VOLUSION IS ONLY WILLING TO ENTER INTO THE PROPOSED PARTNERSHIP WITH YOU UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS AND REMEDIES.
The following agreement ("Agreement") is entered into between you ("Partner" or "you") and Volusion, Inc., a Delaware corporation having a business at 8911 N. Capital of Texas Highway, Suite 1200, Austin, TX 7875. or if you live in the United Kingdom or Australia, Volusion, Ltd, a Private Limited Company, registration number 7275642 having a business at 1 Lyric Square, London W6 0NB (each individually and collectively "Volusion", "we" or "us") and is made effective on the date of electronic acceptance. This agreement sets forth the terms and conditions that govern the partner relationship, and your use of this website (collectively, the "Program"), and is in addition to and not in lieu of any specific terms and conditions that apply to your purchase of a particular product or service.
Your electronic acceptance and/or participation in the Program signifies that you have read, understood and agreed to be bound by the terms and conditions of this Agreement as well as any policies posted on this website and that by such acceptance and/or participation in the Program you agree that any previous agreements between you and Volusion will be terminated and superseded by this Agreement. You acknowledge and agree that this Agreement and your participation in the Program is not accepted by Volusion unless and until you receive email confirmation from Volusion. You further acknowledge and agree that Volusion's acceptance of this Agreement and participation in the Program are performed at Volusion's offices in Austin, Texas, USA.
Volusion, in its sole and absolute discretion, may change or modify this Agreement, and the corporate policies which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon the earlier of (i) our email notification to you advising you of such changes or modifications (ii) your electronic acceptance of this Agreement after such changes or modifications have been made to this Agreement as indicated by the "Last Revised" date at the top of this page or (iii) your continued participation in the Program after Volusion posts the amended Agreement to volusion.com.
Partner shall bear all of its own costs and expenses in connection with the Program(s) unless otherwise expressly agreed by Volusion in writing.
Either Volusion or Partner, as the case may be, will make all required payments to the other party in accordance with the terms and conditions set forth in the applicable Exhibit.
Unless otherwise expressly agreed to by Volusion, as between Volusion and Partner, Partner is solely responsible for all aspects of the development, operation, and maintenance of its web site, its product and service offerings, and all related materials, including, but not limited to, customer service and support, order entry, payment processing and technical operations of its web site and product and service offerings and all related equipment, and the accuracy and propriety of related materials. Additionally, Partner shall (a. conduct all activities hereunder in accordance with the highest industry standards and in compliance with all applicable laws, rules, regulations and directives, including, but not limited to, those relating to e-mail marketing and "spamming"; (b) not engage in any e-mail or other marketing or promotion with respect to Volusion without the prior written consent of Volusion in each instance (c) not engage in any fax, broadcast, telemarketing or any other similar marketing methods with respect to Volusion, online or offline, without the prior written consent of Volusion in each instance, (d) not use any "malware" or "spyware" (including, but not limited to, pop-up banners that hide banners that are displayed on a web site, icons placed beside keywords found in text that if clicked will take the visitor to another web site, or other similar practices or techniques) or use any other aggressive advertising or marketing methods in any dealings relating to Volusion, (e) not bid on keywords such as Volusion or any misspellings or similar alterations thereof or any other name, mark or other identifier used by Volusion – be it separately or in combination with other keywords – or trademarks of other parties in pay-per-click (PPC) campaigns, (f) not use "Volusion" or any misspellings or similar alterations thereof or any other name, mark or other identifier used by Volusion in its domain name, including any sub-domains, (g)not make any false, misleading or disparaging representations or statements with respect to Volusion; (h) not engage in any other practices which may affect adversely the credibility or reputation of Volusion, including but not limited to, using any web site in any manner, or having any content on any web site, that promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age and/or any illegal activities or that violates any intellectual property or other proprietary rights of any third party; (i) comply with all marking requirements, including but not limited to patent, copyright, trademark, and confidentiality notices, issued by Volusion from time to time; (j) ensure that its personnel are knowledgeable regarding the proper demonstration, use, and sale of the Volusion products or services associated with the relevant Program(s) as well as the relevant specifications, features and advantages o. such products and services, and that its personnel comply with any quality standards regarding sales, service, and support that Volusion may make available to Partner from time to time; (k) refrain from, and refrain from allowing or authorizing others to discover or attempt to discover any otherwise confidential or concealed portion of Volusion's products or services by any means whatsoever, including without limitation any attempt to reverse engineer, reverse compile, disassemble, other than in a manner specifically allowed by applicable law notwithstanding any contractual restriction; (l) immediately forward to Volusion all information concerning any complaints, suspected defects, loss or damage claims, or security problems that may come to Partner's attention; and (m) not engage in any marketing or promotional activity related to Volusion in any unauthorized area, location, territory or jurisdiction, as defined by Volusion, in its sole discretion, from time to time. Partner shall not represent themselves, their employees, or agents as "Volusion Experts" or as being in anyway endorsed, authorized or affiliated with Volusion except as expressly agreed by Volusion in writing, such permission may be immediately revoked at Volusion’s sole option.
