THIS AGREEMENT CONTAINS A BINDING ARBITRATRION CLAUSE. PLEASE READ THROUGH IT CAREFULLY.
IMPORTANT—READ THESE TERMS CAREFULLY BEFORE APPLYING FOR, ACCEPTING, OR USING THE COMODO AFFILIATE PROGRAM, ESTABLISHING AN AFFILIATE PROGRAM ACCOUNT, OR MARKETING AND PROMOTING THE AFFILIATE PROGRAM PRODUCTS AND SERVICES. BY USING OR APPLYING FOR A COMODO AFFILIATE PROGRAM ACCOUNT OR ACCEPTING THIS AGREEMENT BY CLICKING ON “I ACCEPT” BELOW, YOU, THE AFFILIATE, ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AFFILIATE PROGRAM AGREEMENT, DO NOT APPLY FOR, ACCEPT, OR USE AN AFFILIATE PROGRAM ACCOUNT OR MARKET OR PROMOTE THE AFFILIATE PROGRAM PRODUCTS AND SERVICES.
This Affiliate Program Agreement ("Agreement") constitutes the final binding agreement between you (as the “Affiliate”) and Comodo Security Solutions, Inc. ("Comodo") which has its principal place of business at 525 Washington Blvd, Suite 1400, Jersey City, NJ 07310.
1.1. Acceptance. By accessing, applying for, or accepting a Comodo Affiliate Program account or by marketing or promoting the Affiliate Program products or services, Affiliate agrees to be bound by the terms and conditions of this Agreement.
1.2. Registration. Affiliate agrees to provide full and accurate information about itself as requested in Comodo’s registration form and to promptly update the registration form in a timely manner whenever such information changes. Affiliate acknowledges and agrees that any information provided that is untrue, inaccurate, or incomplete can result in the immediate suspension or termination of all rights granted herein in Comodo’s sole and absolute discretion. If Comodo ever finds any information provided to be untrue, incomplete, or inaccurate or has reason to believe that any information may be untrue, incomplete, or inaccurate, then Comodo, in its sole and absolute discretion, may suspend or terminate Affiliate’s participation in the Comodo Affiliate Program including the licenses and rights granted herein, may suspend or terminate Affiliate’s account, and may refuse to allow future promotional, marketing, or referral activities by Affiliate.
1.3. Appointment of Affiliate. Comodo hereby appoints Affiliate to be a nonexclusive advertiser and promoter of the Affiliate Program products and services listed in Schedule A attached hereto (“Products”) for the term of this Agreement. Affiliate accepts the appointment and agrees to market and promote the sale of Products pursuant to the terms and conditions found in this Agreement in a manner satisfactory to Comodo in its sole and absolute determination. The Products to be marketed by Affiliate and sold and distributed by Comodo in connection with the Affiliate Program shall be set forth in Schedule A attached hereto. Schedule A may be amended by Comodo, in its sole and absolute discretion, from time to time by posting the amended Schedule on its website. An amended Schedule shall be effective upon the Schedule’s posting to the Comodo website. Any amended Schedule shall be considered completely incorporated into this Agreement and shall be subject to the terms and conditions provided herein.
1.4. Account Management Access. In connection, with Affiliate’s account, Affiliate is granted a revocable, limited, personal, non-exclusive, non-transferable, and non-sublicensable license to access Comodo’s account management software (“Software”) using the account password and access information provided by Comodo. This software may be accessed by Affiliate only for the purpose of tracking sales and creating revenue reports and not for any other purpose. Affiliate agrees to be responsible for the password and account information provided and shall treat such information as Confidential Information as defined in Section 13. Affiliate shall immediately report any compromise or suspected compromise of its account information or password. Comodo does not represent or warrant the Software in any manner.
1.5. Competency. Affiliate agrees to become knowledgeable of the Products and their uses. This level of technical competence must be sufficient to demonstrate and market Products and in some cases, as provided in Schedule A attached hereto, provide basic training in the use of the Products.
