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BY CLICKING THE CREATE PARTNER ACCOUNT BUTTON BELOW, MARKETING AFFILIATE REPRESENTS THAT AN AUTHORIZED REPRESENTATIVE OF MARKETING AFFILIATE HAS READ THIS AGREEMENT AND AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. This Remote Data Backups Marketing Affiliate Agreement (this "Agreement") is a legal agreement between Remote Data Backups, Inc., a Colorado corporation, and its third-party licensors and suppliers ("Remote Data Backups") and the company identified on the Marketing Affiliate Application and to which Remote Data Backups has granted the right market the Services (defined below) in accordance with the terms and conditions of this Agreement (the "Marketing Affiliate"). ACCEPTANCE OF AGREEMENT: BY CLICKING ON THE "ACCEPT" BUTTON BELOW, MARKETING AFFILIATE AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND MARKETING AFFILIATE ACKNOWLEDGES AND AGREES THAT IF REMOTE DATA BACKUPS ELECTS TO ALLOW MARKETING AFFILIATE TO JOIN THE MARKETING AFFILIATE PROGRAM, MARKETING AFFILIATE WILL BE BOUND BY THIS AGREEMENT.MARKETING AFFILIATE ACKNOWLEDGES AND AGREES THAT REMOTE DATA BACKUPS IS UNDER NO OBLIGATION TO ALLOW MARKETING AFFILIATE TO JOIN THE MARKETING AFFILIATE PROGRAM, AND MAY REJECT, AT ITS SOLE DISCRETION, MARKET AFFILIATE’S APPLICATION AND/OR ANY OF MARKETING AFFILIATES CLAIMS THAT MARKETING AFFILIATE’S EFFORTS HAVE RESULTED IN AFFILIATE CLIENTS (defined below). PLEASE READ THIS AGREEMENT CAREFULLY. IF MARKETING AFFILIATE DOES NOT ACCEPT THE FOLLOWING TERMS, CLICK ON THE "CANCEL" BUTTON, IN WHICH CASE MARKETING AFFILIATE WILL NOT BE PERMITTED USE THE MARKS OR THE DOCUMENTATION, OR TO MARKET THE SERVICES. DEFINITIONS: Whenever used in this Agreement, the following terms shall have the meaning ascribed to them below.Other capitalized terms used in this Agreement are defined in the context in which they are used and shall have the meanings ascribed therein. The terms defined below include the plural as well as the singular: "Associate" means, as to any party, any other person that, now or in the future, directly or indirectly, controls, is controlled by, or is under common control with, such person, whether through ownership of voting securities or otherwise. For this purpose, and without limiting the foregoing, any person that owns more than fifty percent (50%) of the outstanding voting securities of any other person shall be deemed to control such other person "Affiliate Client" means any entity or person, as reasonably determined by Remote Data Backups, (a) (i) to whom Marketing Affiliate has marketed the Services or (ii) who links to an RDB Website (as defined below) from a Marketing Affiliate Site (as defined below); and (b) who purchases Services from Remote Data Backups. Affiliate Client shall exclude any entity or person who: (v) is an existing client of Remote Data Backups (an "Existing Client"); or (w) was an Existing Client within thirty (30) days of its most recent purchase of Services from Remote Data Backups; or (x) presently, or at any time in the future, is directly or indirectly through one or more intermediaries controls or which is controlled by or under common control with an Existing Client.For the purpose of this Agreement, "control" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an individual, corporation or other legal entity, whether through the ownership of voting securities, by contract or otherwise; or (y) is an employee, officer, or director, or a branch, division or group, or part thereof, of Marketing Affiliate. "Contract Year" means a twelve (12)-month period beginning on the effective date of this Agreement, and on each subsequent anniversary thereof during the Term of this Agreement. "Documentation" means Remote Data Backups’ current promotional materials for the Services, including written, printed, electronic or other format materials published or otherwise made available by Remote Data Backups that describe or otherwise relate to the functionality and/or performance of the Services. "Marketing Affiliate Site" means an Internet website owned and/or operated by Marketing Affiliate and listed on the Marketing Affiliate Program Application; "Marks" means REMOTE DATA BACKUPSSM and REMOTE DATA BACKUPS + DesignSM, and any other trademarks, service marks, and logos owned by Remote Data Backups and used in connection with the Services. "Net Sales" shall mean, for the applicable period, the gross amount invoiced by Remote Data Backups for the sale or other disposition of the