Last Updated: March 2021
PLEASE READ AFFILIATE PARTNER AGREEMENT (“Agreement”) CAREFULLY BEFORE MARKETING AND PROMOTING THE SERVICES OFFERED BY FLIPNODE LLC (“SUPPLIER”, AS DEFINED BELOW). BY CHECKING THE “I ACCEPT” BOX, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ORGANIZATION, COMPANY, OR ENTITY FOR WHICH YOU ACT (“Partner” or “you”) AND REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND PARTNER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT, AND YOU WILL NOT HAVE ANY RIGHT TO MARKET AND PROMOTE THE SERVICES OFFERED BY SUPPLIER ACCORDING TO HEREIN TERMS. REGISTRATION BY “BOTS” OR OTHER AUTOMATED METHODS ARE NOT PERMITTED. SUPPLIER’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THIS AGREEMENT IS CONSIDERED AN OFFER BY SUPPLIER, ACCEPTANCE IS EXPRESSLY LIMITED TO THIS AGREEMENT.
In this Agreement the following capitalized terms shall have the respective meaning specified below (unless the context clearly states otherwise):
“Affiliate” means any entity that, directly or indirectly, controls, is under common control with, or is controlled by a party. For this purpose, “control” means the power to direct or cause the direction of the management or policies of such entity, whether through beneficial ownership of voting securities, by contract or otherwise.
“Partner ” means an entity that represents, promotes, markets and makes introductions of the Flipnode Services (as defined below) to potential unaffiliated third-party Customers either directly or indirectly (eg. via introduced resellers), subject to the terms and conditions of this Agreement.
“Customer” means an unaffiliated individual and/or entity that will use (for internal business purposes and not for resale) the Services subject to the herein terms.
“Data Controller” has the meaning ascribed to it in the DPA.
“Data Processing Addendum” or “DPA” means a data processing agreement compliant to requirements of Data Protection Laws and Regulations (including GDPR and CCPA) entered into between Flipnode and Customer as an integral part of the Customer Services Agreement (as set out at https://www.yodeck.com/dpa). It is explicitly agreed, that with respect to the DPA, the term Flipnode shall also include its affiliate entities, as defined therein.
“Data Protection Laws and Regulations” has the meaning ascribed to it in the DPA.
“Documentation” means the Flipnode manuals, publications and other materials that accompany the Services, as well as updates to such materials.
“Commission” means the percentage of the Flipnode Services sales revenue due to Partner, for sales generated as a result of Partner induced Services Referral.
“Intellectual Property Rights” shall mean all patents, designs, copyrights, trademarks, trade secrets, source codes, software, know-how, goodwill and all other categories of industrial and intellectual property rights, whether registered or not, throughout the world.
“Marketing Materials” means any promotional materials, product data sheets, advertising and press releases that Flipnode may supply to the Partner from time to time.
“Net Collected Subscription revenue “means the subscription fees actually collected and received by Flipnode from a Referred Customer on an invoice for the SaaS Services, minus chargebacks (and associated fees), credits and refunds provided to such Referred Customer. Any invoices short paid shall not be included in the calculation of Net Collected Subscription Revenue. For avoidance of doubt, the Net Collected Subscription Revenue relates only to the fees actually received by Flipnode from the Referred Customer based on invoice for its Services and shall not relate to any other revenue source and/or other products and/or services provided by Flipnode.
“Referral Form” means the referral document for placing Partner generated orders to Flipnode, pursuant to this Agreement, and identifying the Customer and Services to be subscribed by Flipnode available at affiliates.yodeck.com
“Personal Data” has the meaning ascribed to it in the DPA.
“Price List” means the most current version of Flipnode’s published Services Price List, as maybe revised by Flipnode from time to time upon sixty (60) days prior written notification. Price List will be found at: https://www.yodeck.com/pricing . Partner is encouraged to check Flipnode’s website periodically for current pricing information. Prices and Services fees are exclusive of all federal, state, municipal, or other government excise, sales, use, value added or other taxes now in force or enacted in the future. Flipnode may change the fees for any feature of the Services, including additional fees or charges.
“Processing” has the meaning ascribed to it in the DPA.