1.6. Non-Exclusive. Affiliate acknowledges that its appointment as a promoter and marketer and all other rights granted to it under this Agreement are non-exclusive, and that Comodo reserves the right to appoint additional affiliates, distributors, or sales representatives for the Products, and for any other products offered by Comodo. Except as otherwise provided herein, Comodo reserves the right, at any time, to sell or offer the Products directly in each case without thereby incurring any obligation for commission or compensation to Affiliate of any type or nature.
1.7. Limited Rights. All rights not expressly granted to Affiliate herein are reserved to Comodo. Affiliate shall not (a) sublicense, transfer, assign or hypothecate any rights granted herein; (b) purchase Products for resale except pursuant to this agreement for those specific purposes; (c) hold itself out as an authorized representative or agent of Comodo; (d) make any representations and/or warranties concerning Comodo or the Products except as expressly authorized by Comodo; or (e) utilize any provided website material or ordering pages in any other improper manner or purpose. Affiliate may not and is not granted any license to distribute, host, modify, access, or provide access to the Products.
2.1. Retail Prices. Pricing for all Products shall be determined by Comodo’s Retail List Price ("Retail List Price") in effect on the date the order is received by Comodo as posted on the Comodo website, which Retail List Price initially shall be as set forth on Schedule A attached hereto.
2.2. Pricing Amendments. Comodo shall have the right, in its sole and absolute discretion, from time to time, to establish, change, alter, or amend its Retail List Price and other terms and conditions of a sale (sales policies) to a customer without notice to Affiliate by posting such changes, amendments, modifications, or alterations on its website. Affiliate agrees to frequently review the Comodo website to familiarize itself with any changes in the Retail List Price or the terms and conditions provided herein.
2.3. Special Pricing. Comodo shall have the right, in its sole and absolute discretion, from time to time, to establish and/or approve prices for quotes and proposals for special pricing, special programs, systems and volume discounts for Products sold under this Agreement. A new, signed Special Pricing and Commission Addendum will be required for each volume discount arrangement.
3.1. Commissions. Affiliate shall be entitled to receive the commission set forth in Schedule A for all Products purchased by Affiliate Clients (as defined herein) from Comodo. Affiliate Clients shall be defined as all Comodo customers who use the ordering link provided by Comodo to Affiliate for the purpose of purchasing the Products along with any Comodo customers that purchase Products from the Comodo site where a cookie has been placed on that entities’ computer (“Tracking Cookie”) indicating that the Affiliate referred the entity to the Comodo site. Provided such activity is allowed by the potential Comodo customer, Tracking Cookies shall be placed on each potential Comodo customer’s computer automatically by Comodo when the Comodo customer uses the ordering URL provided to Affiliate. Tracking Cookies shall expire 30 days after their creation. In the event that more than one Tracking Cookie exists for on a computer, then the Comdo customer shall only be considered an Affiliate Client only if the newest cookie or if the existing cookie is one associating with Affiliate. No commission or fees shall be due or owed (i) for any Tracking Cookie not associated with Affiliate, (ii) where the customer is already associated with a separate affiliate, reseller, or distributor of Comodo’s, (iii) where the Tracking Cookie associated with Affiliate is older than another Tracking Cookie on the same computer, (iv) where the Tracking Cookie lists an entity other than Affiliate as the referring entity, or (v) in any other circumstances where it is unclear whether Affiliate was the entity referring the customer to the Comodo site. No commission or fees shall be due by Comodo for any customer of Comodo’s in any other circumstance. All customer orders shall be subject to acceptance or rejection by Comodo of the order in Comodo’s sole discretion. Commissions will only be earned and due for fully paid purchases and orders and Affiliate Client shall not include any entity that does not pay for any Products ordered or that receives a refund or rebate for the full amount of the Products ordered.
3.2. Future Purchases. Once a customer has purchased Products from Comodo and is considered an Affiliate Client, all future purchases by the same customer shall be considered purchasers of an Affiliate Client and a commission as calculated in Section 3.1 shall be paid by Comodo to Affiliate.