Services(s), less reasonable customary adjustments from gross sales to net sales as determined in accordance with GAAP, and other adjustments associated with the Services during that period including, without limitation: (a) quantity, trade, and/or cash discounts, allowances, chargebacks, rebates and price adjustments or reductions allowed or given; (b) actual credits, rebates, or refunds for Services(s) that are cancelled by clients; and (c) sales and other excise taxes and duties directly related to the sale, to the extent included in the gross invoiced amount. "RDB Website" means Remote Data Backups’ <www.remotedatabackups.com> or other Internet website designated by Remote Data Backups’ from time to time. "Services" means the remote data backup services and other services offered by Remote Data Backups from time to time; provided, however, that the Services shall exclude the extended memory data backup services described on <www.offsitedatabacks.com> and the online data backup services for MAC® computers described on <www.macbackups.com>. TERM: The initial term of this Agreement will commence on the effective date of this Agreement and will continue for a period of one (1) year (the "Initial Term"). Thereafter, THIS AGREEMENT WILL AUTOMATICALLY RENEW FOR SUCCESSIVE ONE (1)-YEAR PERIODS (each a "Renewal Term") UNLESS TERMINATED EARLIER IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR UNLESS EITHER PARTY PROVIDES WRITTEN NOTICE OF ITS INTENTION NOT TO RENEW THE AGREEMENT AT LEAST THIRTY (30) DAYS PRIOR TO THE END OF THE THEN CURRENT TERM.The Initial Term together with all Renewal Terms shall be referred to collectively as the "Term". LICENSE: Remote Data Backups hereby grants to Marketing Affiliate a limited, terminable, non-exclusive, royalty-free, non-transferable, license, solely for the purpose of marketing, and only as is necessary and reasonably required to market the Services to third parties for the benefit of Remote Data Backups, to:(a) insert a hyperlink to an RDB Website on an Marketing Affiliate Site in accordance with the terms and conditions of this Agreement; (b) use, display, copy, reference, show, demonstrate or distribute the Documentation, including on the Marking Affiliate Site, in accordance with the terms and conditions of this Agreement; and (c) use, display, copy, reference, show, or demonstrate the Marks, including on the Marking Affiliate Site, in accordance with the terms and conditions of this Agreement. Marketing Affiliate shall use its best efforts to market the Services as diligently as necessary to maximize sales of the Services. RESTRICTIONS: Except for the limited rights granted to Marketing Affiliate hereunder, Marketing Affiliate acknowledges and agrees that: (a) Remote Data Backups is the sole and exclusive owner of all rights, title and interest in, to and under the Documentation, the RDB Websites and the Marks, and all variations thereof and all the intellectual property rights related to, associated with and arising therefrom including, without limitation, any translations thereof, domain names, business names, trade names, trade dress, copyrights and the goodwill associated with Marks; and (b) any and all use of the Marks by Marketing Affiliate shall inure to the benefit of Remote Data Backups. Marketing Affiliate recognizes the value and the goodwill associated with the Marks and covenants and agrees that, during the term of this Agreement, and at all times thereafter, Marketing Affiliate shall not: (w) take any action or assist any third party in any action that may impair Remote Data Backups’ ownership rights, title or interest in, to and under the Marks or any of Remote Data Backups’ other intellectual property rights; (x) take any action or assist any third party in any action that may diminish, dilute or tarnish the value and/or quality of the Marks including, without limitation, any act that may infringe and/or lead to the infringement of such Marks; (y) attempt to create, register, license or in any manner use any trademark, service mark, trade name, business name, trade dress, domain name, copyright or logo similar to or that may cause confusion with the Marks; or (z) in any way contest, deny or challenge Remote Data Backups’ ownership in or validity of its Marks or any other intellectual property or assist a third party in doing so in any way. Marketing Affiliate shall not rent, lease, sub-license, lend or transfer Services or use Services to perform services as a service bureau for any parties. Marketing Affiliate shall ensure that hyperlinks to any RDB Site are direct, and that there shall be no pop-up, advertising pages, or other similar features connected with, or triggered by, any hyperlink to any RDB Site on any Marketing Affiliate Site. Marketing Affiliate shall use the Marks pursuant to Remote Data Backups’ Trademark Use Guidelines attached hereto as Attachment A. Marketing Affiliate acknowledges and agrees that Remote Data Backups reserves the right to approve the use of the Marks and the placement and appearance of any hyperlink to an RDB Site on any Marketing Affiliate Site. Marketing Affiliate shall ensure that each Marketing
