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AFFILIATE TERMS AND CONDITIONS
By signing up as a Barak Hosting affiliate, you agree to the following Terms of Service.
**Filling in the secure form and submitting the application to join the Barak Hosting Inc. affiliate program is an acknowledgement of reading, understanding, and acceptance of the Terms and Conditions listed below:
- This agreement is by and between Barak Hosting Inc. and/or their assigns and all subscribers. Unless the context requires otherwise, Barak Hosting Inc.. and/or their assigns shall be referred to as "us, we, or our" and you shall be referred to as "you, your or subscriber."
- You understand that Barak Hosting Inc.. and/or their assigns does not guarantee or predict any type of profit or response from said services. Subscriber agrees to hold Barak Hosting Inc. harmless from and against any and all losses, claims, expenses, suits, damages, costs, demands or liabilities, joint or several, of whatever kind or nature which Barak Hosting Inc. and/or their assigns may become subject arising out of or relating in any way to the use of the services provided under this agreement, including, without limitation, in each case attorneys' fees, costs and expenses actually incurred in defending against or enforcing any such losses, claims, expenses, suits, damages or liabilities.
- A. Services to be Provided. We agree to pay you certain commissions as described on our website for referral sales made by customers.
- B. Termination. We may terminate your account:
- (a) if you violate our Terms Of Service Policy;
- (b) promote Barak Hosting Inc. in a manner that is unethical or inappropriate; or
- (c) for any reason, in our sole discretion.
- C. No Warranties. WE MAKE NO WARRANTIES TO YOU OF ANY KIND, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICE BARAK HOSTING, INC. , ITS SUBCONTRACTORS AND AFFILIATES PROVIDE YOU. WE EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THIS SERVICE FOR A PARTICULAR PURPOSE. We shall not be liable for any damages suffered by you, whether indirect, special, incidental, exemplary, or consequential, including, by not limited to, loss of data or service interruptions, regardless of cause or fault. We are not responsible for your lost profits or for your loss of data or information. If notwithstanding this clause we are held liable to you.
- D. TERMS. You agree: (1) to use our system in a manner that is ethical and in conformity with community standards; (2) to respect the privacy of other users (you shall not intentionally seek data or passwords belonging to other users, nor will you modify files or represent yourself as another user unless explicitly authorized to do so by that user); (3) to respect the legal protection provided by copyright law, trade secret law, or other laws protecting intellectual property. 4) to accept commercial emails from us.
If we learn of a violation or likely violation of our TERMS OF SERVICE, we will attempt to notify you. If you do not take immediate remedial action which is satisfactory to us, or in the event of a serious violation of the TERMS OF SERVICE, we reserve the right to terminate your account immediately. Every effort will be made to inform you prior to account termination, and to re-establish your account upon receiving such representations from you as we deem appropriate in the circumstances.
YOUR SERVICE WILL BE TERMINATED IMMEDIATELY AND WITHOUT WARNING SHOULD YOU USE OUR SYSTEM AS PART OF ANY BULK EMAIL CAMPAIGN. You may also be subject to fines and legal actions as a result of your bulk email promotion.
- E. Assignment. This agreement is personal to you. You may not assign your rights under this agreement without our prior written consent. If you do assign your rights, as would be the case were someone other than you to use your account, you shall remain liable to us for any fees due under this agreement. We may assign this agreement at any time.
- F. Change of Terms and Conditions. We reserve the right to change the terms and conditions of this agreement as needed. Use of our servers by you after said changes constitutes acceptance of those new terms and conditions. If you do not agree to the new terms and conditions, you may terminate this agreement in accordance with Section B.
- G. Notification of Account Changes. You agree to provide us with such other information relating to your use of this service as we deem necessary or desirable. You agree to notify us if your address, email address, telephone number, billing information changes.
- H. Notices. All notices, requests, demands, and other communications under this agreement shall be in writing and shall be deemed to have been given on the date of delivery: if delivered personally to the party to whom notice is to be given; if sent by electronic mail with a cc: to sender; if sent by fax; or on the third day after mailing by first class mail.
- I. General Provisions. The subject headings of the articles and sections are for convenience only, and shall not affect the construction or interpretation of any of its provisions. If any portion of this agreement is found invalid or unenforceable, that portion shall be severed and the remainder of this agreement shall remain in force. This agreement constitutes the entire agreement between us pertaining to its subject matter and supersedes all of our prior agreements, representations, and understandings. Subject to Section I, no supplement, modification, or amendment of this agreement shall be binding unless executed in writing by both parties. No waiver of any of the provisions of this agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. This agreement may be executed in one or more counterparts. Each shall be deemed an original, but all of which together shall constitute one and the same instrument. If an organization is the subscriber, the individual signing up for our services represents that he or she is duly authorized to enter into this agreement on behalf of that organization. In the event of a dispute, the parties agree to submit the matter to the Community Dispute Resolution Service or any recognized Arbitration Board located within our state and county, before instituting litigation.
Supplemental TERMS and CONDITIONS:
This Agreement contains the complete terms and conditions which you (the "Affiliate") agree to be bound by as a participant in the Barak Hosting Inc., affiliate program (the "Program") and which shall apply once your application to participate in the Program has been accepted by Barak Hosting Inc..
ARTICLE 1. INTRODUCTION
- 1.01 Barak Hosting Inc. is the sole and exclusive owner of all right, title and interest including all intellectual property rights in and to the contents, logos, style, design, look and feel, trade names, trademarks to all literary works, computer/website software programs, products, goods and services (including and all future versions thereof) currently entitled the ("Product"). Product refers to the singular as well as the plural.
- 1.02 Barak Hosting Inc., intends to sell and distribute the Product electronically and or physically using, in part, third party affiliates who will establish links to Barak Hosting Inc.'s Web site where the Product will be offered for sale.
- 1.03 If, in the future, Barak Hosting Inc. sells and distributes any other goods or services through the Internet, it shall offer to its Affiliates at that time the opportunity to become Affiliates of such goods or services. Such goods or services shall be included in the defined term "Product" and this Agreement shall then also apply to such goods or services.
ARTICLE 2. PARTICIPATION & REPRESENTATION
- 2.01 Barak Hosting Inc. hereby grants to the Affiliate the non-exclusive and revocable right to market and advertise the Product and to establish links to Barak Hosting Inc.'s Web site, in accordance with this Agreement.
- 2.02 The Affiliate shall diligently and continuously market and advertise the Product through the Internet and shall develop, operate and maintain links from its site to Barak Hosting Inc.'s site at its sole cost and expense.
- 2.03 The Affiliate represents and warrants to Barak Hosting Inc. that this Agreement has been duly and validly executed and constitutes and shall continue to constitute a legal obligation, enforceable in accordance with its terms.
ARTICLE 3. AFFILIATE SALES COMMISSIONS
- 3.01 If, as a result of a direct advertising effort of the Affiliate, a referred customer of the Affiliate or of a member of the Affiliate's team (as defined) orders and pays for the Product or other goods or services sold by Barak Hosting Inc. in the future, Barak Hosting Inc. shall pay the Affiliate a sales commission determined in accordance with the Affiliate Commission Schedule which current version is available on the Barak Hosting website and which forms an integral part of it. The commission is based upon the paid selling price of the purchased goods or services before any tax and excluding returns ("Commission"). "Commissions" will be paid within 30 days after the month previous period ending to prevent problems with returned/cancelled services.
- 3.02 AN AFFILIATE SHALL NOT RECEIVE A SALES COMMISSION FOR A PRODUCT PURCHASE MADE, DIRECTLY OR INDIRECTLY, BY HIMSELF/HERSELF. Barak Hosting Inc., in its sole and complete discretion may create multiple level compensation plans. In the case of a multiple level compensation plan, an Affiliate's Team means all Affiliates introduced to the Program by the Affiliate in question. In the event that more than one Affiliate claims the same commission for a sale, Barak Hosting Inc. shall select the Affiliate which shall receive the compensation.
- 3.03 The Affiliate shall be responsible for all taxes and other similar levies applicable to the Sales Commission pursuant to any law or regulation. The Affiliate shall report the Sales Commission to its taxation authorities as required by law.
- 3.04 Barak Hosting Inc. shall post and maintain, on a current basis, a designated password-protected Web page for each Affiliate showing the Affiliate's participation in the Program including number of Current and New per period customers referred by it and an estimate of the Sales Commission owing to it. Barak Hosting Inc., shall, on or about the 15th of each month, mail or otherwise transmit the Commission representing the amount payable for the sales completed in the previous month. Sales information of the referred transactions, supporting the amount paid, shall be made available on the Affiliate's private site. Affiliates will receive the Sales Commission in US funds. Commission overpayments may be deducted from future payments or shall be reimbursed by the Affiliate.
- 3.05 Upon written request and at the Affiliate's expense, the Affiliate may cause Barak Hosting Inc.'s books and records to be examined by an independent firm of accountants to ensure compliance with this Agreement. In the event that the examination reveals an underpayment error of more than 5%, the underpayment and the reasonable cost of the examination to a maximum of 250.00 dollars shall be paid by Barak Hosting Inc.. If the examination does not reveal an underpayment as aforesaid, the Affiliate shall compensate Barak Hosting Inc. for its reasonable cost to a maximum of 250.00 dollars. The firm of accountants utilized shall limit the scope of their examination to the relevant information regarding the Sales Commission and shall keep private and confidential all information obtained in the course of the said examination.
ARTICLE 4. AFFILIATE SITES AND PROMOTION METHODS
- 4.01 The Affiliate shall be solely responsible for all materials that appear on its site. It shall strictly adhere to all applicable laws and regulations in conducting its business and more specifically in marketing and advertising the Product. Without restricting the generality of the foregoing, the Affiliate shall not send unsolicited e-mail and shall not send e-mail or any other communication to a recipient if the recipient has requested that it discontinue such communication, nor shall it send or display on its Web site any material that may be considered to be harassing, libelous, defamatory, legally obscene or pornographic, threatening, abusive or hateful.
- 4.02 Barak Hosting Inc. shall have the right, but not the obligation, to pre-approve the graphics and logos used on any Web site which is linked to its site. Furthermore, the Affiliate shall annotate its site with appropriate copyright, trademark and other similar notices, which shall be approved by Barak Hosting Inc.. If the Affiliate specifies a price point for the Product in its marketing and advertising, it shall ensure that it is updated regularly to reflect all price changes.
- 4.03 Barak Hosting Inc. shall have the right to monitor the Affiliate's Web site at any time and from time to time to determine if it is in compliance with the terms and conditions on this Agreement.
- 4.04 The Affiliate agrees not to use any predatory advertising methods designed to generate traffic from sites that they have not contracted with in the online promotion of Barak Hosting Inc.'s products, services or affiliate program. Predatory advertising is defined as any method that creates or overlays links or banners on web sites, spawns browser windows, or any method invented to generate traffic from a web site without that web site owner's, knowledge, permission, and participation. Examples include, but are not limited to, keyword parsing, browser plugins such as TopText and Surf+, banner replacement technology such as Gator, browser spawning technology that is not web site dependent. Participation in predatory advertising programs will be cause for the affiliate's immediate termination.
ARTICLE 5. ORDER PROCESSING
- 5.01 Barak Hosting Inc. shall establish the procedures of selling the Product including, without limitation, the placement of orders, pricing, payment terms, processing, delivery, returns etc. Without restricting the generality of the foregoing, Barak Hosting Inc. shall have the right to cancel, suspend or delay any order for the Product, including the right to discontinue selling the Product at any time.
ARTICLE 6. LICENSES AND GOODWILL PRESERVATION
- 6.01 Barak Hosting Inc. shall have the right, but not the obligation, to approve, in its sole and absolute discretion and with due regard to the protection and preservation of the goodwill of the Product any promotional, advertising or marketing item used by the Affiliate. The Affiliate shall make all deletions and modifications suggested by Barak Hosting Inc. on any site where the Product is mentioned.
- 6.02 The Affiliate shall acknowledge and clearly identify and respect that all proprietary information, trademarks, copyrights and all other similar rights in and arising out of the Product are, and shall continue to be, the exclusive property of Barak Hosting Inc.. In the event the Affiliate learns of any claim or allegation that the Product infringes upon or violates any intellectual property or proprietary rights of a third party, or contains any unlawful, libelous, or untrue statement, it shall immediately notify Barak Hosting Inc., so as to enable Barak Hosting Inc., to defend, settle or otherwise resolve the claim or allegation in a manner that Barak Hosting Inc. deems appropriate in its sole discretion.
- 6.03 Customers who purchase the Product through the Program shall be deemed to be customers of Barak Hosting Inc., and the Affiliate shall refer all Product-related questions, requests or queries to Barak Hosting Inc.. Barak Hosting Inc. shall have the right to utilize the Affiliate's name and logo to advertise, market, promote and publicize in any manner the Product.
- 6.04 The Affiliate shall not make or give to a customer or a potential customer any warranty, representation or other statement concerning the Product without first obtaining the written consent of Barak Hosting Inc..
ARTICLE 7. RELATIONSHIP OF PARTIES
- 7.01 While the parties shall work hand-in-hand for the benefit of both, the parties acknowledge and agree that the Affiliate shall, from a legal perspective, act as and shall be an independent contractor and not an employee or agent of Barak Hosting Inc.. Nothing in this Agreement shall create a partnership, joint venture, agency, or franchise between the parties in the legal sense of these terms. The Affiliate shall not sign any document in the name of or on behalf of Barak Hosting Inc. nor shall it hold itself out as being an agent of Barak Hosting Inc. or as having apparent authority to contract for or bind Barak Hosting Inc.
ARTICLE 8. LIMITATION OF LIABILITY
- 8.01 In no event shall Barak Hosting Inc. be liable for special, incidental, consequential or punitive damages, including, without limitation, any damages resulting from loss of profits, loss of business or loss of goodwill arising out of or in connection with this Agreement or the Product, whether or not such party has been advised of the possibility of such damages. Barak Hosting Inc. shall not be liable for any damages if, for any reason whatsoever, its Web site fails or is non-operational for any reason whatsoever.
ARTICLE 9. TERM OF THE AGREEMENT
- 9.01 In the event that the Affiliate breaches any of the undertakings or obligations set forth in this Agreement and does not remedy same within 7 days notice from Barak Hosting Inc., it shall automatically forfeit the Sales Commission then receivable or receivable at any time in the future. Barak Hosting Inc. shall, in addition, have the right to terminate this Agreement and shall retain all other rights and remedies available to it at law or in equity.
- 9.02 This Agreement shall automatically terminate if the Affiliate ceases to actively market the Product for a period of 90 days. Barak Hosting Inc. shall have the right but not the obligation to terminate this Agreement with an Affiliate whose Sales Commission in a calendar year was in the bottom 20 percent of Sales Commission of all Affiliates in the calendar year in question, by giving the Affiliate 90 days notice of termination. In such cases the Sales Commission owing, representing the sums earned shall be paid even after termination of this Agreement. The Affiliate shall have the right to terminate this Agreement at any time upon written notice to Barak Hosting Inc..
- 9.03 As soon as notice of termination of this Agreement is given or upon termination as herein provided, the Affiliate shall immediately cease its marketing and advertising of the Product and shall forthwith eliminate all mention and references to the Product and all links to Barak Hosting Inc.. Pending the completion of the foregoing, Barak Hosting Inc. may hold in abeyance the Sales Commission.
ARTICLE 10. MODIFICATION AND APPLICATION OF AGREEMENT
- 10.01 Barak Hosting Inc. may, in good faith, modify any of the terms and conditions contained in this Agreement (including the Affiliate Compensation Schedule), at any time and in its sole discretion, by posting a change notice or a new agreement on its Web site. If any modification to this Agreement is not acceptable to the Affiliate, its only recourse is to terminate this Agreement. The Affiliates continued participation in the Program following the said posting of a change notice or new agreement shall constitute binding acceptance by the Affiliate of the change.
- 10.02 If any of the provisions of this Agreement are determined by a court to be unenforceable, they shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect.
- 10.03 The Affiliate shall not assign, transfer or convey this Agreement or any part thereof to any other party without Barak Hosting Inc.'s consent which shall not be unreasonably refused.
- 10.04 This Agreement shall endure to the benefit of and be binding upon the parties hereto and their respective heirs, legatees, executors, legal representatives, successors and assigns.
- 10.05 This Agreement represents the entire agreement between the parties and supersedes all prior negotiations, agreements and understandings, if any. For greater certainty but without restricting the aforementioned, information contained in any of the following shall not form part of this Agreement, namely:
ARTICLE 11. INDEPENDENT INVESTIGATION
Descriptions of the Program (including the descriptions of Commission payable to the Affiliates) on Barak Hosting Inc.'s Web site(s);
E-mail communications from Barak Hosting Inc. or from any of its employees, officers or directors;
Information in the Product, or in marketing/informational documents.
- 11.01 The Affiliate acknowledges that it has reviewed this Agreement and agrees to all its terms and conditions. The Affiliate understands that Barak Hosting Inc. may at any time solicit customer referrals on terms that may differ from those contained in this Agreement or operate Web sites that are similar to or compete with the Affiliate's Web site. The Affiliate has independently evaluated the desirability of participating in the Program and is not relying on any representation, guarantee or statement other than as set forth in this Agreement.
ARTICLE 12. MISCELLANEOUS PROVISIONS
- 12.01 Any reference in this Agreement to gender includes all genders and words importing the singular number only shall include the plural and vice versa.
- 12.02 The insertion of headings and the division of this Agreement into Articles and Sections are for convenience reference only and are not to affect its interpretation.
- 12.03 Each of the parties hereto covenants and agrees that it shall execute and deliver such additional agreements and documents and do such acts and things as may be reasonably necessary fully and effectually to carry out the intent and purpose of this Agreement.
- 12.04 Time shall be of essence of this Agreement.
- 12.05 All notices, requests and other communications shall be deemed to have been received when posted by Barak Hosting Inc. on its Web site. It shall also be deemed to have been received on the next business day if transmitted by facsimile, e-mail or any other form of electronic mail to the last known electronic address of the intended recipient.
- 12.06 If a dispute arises under this agreement, we agree to first try to resolve it with the help of a mutually agreed-upon mediator in the following location: Palm Beach County, Florida. Any costs and fees other than attorney fees associated with the mediation will be shared equally by each of us.
If it proves impossible to arrive at a mutually satisfactory solution through mediation, we agree to submit the dispute to binding arbitration at the following location: Palm Beach County, Florida, under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitration may be entered in any court with jurisdiction to do so.
The parties have required that this Agreement and related documents be drafted in English.
We will reject anyone who uses marketing techniques that...
- Exploit sex to sell
- Promote violence
- Are hateful in any way
- Are harassing or use spam in any way, shape, or form
- Are libelous or defamatory
- Are threatening or abusive
- Are illegal or on the borderline
- Violate the copyrights or trademarks of others
- Are in such poor taste that we do not want the association.
By Filling In The Barak Hosting Affiliate Application Form And Enrolling You acknowledge that you have read, understand, and agree with the terms and conditions of the program which are outlined above.
Revised: June 2008