3.3. Delivery. Comodo shall use its reasonable efforts to activate new accounts and make the Products available for download or use in a timely fashion. All purchases of Products shall be governed by Comodo’s sales policies in effect at the time (as determined by Comodo in its sole and absolute discretion) and shall be subject to the Affiliate Client’s acceptance of the EULA associated with the product. Affiliate agrees that it shall not have any right or authority to accept any order or to assume or create any obligation, express or implied, on behalf of Comodo. All invoices for sales by Comodo will be rendered by Comodo directly to the customer. All payment for Products by the Affiliate Client shall be made directly to Comodo, and Affiliate may not accept any payments on Comodo’s behalf. Any financing arrangements, collection efforts, or refunds shall be made and subject to Comodo’s sole and absolute discretion. Affiliate agrees that it has no authority to make any collections on behalf of Comodo for any unpaid invoices, except in those instances where Comodo specifically requests in writing Affiliate’s assistance in the collection of past due invoices.
3.4. Limitations. Affiliate's compensation for the sales of Products shall be calculated solely on a commission basis, and Affiliate shall receive no compensation other than commissions described in Section 3.1. Comodo will pay commissions monthly, within thirty (30) days after the end of the month in which payment is received by Comodo from an Affiliate Client. NO COMMISSION WILL BE PAID UNTIL THE AMOUNT DUE TO AFFILIATE MEETS OR EXCEEDS $100. Comodo will not pay a commission to Affiliate for consulting services or field service. Affiliate is responsible for all of its own expenses or any expenses incurred by Affiliate in connection with he performance of Affiliate’s duties or obligations hereunder. Comodo has the right to refuse any order for the Products made by an Affiliate Client or other customer in its sole and absolute discretion. No compensation or commission shall be owed to Affiliate for any refused orders. All compensation to Affiliate shall be adjusted by crediting or debiting any compensation amounts owed to Affiliate by Comodo in months subsequent to the sale of the Products, as appropriate, to account for and recognize any price adjustments, return of products by customers for credit/refund, and the like.
3.5. Taxes. Affiliate is solely responsible for payment of any taxes resulting from Affiliate’s actions under this Agreement, exclusive of taxes related to Comodo’s income. Affiliate agrees to hold harmless Comodo from all claims and liability arising from Affiliate’s failure to report or pay such taxes. Comodo agrees to hold harmless Affiliate from all claims and liability arising from Comodo’s failure to report or pay taxes based on Comodo’s income.
4.1. Orders Already Placed. Affiliate shall be eligible to receive commissions on all orders placed by Affiliate Clients prior to the effective date of termination and which are delivered not more than sixty (60) days after the effective termination date, except for termination due to breach of this Agreement by Affiliate, in which case, Affiliate shall forfeit any further rights to commissions.
4.2. Sales in Progress. Notwithstanding the foregoing, Affiliate shall also be entitled to receive a commission on all orders accepted after the effective date of termination for which (i) Affiliate has been responsible for obtaining such order and (ii) such orders are delivered within 30 days of the effective date of termination. In order to qualify for a commission on such orders that are accepted by Comodo after the date of termination, Affiliate shall submit a list of all specific pending accounts, upon which commissions could be payable under this Paragraph 4.2, which list shall be subject to Comodo's review and approval. If Affiliate fails to submit the list of orders within ten (10) days of the effective date of termination of this Agreement, Comodo shall not be obligated to pay any commissions other than on those orders accepted prior to the date of termination and only then in accordance with this Agreement. Commissions accruing after termination of this Agreement shall be paid on or before the 30th day of the month following the month in which Comodo receives payment for the order.
5.1. Trademark License. Subject to Affiliate's compliance with the terms and conditions set forth herein, including without limitation, Section 5.2 below, Comodo hereby grants Affiliate a limited, nontransferable right, without right of sublicense, to use and reproduce the Comodo name and Comodo’s trademarks and logos (the “Trademarks”) solely in connection with Affiliate’s marketing and promotional activities. Affiliate grants to Comodo a limited and non-transferable right, without the right to sublicense, to use and reproduce the Affiliate name and Affiliate trademarks and logos. No right is given to use or reproduce any trademark that would indicate Comodo’s endorsement of Affiliate’s site or products or that would be misleading with respect to Comodo’s association and relationship with Affiliate.