Affiliate Site complies with the applicable laws in the Marketing Affiliate agrees that, during the term of this Agreement and for one (1) year thereafter it shall not: (a) Sell, promote or market the products and services of Remote Data Backups’ vendors or suppliers that are included in Services; (b) Market, promote, advertise, detail, manufacture, license, obtain, distribute and/or sell any service that could reasonably be expected to compete with any Services, and shall not assist any third party in so doing; (c) Make any statements to any Affiliate Clients, other potential, current or past clients of Remote Data Backups, or to or any other third parties which statements in any way disparage Remote Data Backups or adversely affect, disrupt, or interfere with its reputation, goodwill, business relationships, business plans, litigation, claims, business arrangements or agreements; (d) Act in any way that could reasonably be expected to result in economic harm to Remote Data Backups; or (e) Interfere with or disrupt the business relationship between Remote Data Backups, its employees, directors, officers, vendors or agents, including but not limited to the solicitation or encouragement of any of them to alter or terminate their business relationship with Remote Data Backups for any reason. MARKETING AFFILIATE OBLIGATIONS: In addition to the other obligations of Marketing Affiliate set forth elsewhere in this Agreement, Marketing Affiliate covenants and agrees to: (a) Represent the effectiveness and quality of the Services accurately and to refrain from making any inaccurate representations, warranties or guarantees with respect to the specifications, standards or effectiveness of the Services; (b) Avoid deceptive, misleading or unethical practices that are or might be detrimental to Remote Data Backups, the Services or the public including, without limitation, any disparagement of Remote Data Backups or the Services; (c) Provide to Remote Data Backups copies of all relevant correspondence concerning the Services with any Affiliate Clients, governmental or regulatory agencies or authorities in any jurisdiction; and (d) Inform Remote Data Backups promptly of any communications, complaints, claims, or reports on potential adverse events if and when received by Marketing Affiliate. Acknowledging that the damages sustainable by Remote Data Backups as a consequence of any breach of Marketing Affiliate's obligations set forth in this section may be difficult to measure in monetary terms, Marketing Affiliate hereby agrees that Remote Data Backups shall be entitled to have the continuation of any such breach permanently enjoined. OPERATIONS AND EXPENSES: Marketing Affiliate shall be solely and exclusively responsible for:(a) the management and control of its business and operations; (b) all hiring, training and employment of any employees, agents, contractors and any other personnel ("Personnel") as may be necessary for Marketing Affiliate to fulfill its obligations under this Agreement; and (c) all costs and expenses associated with the marketing of the Services including, without limitation, any and all Personnel expenses, costs, office space, facilities, advertising, promotion and/or other materials and items that Marketing Affiliate utilizes in connection with the Agreement. COMMISSION FEES: Subject to the terms and conditions of this Agreement including, without limitation, Marketing Affiliate fulfilling its obligations pursuant to this Agreement, Remote Data Backups shall pay Marketing Affiliate the commissions set forth in the Affiliate Control Panel. EXTENDED COMMISSION: Subject to the terms and conditions of this Agreement including, without limitation, Marketing Affiliate fulfilling its obligations pursuant to this Agreement if Marketing Affiliate causes a minimum of ten (10) new Affiliate Clients to purchase the Services during a Contract Year, Remote