“Referred Customer” A potential customer (a) either registered by Partner on Flipnode’s Affiliate Portal or (b) identified on a Partner induced Referral Form or (c) either registered or identified by a Partner introduced unaffiliated services reseller, and accepted by Flipnode, that engages into an applicable Services digital signage agreement with Flipnode.
“Registered Player” means the computer (e.g. Raspberry Pi), or other similar hardware devices operating on Flipnode’s software, which Customer has registered according to elected subscription plan (one subscription per Registered Player). Each Registered Player is intended to be connected to a single Customer display, screen and/or monitor (“Screen”), supported by Services, and giving opportunity to Customer to view and project Content.
“Services” means the hosted Internet or intranet accessible- digital signage solution services, under the name YODECK, that are made available by Flipnode as SaaS on a subscription term basis over a designated network login link, including all offline components via Partner induced Customer Referral Forms.
“Software” means the code version of the YODECK Services and/or any other Flipnode computer software application and to which Customer is provided access (e.g. downloadable source or object code form) as part of the Services, including any updates or new versions.
“Trademarks” means the trademarks, names and logos of Flipnode, and whether used individually or collectively, and whether registered or unregistered available at www.yodeck.com.
“Users” and/or “Authorized Users” and/or “End Users” means individuals authorized by Customers to access and use the Services, via appropriate purchased term based subscriptions and have been provided with login user identifications and passwords by Customer. Users may include Customer employees, contractors, agents or any other third party individual which Customer transacts business with.
Now therefore in consideration of promises, mutual covenants herein contained, the parties agree as follows:
Article 1 – Grant
Subject to Partner’s compliance with the terms and conditions of this Agreement, Flipnode herby grants to the Partner a non-transferable, non-exclusive, non-sublicensable right, to actively market and promote the Flipnode Services, directly or indirectly, to potential Customers. During the Term of this agreement, the Partner will make Introductions to potential clients for purposes of promoting the Services to such potential Customers. Partner accepts to actively promote, solicit orders, market and introduce the Services directly -or indirectly- to potential Customers.
The grant is subject to the following:
- The Services, as provided by Flipnode, shall be marketed and promoted by Partner to Customers .
- Prior to initial use of the Services, each Referred Customer will be required to enter into the DPA, accept and conform with Flipnode’s Terms and Conditions of the subscription Services (as set out at https://www.yodeck.com/terms-of-service), and as modified from time to time. Any Partner recommendations inconsistent with the intention of the parties as vendor and representative/consultant as expressed in this Agreement, will be deemed not to have been offered by Flipnode as part of such Terms and Conditions. Any updates to such Terms and Conditions will be made in good faith.
- Partner may not object to any decisions made by Flipnode regarding the terms or conditions of a particular relationship entered into after an Introduction.
- Flipnode will have sole discretion to enter into or not enter into an arrangement with a Referred customer.
- Flipnode will meet or conference and negotiate with a Referred Customer, after an Introduction with respect to a potential relationship, on Referred Customer suggested terms applicable to such potential relationship.
- Partner shall not make any representations to potential Customers with respect to the Services that are inconsistent with Yodeck’s Terms and Conditions, Flipnode’s marketing material and/or other literature provided by Flipnode.
Partner is not authorized to enter into contracts or agreements on behalf of Flipnode or to otherwise create obligations to third parties.
Agreement is not exclusive to Partner and Flipnode reserves the unrestricted right to sell, license, market and distribute the Services or to grant to others pertinent rights thereof.
Article 2 – Partner
Partner will promote, market and introduce the Services to potential Customers in accordance with this Agreement and earn Commission for Referred Customers as described herein.
In the event of breach of this Agreement by the Partner, Flipnode reserves the right to:
- Terminate henceforth Partner’s right to promote, market and introduce the Services
Unless sooner terminated under the provisions of the herein Agreement, Flipnode will host and maintain Partner’s portal -via which Services will be marketed, promoted and introduced- for the term of this Agreement.
Registration. Flipnode will provide Partner with access to an affiliate portal and Partner must enable each potential customer to register through the affiliate portal, by providing to such potential customers an online link through which they can register for using the Services. Each potential customer will be required to provide any information requested by Flipnode, such as the first and last name of the contact, email address, company name, Registered Player subscriptions, in order to complete the registration process. Flipnode reserves the right to change the process described herein upon notice to Partner.