5.2. Comodo Approval. Comodo shall have an absolute right of approval in advance over each and every use and representation of the Trademarks, including without limitation, the location and appearance of any link or webpage provided by Comodo or that contains or uses the Trademark that is part of Affiliate’s website. Such approval is in Comodo’s sole and absolute discretion but shall not be unreasonably denied. In no event shall Affiliate use any representation of any Trademark or include any part of the ordering pages provided by Comodo, except in accordance with Comodo’s instructions, until it has received such approval from Comodo in writing, nor shall Affiliate use any such items in any form or manner other than that approved by Comodo.
5.3. Restrictions. Except and only to the extent expressly authorized in this Agreement, Affiliate shall not use the Trademarks or the name “Comodo” (either alone or in conjunction with or as a part of any other word or name) or logos of Comodo: (a) in any advertising, publicity, or promotion; (b) to express or to imply any endorsement of Affiliate’s products or Affiliate’s web site; or (c) in any other manner.. Affiliate shall not use any promotional materials and/or documentation, including but not limited to sales materials, coupons, brochures, web site support, banners, sales ads, EXPO Support, etc., regardless of the form of the communication (hardcopy, electronic, voice, etc.), that refer to Comodo or its products and services unless the promotional materials and/or documentation have been pre-approved in writing by Comodo. Affiliate shall not conduct or carry out any press releases, news conferences, and/or other media and/or public relations activities relating to the other party without Comodo’s advance written approval, which will not be unreasonably withheld. Affiliate may not modify the Products in any manner. Affiliate agrees to use commercially reasonable efforts to advertise and promote the sale and distribution of the Products. Comodo reserves the right, upon prior notice to Affiliate, at any time, to change, modify, or discontinue the Products. Affiliate represents and warrants it shall represent to existing and potential Affiliate Clients only such facts about the Products as Comodo itself states in written product descriptions, advertising, and promotional materials, or as may be stated in other non-confidential written materials furnished by Comodo to Affiliate.
5.4. Press Releases. The Parties shall work together to create a joint press release in order to market the Products offered under this Agreement. In addition, Comodo may in it is sole and absolute discretion release and disclose information about this Agreement or any arrangements, services, products, or marketing related to this agreement or to the services or products provided under this agreement for press releases, case studies, public relations, references, and other services.
6.1. Retention of Rights. Notwithstanding anything to the contrary herein, Comodo, its Affiliates, and its third party Licensors shall retain, and Affiliate and customers shall not obtain or claim, (i) any and all title to, and, except as expressly licensed herein, all rights to the Products, all techniques and ideas embedded therein, all copies and derivative works thereof (by whomever produced, including all changes and improvements requested or suggested by Affiliate or its customers) and all related documentation and materials, and (ii) all copyrights, patent rights, trade secret rights and other proprietary rights in the Products.
6.2. Copyrights. The Products may not be used to post or make accessible any material that infringes the copyright of a third party. If Comodo reasonably believes that the Products are being used in such a manner, access to the Products, including ordering pages, download pages, the Products, access to the Software, and any links provided by Comodo, may be terminated in Comodo’s sole and absolute discretion.
6.3. Use of Trademarks. Affiliate may only use Comodo's trademarks to market the Products during the term of this Agreement as provided herein and may not make any modification to Comodo’s trademarks. Any use of Comodo’s trademarks, and the goodwill deriving therefrom, shall inure to the benefit of Comodo only. Affiliate agrees not to register any of Comodo's trademarks, or any confusingly similar marks, or use them as part of Affiliate's company name. Affiliate will use commercially reasonable efforts to ensure that its employees and others with access to the Products comply with this Agreement. Affiliate will not use the Products or the ordering pages in such a way that might diminish or damage Comodo’s goodwill, including, without limitation, the placement of any Comodo trademarks on any site associated or that could be seen as being associated with pornography, crime, defamation, or copyright infringement.
