SKYDESKS, INC. TERMS OF AFFILIATE AGREEMENT
This SkyDesks Affiliate Program Agreement (the "Affiliate Agreement") sets forth the terms and conditions regarding the SkyDesks Affiliate Program (the "Program") of SkyDesks, Inc. ("SkyDesks").
BY CLICKING ON THE "APPLY" BUTTON AT THE END OF THE AFFILIATE APPLICATION YOU AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AFFILIATE AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS. THE TERM "SKYDESKS", "US", "OUR", AND "WE" REFERS COLLECTIVELY TO SKYDESKS, INC. AND SKYDESKS.COM. THE TERM "YOU" REFERS TO YOU THE AFFILIATE DESCRIBED IN THIS AGREEMENT.
1. DESCRIPTION OF SERVICE
SkyDesks is an online, cloud-based Virtual Private Server ("VPS") subscription service designed to permit individuals and companies to access and use the MetaTrader 4 Trading System, Expert Advisors, Premium Signals, Scripts, and Indicators (collectively, the "MT5 package") remotely through our SkyDesks website (the "Site") over the Internet for the purpose of online currency trading on the global foreign exchange ("FOREX") market (the "Service").
2. ENROLLMENT IN THE PROGRAM
To begin the enrollment process, you need to complete and submit the Affiliate Program Application. We will evaluate your Affiliate Application and notify you whether your application is accepted or rejected. SkyDesks may reject your Application and reserves the right to terminate this Affiliate Agreement with or without notice to you including but not limited to a determination that your Affiliate website, or email, is unsuitable for and incompatible with our Affiliate Program.
“Link” means a hyptertext and/or graphical link, to or from the Affiliate site, or an Affiliate's email, which allows a user to automatically transfer from the affiliate site, or email, to the SkyDesks site. Affiliate links may not be placed in newsgroups, unsolicited e-mail, banner networks, counters, chat rooms or guest books. Any Affiliate link must be placed in such a way that it is not misleading to any visitor, whether originated at the Affiliate site, or Affilate email, and done so with the intention of delivering users to the SkyDesks site for that Link. You acknowledge that your Affiliate Site, or email, may include SkyDesks Branding that you have no right to alter, remove or customize. You agree not to use or display the Links or the SkyDesks Branding in a manner that is defamatory, misleading, libelous, and abusive or otherwise potentially damaging to the reputation of SkyDesks, or the good will associated with the SkyDesks Branding. The term "SkyDesks Branding" means SkyDesks trade names, trademarks, service marks and or logos authorized by SkyDesks and found at SkyDesks.com.
4. AFFILIATE OBLIGATIONS AND RESTRICTIONS
You will be solely responsible for the development, operation and maintenance of your Affiliate Site, or Affiliate emails, and for all materials that appear on your Affiliate site, or Affiliate emails, including, but not limited to: (a) the accuracy and appropriateness of materials posted on your Affiliate Site; or Affiliate emails, and (b) ensuring the materials posted on your Affiliate Site, or Affiliate emails, do not violate or otherwise infringe upon the rights of any third party. You agree to refrain from the following: (a) purchasing and/or using any domain name that incorporates any portion of the SkyDesks Branding; (b) purchasing any search engine keywords that outrank and/or outbid any of the SkyDesks Branding; (c) identifying your Affiliate Site as an "official site" (however, "affiliate" or "authorized affiliate" are permitted uses); (d) changing any SkyDesk's price and/or offering any additional Affiliate discount or rebate on any SkyDesks product or service; and (e) Direct Linking. You hereby agree to indemnify, defend and hold harmless SkyDesks, its shareholders, officers, directors, employees, agents, partners, successors and assigns, from and against any and all claims, losses, liabilities, damages or expenses (including, without limitation, attorneys fees) arising from or related to the development, operation, maintenance and contents of your Affiliate Site, or .Affiliate emails.
For all referrals through your links SkyDesks will collect the monthly subscription fees from subscribers to our Service and within thirty (30) days after receipt of such fees from SkyDesks subscribers pay commission fees to you. Commission in the amount of ten percent (10%).will be paid for Basic Subscriptions. Commissions of 33% will be paid for all Premium Subscriptions, with the exception of Forex Expert Advisor (FAE) for which commissions of 10% will be paid.
6. AFFILIATE LICENSE
SkyDesks hereby grants you an Affiliate License to access and use the SkyDesks Site and SkyDesks Branding on a limited, non-exclusive, royalty-free non-transferable worldwide license, without the right to sublicense, to use, reproduce, display solely in the form provided by SkyDesks to the limited extent necessary to fulfill Affiliate's obligations under this Affiliate Agreement. You are only entitled to use the SkyDesks Site and SkyDesks Branding to the extent you are a member of good standing in the SkyDesks Affiliate Program.
