| | - VA LINUX SYSTEMS AFFILIATE UNDERGROUND TERMS AND CONDITIONS
- This Agreement WILL govern your participation in the VA Linux Systems, Inc. ("VA Linux") "Affiliate underground" for members of the Linux and OpenSource community upon YOUR ACCEPTANCE OF ALL THE TERMS SET FORTH BELOW. PLEASE READ THE TERMS CAREFULLY BEFORE CLICKING ON THE “ACCEPT” BUTTON. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ENROLL IN THE AFFILIATE UNDERGROUND AND SHOULD CLICK ON THE “REJECT” BUTTON TO EXIT THIS PAGE.
- Enrollment in the Affiliate Underground:
- To begin the enrollment process, you must submit a completed application to VA Linux via the VA Linux Website. VA Linux will evaluate your application in good faith and notify you of your Website’s acceptance or rejection. VA Linux may accept or reject your application in its sole and absolute discretion; by way of example only, VA Linux will reject any Website which promotes or encourages illegal activities.
If VA Linux rejects your application, you may reapply to the Affiliate Underground at any time. Links from your Site to our Website following Acceptance into the Affiliate Underground: Following VA Linux’ acceptance of your Website for participation in the Affiliate Underground, you will receive an email which will explain how to create a banner-based link to the VA Linux Website home page and provide you with the code necessary to implement such links (each, an “Affiliate Link”). You must incorporate each Affiliate Link into your Website without any modification of VA Linux’ graphics, code or any other content or information and you may only place one Affiliate Link to the VA Linux Website home page on each page of your Website. - Order Processing:
- VA Linux will process orders for VA Linux products placed by users who reach the VA Linux Website via your Affiliate Link (“Affiliate Link Users”); provided that VA Linux reserves the right in its sole and absolute discretion to reject any order. VA Linux will be responsible for all aspects of order processing and fulfillment, including the preparation of order forms, the processing of payments and the handling of customer service, including cancellations and returns. VA Linux will track sales made to Affiliate Link Users who purchase its products using the Affiliate Link and will send you reports summarizing this sales activity in a form and on a schedule established by VA Linux in its sole discretion in accordance with generally accepted accounting principles; provided that VA Linux will include such a report with each remittance to you of Referral Fees (as defined below), evidencing its calculation of those Fees.
- Referral Fees:
- VA Linux will pay you referral fees on its sale of products to Affiliate Link Users (collectively, “Referral Fees”) as follows: for a product sale to generate a Referral Fee, the Affiliate Link User must follow the Affiliate Link from your Website to the VA Linux Website, purchase a VA Linux product using VA Linux’ automated ordering system, accept delivery of that product at the shipping destination and remit full payment to VA Linux. In addition, upon an Affiliate Link User’s click-through on the Affiliate Link, that User will receive a “cookie” implemented by VA Linux which identifies that User as an Affiliate Link User, such cookie to expire 30 days from that User’s date of first linkage to the VA Linux Website. If an Affiliate Link User makes a purchase of any VA Linux product in accordance with this paragraph at any time during that 30-day period, you will be paid a Referral Fee on each such purchase.
Notwithstanding the foregoing, if any Affiliate Link User rejects or otherwise disables the identifying cookie implemented by VA Linux (each, then, an “Unidentifiable User”), you acknowledge that (i) VA Linux has no ability whatsoever to track any purchase by an Unidentifiable User other than any purchase made immediately during his/her first visit to the VA Linux Website via the Affiliate Link; and (ii) VA Linux will have no liability at any time to remit to you any Referral Fees on any purchases made by Unidentifiable Users. - Fee Schedule:
- You will earn Referral Fees based on a percentage of the net revenues (excluding, among other things, shipping, handling, taxes, discounts and rebates), less credits and returns, actually received by VA Linux on the sale of a VA Linux product to an Affiliate Link User ("VA Linux’ Net Revenues"), such percentage to be established by VA Linux in its sole and absolute discretion. The current Referral Fee percentage is 1.0% of VA Linux’ Net Revenues.
- Fee Payment:
- VA Linux will remit aggregated Referral Fees on a quarterly basis. Subject to a minimum Referral Fee payment of $100.00, 45 days after the end of each of its fiscal quarters during the Term hereof, VA Linux will remit to you the aggregate Referral Fees earned on products that were shipped to Affiliate Link Users during that quarter. Within 90 days after the termination of this Agreement, VA Linux will reconcile any Referral Fees still due and owing to you against any post-termination credits and returns and either remit any such Fees due to you or bill you for any overpayment thereof. Prior to VA Linux’ remittance to you of Referral Fees hereunder, those Fees will be credited to an internal VA Linux account in your name (the "Referral Fee Account").
- Additional Referral Rewards:
- In addition to the Referral Fees payable to you as set forth above, VA Linux will also award you one point for every Affiliate Link impression. You may redeem these points in 1000-point increments with each such increment earning you a credit of $1.00 against purchases in VA Linux’ Underground Store at www.whiterockdogpark.org/about/affiliates/store.html. VA Linux will provide you with a password to the Store concurrently with the creation of your Referral Fee Account. To redeem your points on any purchase of a VA Linux product, you will provide VA Linux with your Referral Fee Account number and VA Linux will debit the product purchase price against the balance in your Account, less any credits due and owing to you hereunder.