6.4. Ownership. Comodo represents and warrants that (i) either Comodo, an Affiliate of Comodo, or a Licensor of Comodo’s (collectively, the “Owners”) is the owner of the Products; (ii) it has the right and authority to enter into this Agreement and perform hereunder; and (iii) the Products will not infringe on the right of others. The Products are a collection of Products that are created, distributed, and maintained by various companies, some of which are third parties.
6.6. No Other Rights, Restrictions. Except as expressly set forth herein, Comodo does not grant Affiliate any right or license in the Trademarks, Comodo Data, the ordering pages, any Comodo website, Products, or any portion of any of the foregoing. Affiliate shall not include “Comodo” or any variation or misspelling of “Comodo” in any part of a Affiliate domain name. Affiliate shall not purchase or register “Comodo” or any variation or misspelling of “Comodo” for use in any search engine, sponsored advertising or referral service.
7.1. Non-Compete. Affiliate agrees that during the course of this Agreement, Affiliate will not sell, represent, or promote any products competitive in nature with the Products. Affiliate shall not enter into any understanding, agreement or scheme, express or implied, with any competitor of Comodo with regard to prices, terms or conditions of sales, territories, or customers. Any exchange or discussion of information with a competitor, which violates any antitrust or competition laws or Comodo's confidentiality policies or competitive interests is prohibited and shall result in the immediate termination of this Agreement.
7.2. Subscriber Agreement. A Subscriber Agreement shall be required from each Affiliate Client prior to the Affiliate Client’s ability to use or access the Products. All information submitted as part of the Subscriber Agreement or required for use or download of the Product shall be the sole and exclusive property of Comodo.
7.3. Reporting by Affiliate. Affiliate shall keep Comodo informed as to any problems encountered with the Products and as to any resolutions arrived at for those problems, and shall communicate promptly to Comodo any and all modifications, design changes or improvements to the Products suggested by any entity or person solicited by or making inquiries of Affiliate or by Affiliate. Affiliate further agrees that Comodo shall have, and is hereby assigned, any and all rights, title and interest in and to any such suggested modifications, design changes or improvements to the Products created or developed by Affiliate, without the payment of any additional consideration therefore.
Affiliate represents and warrants that Affiliate’s site does not violate a law or regulation, does not infringe or violate on any copyright, patent, trademark, trade secret, or any other intellectual property right of a third party. Affiliate further represents and warrants that its site does not breach any duty toward or rights of any person or entity or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity. Affiliate’s site is not false or misleading and does not contain any information or statements that are defamatory, libelous, slanderous, or threatening. Affiliate is a validly formed entity and has the rights and powers necessary to enter into this agreement.
Affiliate shall defend, indemnify and hold harmless the Owners and their officers, directors, employees, and agents from and against any and all claims, costs, damages, expenses, losses or other liabilities (including, without limitation, reasonable attorneys' fees) finally awarded against or finally settled with Comodo alleged by any other party arising out of
(i) Affiliate’s negligence or willful misconduct in the performance of its undertaking hereunder,
(ii) Affiliate’s violation or breach of the terms of this Agreement,
(iii) any statements, representations, or warranties made by Affiliate in connection with the Products that were not approved in writing by Comodo, of
(iv) Affiliate’s failure to properly validate and verify any of Affiliate’s customers as may be required by industry standard, regulation, or law provided, however, that Comodo shall:
(a) promptly provide Affiliate notice of any such claim or any other action giving rise to the right of indemnification;
(b) permit Affiliate to control the defense and retain counsel, to represent the Owners, the costs and fees of which shall be borne by Affiliate; and
(c) provide reasonable cooperation to Affiliate in the defense and/or settlement of any such claim or action. Affiliate shall reimburse the out-of-pocket expenses of Comodo incurred in the defense of such claims, as such expenses shall be applicable.