Article 3 – Restrictions
Partner shall not:
- Modify, alter, adapt, copy, translate, perform and display or create derivative works based on the Software, YODECK application or the Services or proceed to any action that may be properly characterized as copyright infringement by the applicable law.
- Decompile, reverse engineer, disassemble or otherwise attempt to obtain the source code for YODECK application.
- Merge or bundle the Software – YODECK application- with other software
- Sell, license, lease, publish, display (publicly or otherwise), distribute or otherwise transfer or by any means make available –either directly or via another reseller- to a third party the Services.
Article 4- Partner’s obligations, representations and warranties
Partner shall use its best efforts to actively promote and facilitate the Services and maintain a fully qualified organization in order to fulfill its responsibilities.
The Partner will not:
- Pledge the credit of the Flipnode, enter into any compromise with Customers or otherwise incur any obligation on the Flipnode’s behalf except with the Flipnode’s explicit written consent.
- Make any statement or give any warranty or guarantee in respect of the Services without Flipnode’s prior written consent.
- Provide false or misleading representations or warranties to Customers
Partner’s representatives may be required from time to time to attend training sessions with Flipnode’s support team for every new release and upcoming features.
Partner may not appoint any resellers, agents, dealers, distributors or other third parties to distribute the Services.
Partner will bear all costs and expenses incurred by it with respect to the performance of its obligations under this Agreement.
Partner represents, warrants and covenants that Partner (i) possess full power and authority to enter into this Agreement, (ii) has the proper skill, training and background to perform the services in a competent and professional manner; (iii) will use due diligence in safeguarding the interests of Flipnode in accordance with this Agreement and any policies and procedures provided to Partner by Flipnode; (iv) will comply with all applicable laws, rules, regulations, orders of any governmental (including any regulatory or quasi-regulatory) agency, and will not violate or contravene the terms of any of Flipnode’s contracts and (v) there is no other agreement in force between either Partner or any Partner’s Affiliate and Flipnode, pursuant to which Partner is granted the right to act as an Authorized Reseller or a White Label Partner of Flipnode or in any other similar capacity in connection with Flipnode.
Article 5 – Commission
In consideration for the Partner Services under this Agreement, and subject to the terms and conditions, during the term of this Agreement Flipnode shall pay a Partner commission, on a twenty percent (20%) fixed percentage amount on the Net Collected Subscription Revenue for each Referred Customer according to Price List.
The payable commission by Flipnode to the Partner for each received Referred Customer invoiced Services amount, will be calculated according to the Price List less any applicable discount. (and as such discount may be revised from time to time upon Flipnode’s discretion).
The commission shall be considered complete consideration for all Referrals made during the Term.
Payment of the commission to Partner shall be made in accordance with the herein terms and conditions by wire transfer or other immediately available funds within thirty (30) days after the end of the calendar month in which Flipnode receives payment from Referred Customer. Subject to herein terms and conditions, Commissions will be initiated by Flipnode to Partner provided that aggregate – Commission amount exceeds $300,00 (Commission trigger amount). In no event may Flipnode perform more than one (1) Commission payout to Partner per each calendar month.
Partner shall be responsible for any and all income and other taxes applicable to it in connection with its receipt of Compensation pursuant hereto and as an independent contractor of the Flipnode.
In the event of a chargeback (and associated fees), credits and refunds provided to a Referred Customer, Partner acknowledges and agrees that Flipnode may deduct the applicable portion of amounts from Partner’s subsequent Commission payments. In the event no further Commission payments are due to Partner, then Partner shall promptly submit payment to Flipnode for any chargebacks (and associated fees), credits and refunds upon Flipnode’s request. Notwithstanding anything herein to the contrary, Commission shall be “earned” only if (a) Partner complies with the process described herein, (b) Flipnode receives full payment from such Referred Customer for its Services; and (c) Partner is not in breach of this Agreement.
Flipnode will not be responsible for any expenses of Partner in the course of the performance of its obligations hereunder unless such expenses have been previously explicitly approved in writing by the Flipnode.