7. RESERVATION OF SKYDESK’S RIGHTS
SkyDesks reserves all rights other than those expressly granted in this Agreement, and non licenses are granted except as expressly set forth herein. SkyDesks retains all right, title in and to the SkyDesks Branding and the SkyDesks Site, together with all Intellectual Property Rights thereto. The term "Intellectual Property Rights" means all rights in and to trade secrets, patents, copyrights, trademarks, know how, as well as moral rights and similar rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to any of the foregoing.
8. RESERVATION OF AFFILIATE RIGHTS
Affiliate reserves all rights other than those expressly granted in this Affiliate Agreement, and no licenses are granted except as expressly set forth herein. Affiliate retains all right, title, and interest in Affiliate Branding and Affiliate Site, together with all Intellectual Property Rights thereto. The term "Affiliate Branding" means Affiliate trade names, trademarks, service marks and/or logo used in connection with the Affiliate.
9. LICENSE TO SKYDESKS
Affiliate hereby grants to SkyDesks a limited, non-exclusive, royalty-free, non-transferable, worldwide license, without the right to sublicense, to use, reproduce, publicly perform, distribute and display Affiliate's related documentation and Affiliate Branding in connection with and as part of the SkyDesk Service.
10. USER INFORMATION
SkyDesks will own all right, title and interest in and to all information that is created or collected in the operation of the SkyDesks Site including, without limitation any contact information, collected from any subscriber to the SkyDesks Service.
This Affiliate Agreement will become effective on the Effective Date and ends when terminated by either party in accordance with the provisions in this Affiliate Agreement. This Affiliate Agreement may be terminated by (i) by SkyDesks, with or without cause, and with or without notice to Affiliate and (ii) by Affiliate with or without cause and notifying SkyDesks of its intention to terminate. Upon termination SkyDesks will remove all Affiliate Branding, Affiliate Links and references to the Affiliate on the SkyDesks site, and pay Affiliate any accrued and unpaid fees due Affiliate under this Agreement. Upon termination Affiliate will remove any Affiliate Links and any SkyDesks Branding and references to SkyDesks from the Affiliate Site.
At any time and in SkyDesk's sole discretion, SkyDesks may modify any of the terms and conditions contained in this Affiliate Agreement by (i) posting a change notice or a new agreement on www.skydesks.com and/or (ii) e-mailing a revised Affiliate agreement to you. If any modification is unacceptable to you, your only recourse as an Affiliate is to terminate this Agreement. Your continued participation in our Affiliate Program following our posting of a change notice or new agreement at www.skydesks.com or your receipt of a revised affiliate agreement will constitute acceptance of the modification.
Except for the right of a Party to apply to a court for a temporary restraining order, preliminary injunction or other equitable relief, any controversy or claim arising out of or relating to this Affiliate Agreement that cannot be resolved through negotiation will be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. If the Parties cannot agree on a single arbitrator, the arbitrator will be selected by the American Arbitration Association. All arbitration proceedings will occur in English and will be held in Leesburg, Virginia, USA. The Parties agree that any dispute resolution proceeding will be conducted on an individual basis and not as a class or representation action. Neither you nor SkyDesks shall be a member of a class, consolidated or representative action or proceeding. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction. The cost of the arbitration shall be borne equally by the Parties. Neither Party nor the arbitrator may disclose the existence or results of any arbitration hereunder. The authority of the arbitrator to award damages in any event is and shall be limited by this Affiliate Agreement.
If the person entering into this Affiliate Agreement is acting on behalf of his or her company, such person represents to SkyDesks that he or she has all requisite corporate power and authority to enter into this Agreement on behalf of Affiliate, that this Agreement has been duly authorized by Affiliate and that this Agreement will constitute the legal, valid and binding obligation of Affiliate. Such person hereby agrees to indemnify and hold SkyDesks harmless from any and all claims, damages and expenses (including, without limitation, attorneys’ fees) arising from any breach of this Agreement. If the person entering into this Affiliate Agreement is acting on one’s behalf, such person represents to SkyDesks he or she is an individual, 18 years of age or older, who is a citizen or permanent resident and is not a citizen or permanent resident of Iran, Iraq, North Korea, Libya, Sudan or Syria.
16. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SKYDESKS AND ITS OTHER AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF SKYDESKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OR THE INABILITY TO USE THE SITE OR SERVICE.
17. GENERAL INFORMATION
1. Entire Agreement. This Affiliate Agreement constitutes the entire agreement between you and SkyDesks superseding any prior agreements between you and SkyDesks with respect to the Service.
2. Choice of Law and Forum. This Affiliate Agreement and the relationship between you and SkyDesks shall be governed by the laws of the Commonwealth of Virginia without regard to its conflict of law provisions. You agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Loudoun, Virginia.
3. Waiver and Severability of Terms: The failure of SkyDesks to exercise or enforce any right or provision of this Affiliate Agreement shall not constitute a waiver of such right or provision. If any provision of this Affiliate Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Affiliate Agreement remain in full force and effect.