Data Backups shall pay to Marketing Affiliate, during the following Contract Year (the "Next Term"), an additional commission of ten percent (10%) of Net Sales for each such Affiliate Client who purchases Services for a subsequent year (the "Extended Commission"); provided, however, if Marketing Affiliate fails to sign up ten (10) new Marketing Affiliate Clients during the Next Term, then the obligation to pay any Extended Commission(s) shall terminated with respect to all the Affiliate Clients. PAYMENTS: Marketing Affiliate shall keep records regarding its use of the Marks and Documentation, its marketing of the Services, and the Affiliate Clients, including without limitation, audit logs evidencing the use of the hypertext links to any RDB Site by Marketing Affiliate. By the fifth (5th) day of each month, Marketing Affiliate shall provide to Remote Data Backups a report listing all Affiliate Clients of which Marketing Affiliate is aware who purchased Services in the previous month (each, a "Report"). Remote Data Backups may compare Reports to the information contained in its own records on Affiliate Clients for the purposes of calculated Commissions and/or Extended Commissions to be paid to Marketing Affiliate. Remote Data Backups shall pay Marketing Affiliate Commissions within the time periods set forth on Attachment B.Remote Data Backups shall pay Marketing Affiliate Extended Commissions within forty-five (45) days after the close of the applicable Initial Term or Renewal Term. All payments shall be made in U.S. Dollars. Marketing Affiliate shall pay any and all taxes related to, associated with and/or arising from any amounts paid to Marketing Affiliate by Remote Data Backups; provided, however, any taxes assessed or imposed against, or required to be withheld from any amounts due Marketing Affiliate, shall be deducted from amounts payable hereunder. To the extent required to comply with any law as determined by Remote Data Backups, upon Remote Data Backups' request, Marketing Affiliate shall send promptly to Remote Data Backups any tax receipts evidencing payment of such taxes. Remote Data Backups shall have the right to set-off any undisputed amounts owed to it against any undisputed amounts that it owes Marketing Affiliate. PRICING: Remote Data Backups shall have the sole right to determine the prices it charges for the Services. AUDIT AND INSPECTION RIGHTS Remote Data Backups shall have the right, at its sole cost and expense to examine the relevant records of Marketing Affiliate during regular business hours during the term of this Agreement and for three (3) years thereafter to verify the information provided in the Reports and Marketing Affiliate's compliance with this Agreement, including without limitation, whether Marketing Affiliate’s use of the Marks and Documentation comply with the terms and conditions of this Agreement including, without limitation, the Trademark Use Guidelines (collectively "Records"). CONFIDENTIAL "Confidential Information" means any and all information of any type whatsoever of, relating to or about Remote Data Backups, in whatever form or media, whether or not marked as "confidential" and/or "proprietary," including, without limitation, business methodologies, practices, methods, techniques, marketing strategy, financial information and reports, pricing, trade secrets, client data (including any client lists), future development, business plans or personnel matters relating to Remote Data Backups and/or its Associates, products, sales, suppliers, clients, employees, or investors;commissions and fees; and other information which could reasonably be expected to be valuable to Remote Data Backups and/or its Associates and/or a competitor of Remote Data Backups and/or its Associate. Marketing Affiliate acknowledges that in the course of carrying out, performing and providing services under this Agreement, the Marketing Affiliate will have access to and will be entrusted with Confidential Information.Marketing Affiliate shall hold all Confidential Information acquired by or disclosed to the Marketing Affiliate in the strictest confidence; shall not use or disclose such Confidential Information except as necessary to carry out its obligations under this Agreement; and shall not such Confidential Information for its own benefit or for the benefit of any third party individual, firm, company, association, or any other entity during the Term and after the termination of the this Agreement. Upon the termination of this Agreement for