Article 6 – Ownership of intellectual property
Flipnode and its licensors (if any) retain all Intellectual Property Rights to the Services and the Software, with all its components, including the source code, documentation, appearance, structure, organization, its preparatory design material and all other elements to the Services. Partner acknowledges that Flipnode is the exclusive owner and owns all proprietary right of the Software, the Services, the Portal (including URL’s) and all intellectual property rights associated with, including software and copyrights, even if Flipnode incorporates into the Portal suggestions made by Partner. Nothing in this Agreement grants Partner any ownership right in YODECK application or the Service. Partner may not transfer for value or use the Service for any commercial purpose other than that described in this Agreement, which is to say, for promotion, introduction and marketing the Flipnode’s Services to Customers and their End Users as a hosted service via the Portal. Flipnode reserves all rights not expressly granted to Partner under this agreement.
Partner shall not use Services, the Documentation (user and technical), the Trade Marks or the marketing materials or Software except as permitted under this Agreement.
Partner shall report promptly to Flipnode any third party claim relating to the Intellectual Property Rights in the Services or any associated documentation, or in the Trade Marks that comes to the Partner’s attention, and co-operate with Flipnode in any enforcement or other protective action taken by Flipnode to protect or defend its Intellectual Property Rights of any such claim.
During the term of this Agreement, Flipnode hereby grants Partner a non-transferable, non-exclusive, limited license to use Flipnode’s (a) name, logos and/or trademarks (collectively, the “Trademarks”) and (b) brochures, marketing materials, referral links, white papers, case studies and/or other materials provided by Flipnode (collectively, the “Materials”) in accordance with this Agreement solely in relation to the performance of the referral services described herein. Partner’s use of such Trademarks and Materials shall be in accordance with Flipnode’s policies and procedures established from time to time. Partner shall not (i) attach any other trademark, logo and/or trade designation to the Services unless expressly agreed in writing by Flipnode and/or (ii) do and/or cause to be done any act and/or anything contesting and/or in any way impairing and/or reducing Flipnode’s right, title and interest in the Trademarks and/or Materials. Flipnode has the right to discontinue and/or alter the form, shape and/or artwork of the Trademarks and/or content of the Materials.
Partner acknowledges that Partner’s use of the Trademarks and/or Materials shall not create any right, title and interest, in or to the Trademarks and/or Materials and all such uses inure to the benefit of Flipnode. Flipnode reserves the right at any time to review Partner’s use of the Trademarks and/or Materials to determine if such use is in compliance with this Agreement.
In the event Flipnode desires to include Partner’s information on its referral partner website at any time during the term of this Agreement, Partner hereby grants to Flipnode a non-transferable, non-exclusive, limited license to use the logos and/or trademarks provided by Partner on such referral partner website.
Article 7- Trademarks
Partner acknowledges that Flipnode holds all right, title and interest to the trademarks, service marks, or trade names owned, used or claimed, registered or not registered, now or in the future by Flipnode (“Trademarks”).
Partner shall be permitted to use such Trademarks as are explicitly designated by Flipnode from time to time in writing for all proper purposes in the promotion, introduction and marketing of Flipnode Services and the performance of the Partner’s duties hereunder only for so long as this Agreement is in effect provided that:
Partner’s use of any such Trademarks shall be in accordance with Flipnode’s written instructions and specific policies in effect, including, but not limited, to trademark usage and advertising policies.
The Partner includes an acknowledgement of the proprietary rights of Flipnode and will not register any intellectual property rights relating to YODECK application and the Services.
Article 8 – Personal Data & Customer Content
8.1. Certain features of the Services may permit Customers and Users to upload content to the Services, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“Customer Content”) and to publish Customer Content on the Services. Customers are solely responsible towards Flipnode for the legality, reliability, integrity, accuracy and quality of the above Customer Content. Flipnode owns all of the relationship with Customers and Users of the Portal.
8.2. It is agreed that Partner shall have no access to Customers’ Accounts whatsoever. Partner shall make best efforts to ensure the compliance of Customers and Users with applicable Data Protection Laws and Regulations. Partner acknowledges and agrees that Flipnode’s Services performance requires Flipnode to process, transmit and store personal data under the documented instructions of the Customer and as further specified in the Data Processing Addendum (“DPA”) available at this link which forms an integral part of all Flipnode Customer Services Agreements.