During the term of this Agreement, each party grants to the other party a limited, non-exclusive, non-transferable, revocable right to display its marks and logos solely to market and promote the relationship contemplated by this Agreement. Either party may revoke the foregoing license at any time by giving the other party written notice, such rights to be terminated in their entirety upon receipt of notice. Unless revoked sooner in accordance with the immediately preceding sentence, the foregoing license terminates automatically upon the effective date of the expiration or termination of this Agreement. Nothing in this Agreement confers in it any right of ownership in any marks or logos of the other party and all use thereof inures to the benefit of such other party (or its licensors). All software, web sites, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, information or materials and any additional intellectual or other property developed by or on behalf of Volusion in connection with the Program(s), together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein or appurtenant thereto shall, as between Volusion and Partner, be and remain the sole and exclusive property of Volusion.
The term of this Agreement begins on the Effective Date and ends immediately when terminated by either party in accordance with the provisions of this Section. Unless otherwise expressly provided in the applicable Exhibit, either party may terminate this Agreement for any reason by providing the other party with 7 days prior notice. In the event of a material breach of this Agreement, Volusion may terminate this Agreement immediately upon notice to Partner. Upon termination (i) all rights granted to Partner hereunder immediately cease upon termination, (ii) each party must promptly remove all links to one another's web sites and cease using all marketing materials, confidential information and any other information or materials belonging to the other party or otherwise related to the Program, and (iii) Volusion may take any and all actions necessary to disable Partner's participation in the Program(s). Provisions which by their nature should survive termination or expiration in order to be given full effect will survive in accordance with their respective terms and conditions.
All information (including, without limitation, the terms of this Agreement, business and financial information, source code, object code, any other software programs, product designs, know-how, techniques, processes, algorithms, customer and vendor information, information concerning research or development and pricing and sales information) concerning any aspect of the Program(s) or Volusion and any information of a third party which may be disclosed in the course of the parties' relationship shall be kept secret and strictly confidential by Partner. Partner shall take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or unauthorized use of any such information. Partner shall not use such information, directly or indirectly, for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known to the public and may be rightfully obtained through a source or sources other than Volusion without breach of any confidentiality obligations. Notwithstanding the foregoing, confidential information may be disclosed to accountants or attorneys on a confidential basis, or as required pursuant to a subpoena issued by any court or governmental authority or otherwise required by applicable law, rule, regulation, or legal process. In the event that a court (or other authority with power to do so) orders Partner to disclose any confidential information, Partner shall give Volusion immediate notice of such order.
During the term of the Agreement and for a period of one year after such term, Partner shall not, directly or indirectly, individually or on behalf of any other person or entity, hire, offer to hire, divert, entice away, solicit or in any other manner assist, encourage, or persuade, or attempt to do any of the foregoing, any current officer, employee, consultant or contractor of Volusion to terminate his or her relationship with Volusion, nor shall it hire, offer to hire or solicit the services of any former officer, employee, consultant or contractor whose relationship with Volusion has been terminated for less than six months; provided, however, that Partner shall not be in breach of this provision to the extent that it can show by written records that any such person responds to a general advertisement placed in connection with an open position. Partner further agrees that it will not directly solicit Volusion customers.