10.1. Warranty Disclaimer; Assumption of Risk. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, COMODO EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, WITH RESPECT TO THE PRODUCTS OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10.2. Damage Waiver. AFFILIATE HEREBY WAIVES, ANY AND ALL LIABILITY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, USE OR DATA) ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO THE USE OF THE PRODUCTS, EVEN IF COMODO HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. COMODO DOES NOT GUARANTEE THAT THE PRODUCTS OR THE COMODO AFFILIATE PROGRAM WILL MEET AFFILIATE’S OR ITS CUSTOMER’S REQUIREMENTS OR EXPECTATIONS NOR THAT THE COMODO PRODUCTS AND SERVICES OR ACCESS TO THE COMODO PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
10.3. Damage Limitation. The cumulative liability of each party to the other for all claims relating to this Agreement, including any cause of action sounding in contract, breach of warranty, tort, negligence, other tort claims, strict liability or any other legal theory, shall be limited in the aggregate to the monies then-payable to the party hereunder. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
10.4. Exceptions. Affiliate may have additional rights under certain laws (e.g., consumer laws) that do not allow the exclusion of implied warranties or the exclusion or limitation of certain damages. If such laws apply, Affiliate’s exclusions or limitations do not apply to Affiliate.
Except for indemnification and confidentiality obligations, neither party may bring any action, regardless of form, arising out of nor relating to this Agreement more than one (1) year after the cause of action has accrued.
Comodo and Affiliate expressly acknowledge and agree that they are acting as independent contractors and not as employees or agents of the other. Comodo and Affiliate are not, and shall not in any direct or indirect way hold themselves out as, or be considered to be, joint ventures, partners, principals, servants, employees, or fiduciaries of each other, and neither Comodo nor Affiliate shall have the power to bind or obligate the other. In particular, but without limiting the generality of the foregoing, there shall be no liability on the part of one party to any other person or entity for any liability or debts howsoever incurred by the other party. Each party shall be responsible for all its own expenses and employees. Nothing herein shall prohibit Comodo and Affiliate from engaging in co-marketing efforts.
13.1. Confidential Information. Except as and to the extent required by law, neither party shall disclose or use, and will direct its representatives not to disclose or use to the detriment of the other party, any Confidential Information, including any and all Comodo Data, furnished by a party or its representatives to the other party or its representatives at any time or in any manner. "Confidential Information" means non-public, business, product, financial and technical information owned by Comodo or Affiliate and disclosed to the other party during the term of this Agreement, and shall include, without limitation: (i) any patents, trade secrets, software, source code, documentation, inventions, know-how, and ideas of the disclosing party relating to the Products and services of the disclosing party, and (ii) any business plans, financial statements, financial or other projections, customer lists, or other information relating to the business of the disclosing party. The receiving party shall take all reasonable measures to prevent any unauthorized disclosure thereof by its representatives. The terms and conditions of this Agreement shall be considered Confidential Information.
13.2. Exceptions. The provisions of this Section 13 shall not apply to such information that is already known to the receiving party or its representatives, as evidenced by written documents or records, or to others not bound by a duty of confidentiality or such information becomes publicly available through no fault of the receiving party or its representatives.
13.3. Return of Materials. Upon the written request of the disclosing party, the receiving party will promptly return to the disclosing party or destroy any Confidential Information in its possession and certify in writing to the disclosing party that it has done so.
13.4. Disclosure. Except as and to the extent required by law, without the prior written consent of the other party, neither party will, and each will direct its representatives not to make, directly or indirectly, any public comment, statement, or communication with respect to, or otherwise to disclose or to permit the disclosure of the existence of discussions regarding this Agreement between the parties or any of the terms, conditions, or other aspects of the Agreement. If a party or any of its representatives is required by law to make any such disclosure, to the extent possible, it must first provide to the other party the content of the proposed disclosure, the reasons that such disclosure is required by law, and the time and place that the disclosure will be made.
14.1. Term. This Agreement shall be effective on the date of Comodo’s acceptance of Affiliate’s application for participation in the Comodo Affiliate Program and shall continue for as long as Affiliate has an active Comodo Affiliate Program account. Either party may also terminate this Agreement by giving the other party written notice of its intent to terminate at least ten (10) days prior to the effective date of termination. Termination with notice may occur for any reason and at any time by either party.
14.2. Minimum Clients. If during the first 90-days immediately following the Effective Date fewer than 250 Affiliate Clients have subscribe for Comodo services or purchased Product, then Comodo may terminate this Agreement effective immediately upon receipt of notice of termination by Affiliate.
14.3. Termination. The Agreement shall terminate immediately by its own force without notice in the event of the admitted insolvency of either party, or if either party shall be dissolved or shall be adjudicated bankrupt or insolvent, or if competent government authorities shall withdraw permission from, or disallow either party to conduct, the activities contemplated herein, or if either party shall voluntarily file a petition under any bankruptcy, insolvency or other similar law providing for reorganization, dissolution, liquidation or winding up. Either party shall immediately advise the other in writing of the occurrence of any event specified in this Paragraph 10(c).
14.4. Termination for Breach. In the event that either party breaches any terms of the Agreement and fails to cure such breach within ten (10) days of receipt of written notice from the other party describing such breach, the non-breaching party shall have the right to terminate the Agreement effective immediately after expiration of such ten (10) day cure period.
14.5. Events on Termination. In the event of termination of the Agreement, either as described above or by virtue of any other provision of this Agreement, within ten (10) days of the date of termination:
a)Affiliate shall deliver to Comodo all sales manuals, price lists, literature and other materials relating to Comodo; and
b)Affiliate shall immediately (A) cease accessing or using its Affiliate Program account, (B) discontinue any use of the name, logo, trademarks or slogans of Comodo and the names of any of the Products, (C) discontinue all representations or statements from which it might be inferred that any relationship exists between Comodo and Affiliate, and (D) cease to promote, solicit orders for or procure orders for Products (but will not act in any way to damage the reputation of Comodo or any Product).
14.6. Survival. Notwithstanding anything to the contrary herein, all sections related to limitations on liability, confidentiality, warranty disclaimers, remedy, and ownership rights shall survive termination of the Agreement.
15.1. Affiliate Responsibility. Affiliate is solely responsible for its own conduct and website maintenance, operation, development, and content. Affiliate agrees to use reasonable efforts to ensure that the Products are used in accordance to the terms and conditions of this Agreement. If any misuse of the Products by a third party becomes known to or is brought to the attention of Affiliate, Affiliate shall remedy the misuse of the third party within a reasonable and practical amount of time.
15.2. No Illegal and Deceptive Acts. Affiliate agrees to abide by all applicable laws and regulations in the use of the Products and Services, including, without limitation, the Data Protection Acts of 1984 and 1998, not to impersonate any person or entity or falsely state or otherwise misrepresent Affiliate’s affiliation with a person or entity, not to use the Products for illegal or immoral purposes, to comply with all regulations, policies, and procedures of networks connected to the Products, not to use Affiliate’s trademarks or promotional material in any way that implies endorsement by Comodo of products or services other than those provided by Comodo.
15.3. Unsuitable Material. Affiliate agrees not to post, promote, or use the Products or the ordering pages for any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethically, or otherwise objectionable material of any kind or nature. Affiliate further agrees not to transmit or post any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or criminal offense, or violate any applicable laws or regulations. Affiliate agrees not to interfere with any advertiser’s or consumer’s use and enjoyment of the Comodo site or engage in survey’s, contests, chain letters, or post or transmit “junk mail”, “spam”, “chain letters”, or unsolicited mass distribution of email.
15.4. Comodo’s Limitations. Affiliate agrees that Comodo does not endorse the content of any advertiser or advertiser communications, postings, or data. Comodo does not assume any responsibility for any threatening, libelous, obscene, harassing, or offensive materials, or any crime facilitated by the use of the Affiliate website, the ordering pages, or the Products.
15.5. System Integrity. Affiliate agrees not to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer. Affiliate agrees not to interfere or disrupt any networks using the Products or use any device, software, or routine that interferes with or attempts to interfere with the proper functioning of the Comodo site or any transactions being offered through or at the Comodo website. Affiliate agrees not to take any action that imposes an unreasonably or disproportionately large load on Comodo’s infrastructure.
