in this agreement excludes the liability of Hostragon:
(a) for death or personal injury caused by Hostragon's negligence; or
(b) for fraud or fraudulent misrepresentation.
8.4. Subject to clause 8.3:
(a) Hostragon shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this agreement; and
(b) Hostragon's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the amount paid under this agreement by Hostragon to the affiliate during the 12 months preceding the date on which the claim arose.
9. DURATION AND TERMINATION
9.1. This agreement shall commence on the Effective Date and shall continue thereafter unless otherwise terminated as provided in this clause 9.
9.2. Hostragon may terminate this Agreement on notice at any time if it discontinues or withdraws, in whole or in part, its affiliate marketing program. Hostragon will endeavor to give affiliate as much notice of the same as reasonably practicable, but any such termination will be without liability to affiliate.
9.3. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
(a) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such a breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
(f) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(g) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(i) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(k) there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010; or
(l) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.3(b) to clause 9.3(k) (inclusive).
10. CONSEQUENCES OF TERMINATION
On termination of this agreement for any reason:
(a) all licenses and benefits granted under this agreement shall immediately terminate (including any right for the affiliate to use any branding or trademarks of Hostragon);
(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party; and
(c) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
11. FORCE MAJEURE
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for six months, the party not affected may terminate this agreement by giving 30 days' written notice to the affected party.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13. RIGHTS AND REMEDIES
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
14.1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
14.2. If one party gives notice to the other of the possibility that any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
15. ENTIRE AGREEMENT
15.1. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
15.3. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this agreement.
15.4. Nothing in this clause shall limit or exclude any liability for fraud.
16. ASSIGNMENT AND OTHER DEALINGS
16.1. The affiliate shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this agreement without the prior written consent of Hostragon.
16.2. Hostragon may at any time assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this agreement.
17. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
19. THIRD PARTY RIGHTS
A person who is not a party to this agreement shall not have any rights to enforce any term of this agreement.
20.1. Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be sent by e-mail to the regular general communications e-mail address of the other party, or such e-mail address as the parties may agree between them (including by way of a course of dealing).
21. GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the law of the State of Georgia.
Each party irrevocably agrees that the courts in the State of Georgia shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).