any reason, Marketing Affiliate promptly shall cease use of all Confidential Information; shall return to Remote Data Backups or, at Remote Data Backups' instruction, destroy all such Confidential Information, and any copies or reproductions thereof; and shall certify such action in writing within thirty (30) days of such termination or expiration.Marketing Affiliate will also immediately cease and desist all contact and business relations with all of Remote Data Backups vendors and suppliers. Acknowledging that the damages sustainable by Remote Data Backups as a consequence of any breach of Marketing Affiliate's confidentiality obligations may be difficult to measure in monetary terms, Marketing Affiliate hereby agrees that Remote Data Backups shall be entitled to have the continuation of any such breach permanently enjoined. Marketing Affiliate’s obligations of confidentiality set forth above shall survive the termination of this Agreement, for any reason. INDEMNITY: Marketing Affiliate agrees to defend, indemnify and hold harmless Remote Data Backups and its Associates, and their respective officers, directors, shareholders, members, employees, representatives, employees, agents, attorneys, successors and assigns (collectively "RDB Indemnified Parties") from and against all liabilities, losses, claims, demands, assessments, fines, damages, costs and expenses of whatever form or nature (including, without limitation, attorneys' fees, other costs of legal defense, settlement payments and any and all damages awarded or resulting therefrom), whether direct or indirect, arising out of claims, actions or proceedings brought by any third party (collectively "Claims"), that Remote Data Backups Indemnified Parties or any of them may sustain or incur as a result of any acts or omissions of Marketing Affiliate or any of its Personnel, directors and/or officers, such acts or omissions including, without limitation: (a) a breach by Marketing Affiliate of any obligation, representation, warranty or covenant of Marketing Affiliate under this Agreement; (b) any tortious conduct; (c) any representations, warranties or statements not specifically authorized by Remote Data Backups herein or otherwise in writing; or (d) violation of any laws in any jurisdiction.Such duty to indemnify, defend, and hold harmless shall include the presentation of all counterclaims, cross-claims or third party claims as may be reasonably requested by Remote Data Backups to protect its interests, and shall extend to damage awards, costs of compliance with injunctions, legal fees, expert witness fees, and associated expenses, as well as liabilities arising out of the conduct of litigation, such as sanctions or fines imposed by a court for failure to comply with its orders or with the court’s rules governing the conduct of litigation. During the time in which a Claim is pending, Remote Data Backup shall have the right to withhold any payments due to the Marketing Affiliate until such time as the Claim has been settled or a final, non-appealable order of a court of competent jurisdiction has been entered with respect to such Claim, in which case the Remote Data Backup shall pay Marketing Affiliate any withheld amounts less any amounts that Marketing Affiliate may be required to pay, on behalf of the Remote Data Backup, with respect to any such settlement or judgment. Remote Data Backups agrees to defend, indemnify and hold harmless Marketing Affiliate, its officers, directors, employees, successors and assigns ("Marketing Affiliate Indemnified Parties") harmless from and against all Claims resulting from:(a) a breach by Remote Data Backups of any obligation, representation, warranty or covenant of Remote Data Backups under this Agreement; (b) any tortious conduct by Remote Data Backups; or (c) Remote Data Backups’ violation of any laws in any jurisdiction except to the extent due to Marketing Affiliate's failure to comply with, or advise Remote Data Backups with respect to, such laws. Such duty to indemnify, defend, and hold harmless shall include the presentation of all counterclaims, cross-claims or third party claims resulting from the foregoing, and shall extend to damage awards, costs of compliance with injunctions, legal fees, expert witness fees, and associated expenses, as well as expenses and costs directly related to the litigation, such as sanctions or fines imposed by a court for failure to comply with its orders or with the court’s rules governing the conduct of litigation.Remote Data Backups shall have no responsibility or liability under this section for any Claims for or from which Marketing Affiliate is obligated to defend, indemnify and hold the Remote Data Backups Indemnified Parties harmless under this Agreement. Promptly after becoming aware of same, the party seeking indemnification (the "Indemnified Party") shall notify the other party (the "Indemnifying Party") of any Claims covered under the indemnification obligations set forth above, as applicable, for which the Indemnified Party seeks indemnification; provided, however, that any delay in giving such notice shall not relieve the Indemnifying Party hereunder except to the extent such delay materially prejudices the Indemnifying Party's ability to defend against such Claim or materially increases the amount of damages awarded or paid in settlement of such Claim.Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of such Claim and may be represented, at the Indemnified Party's expense, by counsel of its choice, provided that, where the Indemnifying Party has assumed defense of a Claim, the Indemnifying Party shall have sole control over such defense. The Indemnifying Party shall not be responsible for defending any claims other than those described in this section, as applicable, even if brought in the same suit. REPRESENTATIONS, WARRANTIES AND COVENANTS:
Each party represents and warrants to the other that: (a) it is a business entity, it is validly existing and in good standing under the laws of the state and/or commonwealth, province of its organization; (b) the execution of this Agreement and full and timely performance of the covenants, duties and obligations described herein have been duly authorized by all necessary corporate or organizational action in accordance with all applicable laws; (c) it has the full power and authority to execute and deliver this Agreement and perform its covenants, duties and obligations described in this Agreement; (d) the acceptance, delivery and performance of this Agreement by Marketing Affiliate does not and shall not contravene its organizational documents or constitute a breach or default under any agreement to which Marketing Affiliate is a party; and (e) this Agreement is a valid, legal and binding obligation upon such party, enforceable in accordance with its terms, except as enforceability may be limited by applicable insolvency and other laws affecting creditors’ rights generally or by the availability of equitable remedies. In addition to its other obligations pursuant to this Agreement, Marketing Affiliate represents, warrants and covenants to Remote Data Backups as follows: Marketing Affiliate is unaware of any fact or circumstance that would prevent it from marketing the Services pursuant to the terms and conditions of this Agreement; Marketing Affiliate is in compliance with all applicable laws, including, without limitation, the laws administered by U.S. Department of the Treasury’s Office of Foreign Assets Control ("OFAC"); Marketing Affiliate is not itself, and it is not owned or controlled by, or acting as an agent for, any person with whom a U.S. citizen, national, or company organized under the laws of or operating in any state or territory of the U.S. is prohibited from engaging in any transactions by U.S. laws, including without limitation, under the regulations issued by OFAC. Marketing Affiliate further represents that neither Marketing Affiliate nor any of its Personnel is a Specially Designated National or Terrorist, as designated by OFAC from time to time; and
Neither Marketing Affiliate nor any of its Personnel shall bribe any U.S. or foreign governmental or public officials, or make any other payments or contributions in kind in violation of the Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1, et seq. DISCLAIMER OF WARRANTIES: THE SERVICES, SOFTWARE CONTAINED THEREIN, AND THE DOCUMENTATION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE, WHERE IS" BASIS.REMOTE DATA BACKUPS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THE SERVICES, SOFTWARE CONTAINED THEREIN, OR THE DOCUMENTATION OR ANY INFORMATION CONTAINED THEREIN. REMOTE DATA BACKUPS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. REMOTE DATA BACKUPS DOES NOT REPRESENT OR WARRANT THAT SERVICES OR THE FUNCTIONS CONTAINED IN THE SOFTWARE AVAILABLE THROUGH THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS INCLUDING VIRUSES. REMOTE DATA BACKUPS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION IN THE DOCUMENTATION IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. REMOTE