- Policies and Pricing:
- Affiliate Link Users who buy VA Linux products will be deemed to be customers of VA Linux. Accordingly, all VA Linux rules, policies and operating procedures concerning customer orders, product pricing and availability, customer service and product sales will apply to those customers and VA Linux may modify its prices, policies and operating procedures at any time.
- Limited License:
- On the acceptance of your application, VA Linux will grant you a nonexclusive, nontransferable, non-royalty-bearing and revocable right to use only the VA Linux tradename and logo provided by VA Linux in digital format as set forth above (collectively, "VA Linux Intellectual Property") for the sole purposes of implementing the Affiliate Links, identifying your Website as a Affiliate Underground participant and generating VA Linux product sales. Further to the foregoing terms, you may not modify any VA Linux Intellectual Property in any way. VA Linux owns and shall retain all right, title and interest in and to the VA Linux Intellectual Property and may revoke your license at any time on written notice.
- Responsibility for your Website:
- You will be solely responsible for (i) the development, operation and maintenance of your Website and (ii) all content and other materials that appear thereon. By way of example only, you will be solely responsible for:
- the technical operation of your Website and all related equipment;
- creating and posting Affiliate Links on your Website which link successfully to the VA Linux Website, subject to the foregoing restrictions;
- the accuracy and appropriateness of materials posted on your Website;
- ensuring that materials posted on your Website do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy rights, rights of publicity or other personal or proprietary rights); and
- ensuring that materials posted on your Website comply with all applicable laws and regulations.
VA Linux disclaims all liability for these matters. Further, you will indemnify, defend and hold VA Linux harmless from and against all claims, damages and expenses (including, without limitation, attorneys’ fees) arising out of or relating to the development, operation, maintenance and/or contents of your Website. - Term of the Agreement:
- The Term of this Agreement will begin upon VA Linux’ acceptance of your Affiliate Underground application and will terminate on written notice by either party for any reason. You are only eligible to earn Referral Fees on VA Linux’ Net Revenues derived from sales of VA Linux products occurring during the Term, less credits and returns.
- Modification:
- VA Linux may modify, amend or delete any of the terms and conditions contained in this Agreement at any time in our sole discretion by posting a change notice or a new agreement on the VA Linux Website. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE AFFILIATE UNDERGROUND FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE VA LINUX SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
- Relationship of Parties:
- VA Linux and you are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. You will have no authority to make or accept any offers or representations on behalf of VA Linux. You will not make any statement, whether on your Website or otherwise, that reasonably would contradict anything in this Section.
- Limitation of Liability:
- VA Linux shall not be liable for any indirect, special or consequential damages (including loss of revenue, profits, use or data) suffered or incurred by you in connection with this Agreement or the Affiliate Underground even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Affiliate Underground will not exceed the total referral fees paid to you under this Agreement.
- Disclaimers:
- VA Linux makes no express or implied warranties or representations with respect to the Affiliate Underground or any VA Linux products sold hereunder, including, without limitation, warranties of fitness, merchantability, noninfringement or any implied warranties arising out of a course of performance, dealing or trade usage. In addition, VA Linux makes no representation that the operation of our Website will be uninterrupted or error-free and VA Linux will not be liable in any way for the consequences of any interruptions or errors.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITSTERMS AND CONDITIONS. YOU UNDERSTAND THAT VA LINUX MAY AT ANY TIME (DIRECTLY ORINDIRECTLY) SOLICIT CUSTOMER OR USER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT, MAY OPERATE WEBSITES THAT ARE SIMILAR TO ORCOMPETE WITH YOUR WEBSITE OR MAY IMPLEMENT PROGRAMS OTHER THAN THE AFFILIATE UNDERGROUND WHICH WILL NOT BE OPEN TO YOU. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE UNDERGROUND AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. - Miscellaneous
- This Agreement will be governed by and construed in accordance with the laws of the state of California withoutreference to its conflict of law rules. Any action relating to this Agreement must be brought in the federal or state courts located in Santa Clara County, California and you irrevocably consent to the jurisdiction of such courts. If either party brings an action to enforce its rights hereunder, the losing party shall pay the prevailing party’s legal fees and expenses, including reasonable attorney’s fees and costs. This Agreement (i) embodies the final, complete and exclusive understanding between the parties with respect to its subject matter and (ii) replaces and supersedes all previous oral or written agreements, understandings or arrangements between the parties. The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of such provision or of the right of such party thereafter to enforce such provision or any other provision. You may not assign this Agreement, by operation of law or otherwise, without VA Linux’ prior written consent. Subject to that restriction, this Agreement will be binding on and inure to the benefit of the parties and their respective successors and assigns. Notices required to be given hereunder shall be effective when received and shall be sufficient if given in writing and sent by email, telefax, regular mail or overnight courier service with confirmation of receipt.
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