8.3. Flipnode may suspend or terminate the Agreement and/or Referred Customer Services Agreement and/or delinquent account Referred Customer/Users access to the Services, immediately upon receipt of any notice, which alleges that Partner or its employees or representatives and/or Customers (including Users) have used the Services for any purpose that violates any local, state, federal or law of other nations, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other criminal regulations, or privacy laws etc or (b) in material non-conformity with the limitations, restrictions and prohibitions of Flipnode’s standard Services Terms and Conditions under https://www.yodeck.com/terms-of-service (and as modified from time to time).
8.4. Flipnode and Partner hereby also mutually acknowledge and agree that each Party processes Personal Data related to the counter Party, its employees or representatives, i.e. identification and contact information, contractual data, and billing and payment information, to the extent necessary for billing and collection purposes, and as required by applicable law provisions (e.g. tax law). Flipnode and Partner shall process Personal Data as above for the term of the Agreement, unless processing after term is necessary for compliance with a legal obligation or for the establishment, exercise or defense of legal claims.
Article 9 – Confidential information
Partner understands that Flipnode has disclosed or may disclose information that is confidential or proprietary in nature, whether explicitly designated as such or not, relating to Flipnode’s business, which to the extent previously, presently or subsequently obtained by Partner is hereinafter referred to as “Confidential Information.” Confidential Information may include, but is not limited to, the following: (a) trade secrets, inventions (whether patentable or not), discoveries and improvements; (b) concepts, know-how, ideas, techniques, processes, methodologies, testing procedures, design and functional specifications, analysis and performance information, user documentation, internal documentation and the features, mode of operation and other details of products and services; (c) algorithms, formulas, specifications, modules, scripts, data, databases, software design and architecture, computer programs, source code, object code and other computer code; (d) technical or other representations, documentation, diagrams, schematics and flow charts; (e) names and expertise of directors, officers, employees and consultants; (f) names of customers, suppliers and strategic partners; and (g) technical, business, financial, marketing, customer, supplier and product development plans, schedules, forecasts, strategies and materials.
The Partner agrees: (a) to hold Confidential Information in strict confidence and to take all reasonable precautions to protect the Confidential Information (including, without limitation, all precautions it employs with respect to its most confidential materials); (b) not to divulge any Confidential Information or any information derived there from to any third party, including, but not limited to, any affiliated entity (even if owned or controlled by the Partner ); (c) to only use Confidential Information in its performance of the obligations under this Agreement; (d) not to alter or delete any proprietary legends or markings on any Confidential Information; (e) not to copy any Confidential Information without first obtaining Flipnode’s written consent; and (f) not to decompile, disassemble, reverse engineer or otherwise attempt to derive the composition or underlying information, structure or ideas of any Confidential Information that may be provided in object code form. The Partner agrees not to circulate Confidential Information within its organization except to those employees or agents of the Partner who have a legitimate “need to know” such Confidential Information and who are obligated by appropriate written agreements to keep such Confidential Information confidential in a manner no less restrictive than set forth in this Agreement. The Partner acknowledges and agrees that it is responsible and liable for such person’s compliance with such confidentiality obligations.
The Partner understands and agrees that all Confidential Information shall remain the sole property of Flipnode including, without limitation, all Intellectual Property and proprietary Rights (defined above) therein and thereto, and the Partner hereby assigns to Flipnode any ownership rights the Partner may acquire in the Confidential Information.
ARTICLE 9A -EXPORT CONTROLS
Partner acknowledges that the Services may be subject to U.S. and international export control laws and regulations. Partner agrees to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce and trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control. Partner agrees not to—directly or indirectly— export, reexport, transfer, or divert the Services to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Additionally, Partner warrants that it is (1) not located in Cuba, Iran, North Korea or Syria or the Crimea Region of the Ukraine, and (2) not a denied party as specified in the regulations listed above. This export control clause shall survive termination or cancellation of this Agreement.
Article 10 – Warranty disclaimer
Flipnode makes no representations or warranties or conditions of any kind concerning the Service, the products or their use, accuracy, function and shall not be liable in any manner for any representation or warranty or condition of any kind. Specifically, Flipnode and third parties disclaim all warranties, express, implied, or statutory, regarding the services, the software, including any warranties of merchantability, fitness for a particular purpose, title, and non-infringement. No representation or other affirmation of fact regarding the YODECK application, the Portal and the Services shall be deemed a warranty or guarantee for any purpose or give rise to any Flipnode’s liability of third parties whatsoever. Partner acknowledges that it relied on no warranties or statements other than as may be set forth herein.