DATA BACKUPS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN SERVICES, DOCUMENTATION, AND ANY RDB WEBSITE AT ANY TIME, WITHOUT PRIOR NOTICE. LIMITATION OF LIABILITY: IN NO EVENT WILL REMOTE DATA BACKUPS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGESARISING OUT OF USE OF OR INABILITY TO USE THE SERVICES, OR ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INTENDED CONDUCT OR OTHERWISE, EVEN IF REMOTE DATA BACKUPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION: EXPENSES; LOST PROFITS, SAVINGS, INCOME, GOODWILL, REVENUE OR PROSPECTIVE COMPENSATION; OR EXPENDITURES, INVESTMENTS, LEASES OR ANY TYPE OF COMMITMENT MADE IN CONNECTION WITH THE BUSINESS OF MARKETING AFFILIATE OR IN RELIANCE ON THE EXISTENCE OF THIS AGREEMENT IN ANY ACTION. In addition, UNDER NO CIRCUMSTANCES WILL REMOTE DATA BACKUPS’ AGGREGATE MAXIMUM OUT-OF-POCKET LIABILITY ARISING UNDER THIS AGREEMENT EXCEED AN AGGREGATE AMOUNT EQUAL TO THE FEES PAID BY REMOTED DATA BACKUPS TO MARKETING AFFILIATE UNDER THIS AGREEMENT IN QUARTER IN WHICH THE CLAIM FIRST ACCRUED. The foregoing limitations of liability are independent of one another.The limitations on liability set forth above shall not apply to damages or losses arising under or relating to the willful misconduct or gross negligence of Remote Data Backups. TERMINATION: This Agreement may be terminated without cause by either party by giving thirty (30) calendar days prior written notice to the other party. Either party may terminate this Agreement for any material breach of the Agreement by the other that is not cured within thirty (30) days of written notice that specifies the breach or upon written notice. Notwithstanding the foregoing, the parties expressly agree that Remote Data Backups shall have cause for the immediate termination of this Agreement upon the occurrence of any of the following: (a) In the event of breach by Marketing Affiliate of the provisions set forth in the sections above entitled "RESTRICTIONS," "MARKETING AFFILIATE OBLIGATIONS" and/or "CONFIDENTIALITY"; (b) In the event Marketing Affiliate files a petition of any type as to its bankruptcy, is declared bankrupt, becomes insolvent, makes an assignment for the benefit of creditors, goes into liquidation or receivership; (c) If there should occur any material change in the management, ownership, control, marketing capability, or financial condition of Marketing Affiliate that Remote Data Backups reasonably determines substantially and adversely affects the marketing of the Services; (d) If Marketing Affiliate knowingly makes any false or untrue statements or representations to Remote Data Backups in the Marketing Affiliate Program Application, or in the performance of its obligations hereunder Remote Data Backups shall have the right, in its sole discretion, upon providing Marketing Affiliate ten (10) calendar days prior notice on any RDB Website or otherwise in writing, to: (a) discontinue the sale or provision of any or all of the Services; (b) discontinue the Marketing Affiliate Program; or (c) divest, sell, liquidate, license or otherwise transfer or terminate any part of its business including, without limitation, any of the Services. EFFECT OF TERMINATION: Upon the termination of this Agreement: (a) Marketing Affiliate shall cease all marketing and other activities with respect to the Services and immediately cease all use of the Marks, Documentation and Confidential Information previously furnished by Remote Data Backups or otherwise in Marketing Affiliate’s possession; and (b) All of Marketing Affiliate's rights and privileges with respect to Remote Data Backups’ intellectual property, including without limitation, the Marks and Documentation, shall immediately cease. NO LIABILITY FOR TERMINATION: Remote Data Backups shall pay to Marketing Affiliate undisputed and unpaid Commissions and Extended Commissions. The Marketing Affiliate acknowledges and agrees that Remote Data Backups is not responsible for the Marketing Affiliate’s dependence on revenues hereunder. TERMINATION OF COMMISSION FEES: Subject to the right to withhold under the "INDEMNITY" section above, Remote Data Backups shall pay to Marketing Affiliate, within sixty (60) days of termination, any undisputed and unpaid Commissions and Extended Commissions earned by Marketing Affiliate prior to the effective date of termination of this Agreement.No Commissions or Extended Commissions will be paid for Services purchased by Affiliate Clients after the effective date of termination of this Agreement. SURVIVAL: Expiration or termination of this Agreement will not relieve either party from its obligations arising hereunder prior to such expiration or termination. Rights and obligations by which their nature should survive will remain in effect after termination or expiration of this Agreement. GOVERNING LAW; JURISDICTION AND VENUE: Any action related to this Agreement will be governed