The parties to this Agreement are independent contractors and nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties or imposes any liability attributable to such a relationship upon either party. This Agreement does not grant either party any right, power or authority to enter into any agreement for, or on behalf of, or to create, assume or incur any obligation or liability of, or to otherwise bind, the other party authority to any obligations on behalf of or in the name of the other. Notwithstanding anything to the contrary, nothing in this Agreement is intended to restrict or prohibit Volusion from marketing or selling any products or services to any actual or potential customers o. Partner, even if such products or services are similar to or competitive with one or more of the products or services marketed or sold by Partner in connection the Program. Partner understands and specifically acknowledges that Volusion may, directly or indirectly, market or sell, various products or services that are similar to or competitive with one or more of the products or services marketed or sold by Partner in connection the Program(s)and that Volusion may, at any time during or after the term of this Agreement, enter into relationships or arrangements with various third parties on terms that may be similar to, or materially different from, those contained in this Agreement.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, VOLUSION MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY ASPECT OF ITS PERFORMANCE HEREUNDER, THE PROGRAM(S) OR ANY VOLUSION PRODUCTS OR SERVICES, AND VOLUSION EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR TRADE USAGE. PARTNER UNDERSTANDS AND ACKNOWLEDGES THAT THE PROGRAM(S) AND THE VOLUSION PRODUCTS OR SERVICES MAY NOT SATISFY THE REQUIREMENTS OR IT OR ANY THIRD PARTY. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, VOLUSION MAKES NO REPRESENTATION OR WARRANTY THAT ANY ASPECT OF ITS PERFORMANCE HEREUNDER, OR THE PROGRAM(S) WILL BE UNINTERRUPTED OR ERROR FREE, AND VOLUSION WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, VOLUSION SHALL HAVE NO LIABILITY WITH RESPECT TO ANY ASPECT OF ITS PERFORMANCE HEREUNDER, THE PROGRAM(S), ANY VOLUSION PRODUCTS OR SERVICES, OR OTHERWISE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS, OR DATA) EVEN IF VOLUSION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, VOLUSION'S LIABILITY UNDER THIS AGREEMENT FOR ANY REASON SHALL BE LIMITED TO THE AMOUNTS PAID TO VOLUSION BY PARTNER (IF ANY) DURING THE SIX MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, MISREPRESENTATION, STRICT LIABILITY, NEGLIGENCE, AND OTHER TORTS.
Partner shall indemnify, defend and hold harmless Volusion, its licensors, licensees and contractors, and their respective directors, officers, employees, agents, and affiliates, from and against any and all claims, causes of action, demands, obligations, lawsuits, liabilities, damages, fines, penalties, judgments, settlements, costs, expenses (including reasonable attorneys' fees and disbursements) or other losses of any kind or nature whatsoever (any and all of the foregoing hereinafter referred to as "losses") insofar as such losses arise out of or are based on: (i) any claim that use of or of any marks, logos, software or other materials provided by Partner, infringes on any trademark, copyright, patent, trade secret or other intellectual property or proprietary right of any third party; (ii) any failure or breach of any representation, warranty, covenant, obligation or agreement made herein or to any third party; (iii) any misuse of any marketing materials or the Volusion Marks; (iv) any claim related to Partner's web site, including, without limitation, any content therein not specifically provided by Volusion; or (v) any gross negligence or willful misconduct on the part of Partner or any of Partner's employees, agents or contractors. Partner shall promptly inform Volusion of any information known to Partner that could reasonably be expected to lead to a claim, demand or liability of or against Volusion by any third party.
Any notice under this Agreement to Partner will be sent to the email address on file with Volusion. It is Partner's responsibility to keep such email address up to date. Any notice to Volusion shall be made by email to email@example.com or via postal mail, receipt requested, to Volusion's corporate address.
This Agreement is governed by and shall be construed and enforced in accordance with the laws of the State of Texas and applicable federal laws of the United States of America, without regard to any choice or conflict or law principles that would result in the application of the law of any other jurisdiction. Jurisdiction and venue for all disputes hereunder is limited to the state and federal courts located within Travis County, Texas and the parties hereby irrevocably consent to and waive any objections with respect to such jurisdiction and venue. If either party brings any action against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorneys' fees and expenses actually incurred by reason of such action. Volusion may sell, transfer, assign or otherwise dispose of any or all of its rights or obligations under this Agreement, in whole or in part, at any time and from time to time without notice to or the consent of Partner. Partner may not sell, transfer, assign or otherwise dispose of any or all of its rights or obligations under this Agreement, in whole or in part, without the prior written consent of Volusion. Subject to that restriction, this Agreement is binding upon, and inures to the benefit of, the parties and their respective permitted successors and assigns. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any of its rights under this Agreement for a breach thereof shall not be deemed to be a waiver or relinquishment of such party's right to assert or rely upon any such provision or right in that or any other instance or breach; rather, the same shall be and remain in full force and effect. Each waiver must be set forth in a written instrument signed by the waiving party. Unless otherwise expressly provided in this Agreement, the rights and remedies available to the parties hereunder are cumulative and in addition to all other rights and remedies available to the parties under applicable law or at equity. If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect, and the invalid, illegal or unenforceable provision will be replaced by a valid, legal and enforceable provision that best represents the intent of the Parties. The headings hereof are descriptive only and not to be construed in interpreting the provisions hereof. Neither party is relying on any representation, guarantee or statement other than as expressly set forth in this Agreement. This Agreement constitutes the full and complete understanding between the parties and cancels and supersedes all previous or contemporaneous negotiations, proposals, representations, guarantees, statements, understandings, agreements and contracts whether written or oral, between the parties relating to the subject matter of this Agreement. Volusion is not bound by, and it specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by Partner in any correspondence or other document, unless Volusion specifically agrees to such provision in writing signed by an authorized representative. This Agreement shall be construed as to its fair meaning and not strictly for or against either party. Each party acknowledges that it has read this Agreement, including the exhibits attached hereto, in its entirety and has independently evaluated the desirability of participating in the Program(s).
This Section sets forth specific terms for a Partner (to participate Volusion's "Referral Partner" Program (sometimes referred to as the "Referral Program"). If Partner participates in Volusion's Referral Partner Program, Partner agrees to the following terms and conditions
E. Referral Fees. Volusion shall pay Partner the fees agreed upon by the parties (the "Referral Fees") based on recurring monthly subscription revenue collected by Volusion from Referral Customers for the purchase of Product during the Referral Program Term as a direct result of Partner's promotion of such Product under the Referral Program. For avoidance of doubt, setup and other one-time fees are not included in the calculation of Referral Fees. Within thirty (30) days following the end of each calendar quarter, Volusion shall provide with a report of such subscription revenue collected from Referral Customers during such quarter accompanied by payment of accrued Referral Fees for such quarter subject to a 30-day retention period for each new Referral Customer to account for new customer cancellations. As between the parties, Volusion is solely responsible for billing and collections as well as tracking the revenue associated with Referral Customers and Volusion's good faith determinations with respect to such matters are binding on Partner.
Volusion uses commercially reasonable efforts to present accurate information but does not guarantee the availability or price of any particular product or service. Partner shall not include price information on any web site or other publicly available materials, online or offline, except as such pricing information is made available on Marketing Materials provided to Partner by Volusion. Partner will make reasonable efforts to ensure that any pricing made available on any website or other publicly available materials, online or offline, is accurate to Partner's best knowledge.
This Section sets forth specific terms for a Partner (to participate Volusion's "Value Added Resller Partner" Program (sometimes referred to as the "VAR Program"). If Partner participates in Volusion's VAR Program, Partner agrees to the following terms and conditions.