Partner shall be solely responsible for any warranties for the Services given by Partner.
Article 11 – Limitation of liability
Except as provided in the indemnity section herein below, Flipnode shall not be liable to Partner or any third party for any incidental, indirect, exemplary, special or consequential damages, under any circumstances, including, but not limited to, lost profits, revenue or savings, loss of goodwill, or the loss of use of any data, even if Flipnode had been advised of, knew, or should have known, of the possibility thereof.
Under no circumstances shall Flipnode’s aggregate cumulative liability hereunder, whether in contract, tort, or otherwise, exceed the total amount of commission actually paid to Partner under this Agreement in the twelve (12) month period preceding the event or circumstance giving rise to claim. Partner acknowledges that the commission paid reflect the allocation of risk set forth in this agreement and that Flipnode would not enter into this agreement without these limitations on its liability.
Article 12 – Indemnification
Partner will indemnify, defend and hold harmless Flipnode, its officers, associates, employees, contractors and agents from and against any and all claims, damages, liabilities, losses, costs, demands and expenses (including reasonable attorneys’ fees and costs of litigation) (collectively “Claim(s)”) arising out of or relating to (a) any negligent act and/or omission of Partner relating to Partner activities in connection with this Agreement; (b) any misrepresentation by Partner related to Flipnode, its Services and/or its other products and/or services(s); (c) Partner’s breach of this Agreement; (d) Partner’s gross negligence and/or wilful acts and/or omissions; (e) any failure to comply with any applicable law, rule, regulation, order of any governmental (including any regulatory or quasi-regulatory) agency or contract;. Partner will be solely liable for any claims, warranties and/or representations made by Partner that differ from the warranties expressly provided by Flipnode. Partner will have the sole right to conduct the defense of any claim and/or action, and/or the negotiation of any settlement, in respect of a Claim; however, Flipnode may reasonably participate in such defense at its sole expense.
Article 13 – Term and Termination
13. Term. The term of this Agreement will commence on the Effective Date and will continue in effect unless terminated in accordance with this Agreement (the “Term”).
13.1 Termination for Cause. Either party shall have the right at any time, by giving notice, to terminate this Agreement without liability to the other on the occurrence of any of the following events: (a) if the other party commits a breach of any of the terms and conditions of this Agreement and such breach has not been rectified within thirty (30) days after receipt of notice to rectify served on the defaulting party by the other party; (b) if the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, is liquidated, voluntarily or otherwise, or suffers any similar action in consequence of debt; or (c) if the other party engages in illegal activities.
13.2 Termination for Convenience. Either party may terminate this Agreement any time without cause upon 90 days’ prior written notice.
13.3 Effect of Termination. Upon expiration or termination of this Agreement:
– The appointment and license grant under article 1 provided to Partner will terminate
– Partner shall immediately cease all activities related in any way to this Agreement, including, but not limited to, the marketing, representing and promoting of the Services; and
– Partner will cease to make any reference to Flipnode or the Services and will cease using the Trade Marks (including but not limited in its promotional materials) and will cease holding itself out as an affiliate partner of Flipnode or of the Services;
– Partner will promptly return to Flipnode or delete or destroy, at Flipnode’s option, all of Flipnode Confidential Information, marketing material, user manuals, source codes, Software demo version, technical documentation, etc. that is has received pursuant to this Agreement;
– Partner will immediately remove from its website all content that refers to Flipnode or the Services;
– each Party will certify to the other in writing within 30 days of such termination or expiration that such Party (as receiving Party) has returned or permanently destroyed or deleted all Confidential Information of the other Party regardless of form or medium.
– All Customers and referred partners shall remain to Flipnode
13.4 Upon termination or expiration of the Agreement, the Partner shall have no further right to promote and introduce Flipnode’s products and Services and shall immediately discontinue such action and destroy all originals and copies, including all compilations, source codes provided, translations, documentation, and partial copies/files. The Partner shall certify in writing within ten (10) days following the termination or expiration that it has complied with this paragraph.