by the substantive laws of the State of , without reference to the choice of law rules
thereof. THE PARTIES AGREE THAT ANY ACTION WILL BE BROUGHT IN THE FEDERAL OR
STATE COURTS LOCATED IN RELATIONSHIP OF PARTIES: This Agreement does not constitute either party as the agent of the other, or create a partnership, joint venture or similar relationship between the parties, and neither party will have the power to obligate the other in any manner whatsoever. The Marketing Affiliate acknowledges and agrees that its relationship with Remote Data Backups is that of an independent, referral source and Marketing Affiliate shall not act in a manner that expresses or implies a relationship other that that of an independent referral source. NOTICES: Except as otherwise expressly provided herein, all notices required under the terms and provisions hereof shall be in writing and be transmitted by facsimile and e-mail to the addresses below at the facsimile number and e-mail addresses set forth below and confirmed by express courier delivery. All notices are effective when faxed. If to Remote Data Backups Remote Data Backups If to Marketing Affiliate: At the address, facsimile number and e-mail addresses indicted in the Marketing Affiliate Program Application submitted by Marketing Affiliate. AMENDMENT: Remote Data Backups reserves the right to make changes, modifications, amendments, and/or updates to this Agreement (including Attachments A and B hereto) at any time and for any reason. Remote Data Backups will post a notice on the RDB Site to notify Marketing Affiliate if there has been a material change to this Agreement.Please visit [INSERT URL] to view the current version of this Agreement.Marketing Affiliate acknowledges and agrees that Marketing Affiliate shall be responsible for reviewing this Agreement from time to time to review for changes, and that changes to this Agreement shall be effective when posted. MISCELLANEOUS: Neither party shall be responsible for any failure or delay in the performance of any obligation imposed upon it hereunder, nor shall such failure or delay be deemed to be a breach of this Agreement, if such failure or delay is due to fire, storms, earthquakes, labor strikes, war or civil disasters or other similar circumstances which are beyond its control and are not preventable by reasonable diligence on its part. This Agreement, including the Attachments or Exhibits hereto, constitute the entire and only agreement between the parties with respect to the subject matter hereof and supersede all prior discussions, agreements, and understandings of every kind and nature between the parties.Except as otherwise provided herein, no modification or amendment to this Agreement shall be binding upon the parties unless it is in writing and executed by each of the parties hereto. In the event that any of the terms of this Agreement are in conflict with any rule of law or statutory provision or are otherwise unenforceable under the laws or regulations of any government or subdivision thereof, such terms shall be deemed stricken from this Agreement, but such invalidity or unenforceability shall not invalidate any of the other terms of this Agreement and this Agreement shall continue in force, unless the invalidity or unenforceability of any such provisions hereof does substantial violence to, or where the invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from the remainder of this Agreement. This Agreement shall be binding on and inure to the benefit of the successors and permitted assigns of Remote Data Backups and Marketing Affiliate.This Agreement will be assigned, in whole or in part, by Remote Data Backups and/or its Affiliates to any acquirer of all or substantially all of Remote Data Backups’ and/or its Affiliates business, which acquisition may be in any form including, without limitation, license, a merger, sale of stock or sale of assets. Marketing Affiliate shall not sell, assign, delegate, or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Remote Data Backups, which consent Remote Data Backups shall have the right to withhold in its sole discretion. |