16.1. Adherence to Standards. The parties agree to comply with applicable privacy standards. Comodo and Affiliate agree to protect each other’s intellectual property, good will, and reputation and to assume mutual fiduciary duties to protect each other’s encryption products.
16.2. Notices. All notices shall be in writing and in English and may be made by first class mail, return receipt requested, sent to the following:
If to Comodo: If to Affiliate:
Comodo Security Solutions, Inc.
525 Washington Blvd, Suite 1400
Jersey City, NJ 07310
16.3. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.
16.4. Entire Agreement. This Agreement, together with the attached Schedules, shall constitute the entire agreement between the parties and shall supersede any other existing agreements between them, whether oral or written, with respect to the subject matter hereof. There are no oral understandings or undertakings of any kind with respect hereto not expressly set forth and contained herein. No agent of either party shall have any authority to change or modify any of the terms of this Agreement and no amendment of this Agreement or waiver of any its terms or provisions shall be of any effect unless in writing and signed by a duly authorized officer of each party. The failure by any party to enforce any of the terms or conditions of this Agreement shall not constitute a waiver of that party’s rights hereunder to enforce each and every term and condition of this Agreement.
16.5. Force Majeure and Internet Frailties. Any delays in or failure by either party hereto in the performance of any obligation hereunder shall be excused if and to the extent caused by occurrences beyond such party's reasonable control, including but not limited to acts of God, storms, hurricane, earthquakes, riots, war (whether declared or not), sabotage, interruption or failure of telecommunication or digital transmission links, Internet slow-downs or failures, and any other cause or causes, whether similar or dissimilar to those herein specified, that cannot reasonably be foreseen or controlled by such party. Each party acknowledges that the Internet consists of a series of networks that are subject to failures and errors in operation and transmission. In no event shall either party be liable for or as a result of any such failures, errors, access, modifications, diversions or disclosures.
16.6. Impossibility. In the event that further lawful performance of any part of this Agreement by either party shall be rendered impossible by or as a consequence of any law, or any act of any government or political subdivision thereof having jurisdiction over such party or directly or indirectly over a parent of such party, such party shall not be considered in default hereunder by reason of any failure to perform occasioned thereby.
16.7. Governing Law and Venue. This Agreement shall be interpreted and construed under the laws of the state of New Jersey without regard to its conflicts of law principles. Any claims or legal actions by one party against the other arising under this Agreement shall be commenced in the state or federal courts of the state of New Jersey and both parties hereby submit to the jurisdiction and venue of any such court. If legal action is brought to enforce this Agreement or any rights arising under this Agreement, the prevailing party in such litigation will be entitled to recover from the other party all the costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
16.8. Arbitration. Any dispute or claim arising out of, or in connection with, this Agreement shall be finally settled by binding arbitration in New Jersey, in accordance with the Uniform Arbitration Act and the then-current rules and procedures of the American Arbitration Association by one (1) arbitrator appointed by the American Arbitration Association. The arbitrator shall apply the law of the State of New Jersey, without reference to rules of conflict of law or statutory rules of arbitration, to the merits of any dispute or claim. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award, punitive or exemplary damages against any party.
16.9. Assignment. Neither party shall assign its rights, duties, or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law, or otherwise, without the prior written consent of the other party, and any attempt to do so shall be deemed null and void and a material breach of this Agreement.
16.10. Severability. If any provision of this Agreement is determined to be invalid or unenforceable under any applicable statute or rule of law, such provision shall be reformed to the minimum extent necessary to cause such provision to be valid and enforceable, provided the reformed provision shall not have a material adverse effect on the substantive rights of either party. If no such reformation is possible, then such provision shall be deemed omitted, and the balance of the Agreement shall remain valid and enforceable, unaffected by such provision.
16.11. Headings. The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
16.12. Survival. All provisions of this Agreement relating to confidentiality, non-disclosure, proprietary rights, compensation, indemnification and limitations of liability shall survive the termination of this Agreement.
16.13. Third Party Beneficiaries. There are no intended third party beneficiaries under this Agreement and no other parties shall have rights hereunder.
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