Rights upon termination
Termination is not an exclusive remedy and is in addition to other rights or remedies that may be available.
13.5 The Partner agrees that, in the event of any termination or expiration of the Agreement, it shall have no rights to damages or indemnification of any nature, specifically including commercial severance pay, whether by way of loss or future profits, expenditures for promotion of any product, or other commitments in connection with the business and good will of the Partner. However, neither termination nor expiration will extinguish any liability of either party arising before termination or expiration of this Agreement, including without limitation for payment due. The Partner expressly waives any right or claim it may have under the laws of any jurisdiction to receive any compensation or reparations upon termination or expiration of this agreement by operation of law or otherwise for such termination or expiration.
13.6 Any termination of this Agreement (however it happens) will not affect any accrued rights or liabilities of either party, nor will it affect the coming into force or the continuance in force of any provision of this Agreement, which is expressly, or by implication, intended to come into or to continue in force on or after termination.
13.7 Survival Any provision of this Agreement which by its nature is intended to survive termination or expiration of this Agreement will continue after termination or expiration of this Agreement, including (but for greater certainty in no way limited to) any provisions related to proprietary rights, confidentiality, termination, indemnification, limitation of liability, governing law and waiver.
Article 14 – Notices
Any notice, request, instruction or other document to be given under this Agreement to any party hereunder shall be in the English language, in writing, and sent by first class mail, confirmed facsimile or major commercial rapid delivery courier service to the address specified on the Partner’s account or, to Supplier at 315 Montgomery Str, 9th Floor San Francisco, CA 94104 – USA (or such other address as may be properly specified by written notice hereunder). Email notice will be permitted by Supplier if sent to the Partner’s account email address.
Article 15- Relationship of the parties
The parties will at all times perform their respective obligations pursuant to this agreement as independent contractors. This agreement does not create any agency, partnership, joint venture, employment or franchise relationship. Furthermore, no labor relationship between Flipnode and the Partner’s employees is created hereby, the Partner shall indemnify and hold Flipnode harmless against any claim or judicial action whatsoever from any Partner employee. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in respect whatsoever.
Article 16- Entire Agreement
It is hereby declared that this Agreement constitutes the entire Agreement and contains the entire understanding between the parties hereto and with respect to the matters referenced to herein. No terms other than those expressly set out herein are deemed to be implied herein. No amendment or modification οf this Agreement shall be valid and binding unless made and confirmed in writing or otherwise signed by the parties hereto.
Article 17 – Severability
In the event of any one or more provisions of this Agreement becoming invalid or unenforceable it shall not affect any of the other provisions hereof becoming invalid and unenforceable, and such other provisions shall be deemed to remain in full force and effect.
Article 18 – Waiver
No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this agreement.
Article 19 – Counterparts
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. The Annexes to this agreement constitute an integral part hereof.
Article 20 – Authentic text
The English language text of this Agreement shall be the only authentic text.
Article 21- Force Majeure
Neither party is liable for any failure or delay in performance due to any cause beyond its control and has no obligation arising out of the abnormal use of any items, site conditions nonconforming to specifications, or any cause external to any item, including but not limited to accident, acts of God, fire or water damage, criminal conduct, neglect, acts of war, riots, strikes, lightening, electrical disturbances or other similar causes. Such events, occurrences or causes do not include inability to meet financial obligations. The time of performance hereunder is extended by a period of time lost because of such delay.
Article 22 – Assignment
The Partner may assign or transfer this Agreement in whole or part only with the prior written consent of Flipnode which consent shall not be unreasonably withheld or delayed. Upon written notification, Flipnode may assign or transfer this Agreement in whole or part and all or part of the payments to the extent that Flipnode’s obligations to the Partner are not affected.
Article 23 – Governing law, Jurisdiction
Any dispute arising hereunder shall be exclusively construed in accordance with the laws of the State of Delaware without regard to principles of conflict of laws. For the purpose of this agreement, Partner consents to the personal jurisdiction and venue of the courtσ located in the State of Delaware. If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected.
ely construed in accordance with the laws of the State of Delaware without regard to principles of conflict of laws. For the purpose of this agreement, Partner consents to the personal jurisdiction and venue of the courtσ located in the State of Delaware. If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected.