TERMS OF SERVICE FOR SHARED HOSTING REFERRAL PROGRAM
Effective November 1, 2005
1. Referral Program
a. These Referral Program Terms and Conditions govern the respective rights and obligations of Brinkster Communications Corporation ("Brinkster") and the program participant (the "Referrer"). These Terms and Conditions apply to the Referrer's participation in the Brinkster Referral Program (the "Referral Program") whereby Referrer will refer to Brinkster, potential customers ("Prospects").
b. Brinkster may modify the content, terms and conditions of this Referral Program from time to time. Referrer should re-visit Brinkster's Web site from time to time to stay abreast of such changes. Any change to this Referral Program will be effective immediately when posted to Brinkster's Web site.
c. Referrer acknowledges that Referrer has read and agrees to be bound by the following Referral Program Terms and Conditions as well as the Brinkster Shared Hosting Terms of Service, which are located at http://www.brinkster.com/AboutUs/Legal.aspx
2. Referrals
a. Referrer will actively refer Prospects to Brinkster. A Successful Referral is one which satisfies the following criteria:
i. Referral Process: After Referrer either 1) completes the link referral form, and a link is placed on their website which connects the Prospect to Brinkster’s website or 2) Prospect utilizes Referrer’s account name when signing up in the referral entry. The Prospect is then contacted by Brinkster, with the Prospect ordering the Brinkster Shared Service. The Prospect then maintains the Brinkster Shared Service ordered for a minimum of ninety-one (91) consecutive calendar days, with a payment for at least three (3) full months of the Shared Service;
ii. In order for Referrer to be eligible for the Credit and/or
Payment, the Prospect must have either utilized your user name when completing the sign-up process
or be linked using the “Get Link” option from your website; and
iii. The Service is ordered in the Prospect's name and contains complete, accurate and current billing and contact information specific to the Prospect and cannot match any other contact information in Brinkster's customer database; and
iv. No Credit or Payment will be made for self-referrals or plans Referrer purchases for Referrer's own use; and
v. The Prospect is not a previous customer of Brinkster who received Services from Brinkster during the six (6) months prior to the new term (as defined by the Brinkster Universal Terms of Service); and
vi. The Prospect is not a previous customer of Brinkster's, whose Services were terminated by Brinkster for non-payment or other violation of Brinkster's standard terms and conditions.
b. All Prospect information will expire sixty (60) days after being submitted. Brinkster in its sole discretion may accept or reject any Prospect.
c. All Prospect Orders are subject to credit approval, availability, and other Brinkster terms and conditions available at http://www.brinkster.com/AboutUs/Legal.aspx.
d. A Prospect referral is considered null and void if the Prospect violates the Brinkster Universal Terms of Service.
e. The Prospect is only considered valid when they sign up and pay for services at the regular price. A referral is not valid on promotional sign ups.
f. The following shared web hosting packages are not eligible for referral credit: Mini Web Hosting Package, Deluxe Web Hosting Package. At times service plans and packages might be offered via third-party services or external sites and are not eligible for additional discounts or referral credit.
3. Compensation and Benefits.
a. Shared Commission. If electing the Shared Commission option when signing up, Referrer shall receive a cash payment or web hosting credit for each Successful Shared Referral as follows:
i. Referrer shall receive either:(1.) Fifty (50)% of initial signup fee for hosting for each Successful Shared Referral that is received by Brinkster, or (2.) if choosing the credit option, an equal amount will be credited to your account of the initial signup fee for each Successful Shared Referral that is received by Brinkster, (hereinafter the cash payment or web hosting credit will be referred to as the "Shared Commission").
ii. Referrer shall bear all taxes, duties, levies, and other similar charges (and any related interest and penalties), however designated or imposed on it as a result of the existence or operation of the Credits or Referral Program Agreement, including any income, sales, or use tax on profits which may be levied against it.
iii. Referrer must be a Brinkster customer in good standing to receive the Shared Commission; no Commission will be applied to accounts that are past-due or for accounts that are cancelled before the conditions for payment of the Shared Commission are met. Upon cancellation of Referrer's account, any outstanding or previously accrued Shared Commissions will be forfeited. Commissions will be applied against purchases or renewals for which payment is due after the date the Commission is applied. Commissions will not be applied against past due balances.
iv. Commissions will not be paid for accounts established through any channels other than as described herein. The Shared Commission cash payment will be mailed to Referrer at the address listed on the Referral Form within thirty (30) days following the month in which the conditions for payment of the Payment as described herein are met. The Shared Commission web hosting credit will be credited to the Referrer’s account after the conditions for the credit as described herein are met.
v. Within ten (10) days following submission of a Prospect, Referrer must complete and submit to Brinkster a completed IRS Form W-9. The Form W-9 is located at: W-9 Form and, once completed, should be faxed to Brinkster at 602-264-3939 with the Referrer’s account name. If any information submitted by the Referrer on the W-9 is incomplete, incorrect or inaccurate, payments due Referrer may be delayed or withheld at Brinkster's sole discretion. It is the Referrer's responsibility to assure that Brinkster has a complete and accurate Form W-9 on file.
vi. A shared commission for any prospect electing a promotionally priced account will be considered null and void, with the account not being credited or paid out to the Referrer for the referral.
4. Referrer's Representations and Warranties.
Referrer hereby represents and warrants to Brinkster, and agrees that during the Term of the Agreement Referrer will ensure that: (a) The information submitted by Referrer as part of the Referral Program is true and correct in all material respects; (b) Referrer will comply with all applicable laws, rules and regulations in the conduct of its business; (c) Referrer will not make any representations concerning the Services except those that have been approved or published by Brinkster; (d) Referrer will not distribute any documents or materials describing the Services except those that have been approved or published by Brinkster; and (e) Referrer has obtained from Prospect's any and all approvals and permissions that are necessary for Referrer to submit the Prospect's information to Brinkster.
5. Brinkster's Terms of Service.
Referrer will abide by and utilize, the Referral Program, Brinkster's other products and services, and the Referrer Web site, only in accordance with the Terms of Service (the "Terms of Service") that Brinkster posts on its Web site, and such Terms of Service for Shared Hosting that may be changed by Brinkster from time to time. The Terms of Services for Shared Hosting are hereby incorporated herein and made a part hereof by this reference. Referrer shall familiarize itself with the Terms of Services for all plans and periodically access Brinkster's Web site to determine if Brinkster has made any changes thereto.
6. Referrer's Responsibilities.
a. Referrer will conduct itself in a professional manner and will maintain a reputation for fair dealing and exemplary service among its customers or clients. Referrer will not make any statement, or take any action, that could reasonably be expected to reflect poorly on Brinkster or on the reputation of Brinkster or its products and services.
b. Referrer will cause its personnel who are responsible for Referrer's activities under this Agreement to remain well-informed concerning Brinkster's products and services. Among other things, Referrer will cause such personnel to review Brinkster's web site occasionally to ensure that such personnel are reasonably familiar with Brinkster's product offerings, pricing, promotions and service terms and conditions.
c. All web sites and newsletters must meet the following criteria for this
Referral program for links to be allowed on Referral web pages:
i. Be content-based, not simply a list of links or advertisements, nor can the site be centered around making money off of our Advertisers
ii. Receive a minimum of unique page views per month
iii. Be fully functional at all levels; no "under construction" sites or sections
iv. Spawning process pop-ups and exit pop-ups are prohibited for click approved affiliates
v. The content of the web site and/or newsletter may not contain adult content or link from, or to, any materials including the following:
a. Explicit, vulgar or obscene language
b. Posting or referencing of sexually explicit images or other offensive content
c. Promotion of adult services, such as phone sex or escort services
d. The content of the web site and/or newsletter cannot infringe on any personal, intellectual property or copyrights including but not limited to:
e. Racial, ethnic, political, hate-mongering or otherwise objectionable content
f. Investment, money-making opportunities or advice not permitted under law
g Gratuitous violence or profanity
h. Material that defames, abuses, or threatens physical harm to others or to you
i. Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.
j. Software Pirating (e.g., Warez, Hotline)
k. Hacking , Phreaking or Phishing.
l. Any illegal activity whatsoever
m. Any questionable or controversial subject matter
n. Any spoofing, redirecting, or trafficking from adult-related web sites in an effort to gain traffic
vi. You cannot place our advertisements into your framed environment, unless approved by Brinkster in writing.
7. Brinkster Intellectual Property.
a. Brinkster's trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Brinkster. Except as otherwise provided in the Agreement, Referrer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Brinkster.
b. Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Referrer sends to Brinkster relating to the Services will be treated as being non-confidential and non-proprietary. Brinkster may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.
8. Limited Warranty.
a. Brinkster represents and warrants to Referrer that Brinkster will provide Services hereunder in the same manner as Brinkster provides Services to other customers at the same level and type of service.
b. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, BRINKSTER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND BRINKSTER HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO REFERRER HEREUNDER IS PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. BRINKSTER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
9. Limitation of Liability.
a. IN NO EVENT WILL BRINKSTER'S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER, OR THIS AGREEMENT, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE DISCOUNT PAID BY BRINKSTER TO REFERRER HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
b. BRINKSTER CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. BRINKSTER WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
c. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, OR (EXCEPT AS PROVIDED IN SECTIONS 10 AND 11) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
d. The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 9(c) shall not apply to liability arising on account of a party's breach of Section 11 or to Referrer's indemnification obligations under Section 10.
10. Indemnification of Brinkster.
Referrer shall defend, indemnify and hold harmless Brinkster, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the "Brinkster Indemnitees"), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys' fees) which any of the Brinkster Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Referrer's breach of any representation, warranty, or covenant contained in this Agreement, (ii) services provided by the Referrer to any Brinkster customer, and (iii) claims or actions of third parties alleging unfair or deceptive trade practices or false advertising in connection with statements or claims made by Referrer pertaining to Brinkster's Services.
11. Confidentiality; Non-Solicitation.
a. "Proprietary Information" means all technical, business and other information of a party (i) that is not generally known to the public, (ii) that derives value, economic or otherwise, from not being generally known to the public or to other Persons who can obtain value from its disclosure or use, and (iii) which information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof.
b. Each party will not, without the prior written consent of the other party, use or disclose to any Person any Proprietary Information of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder. Subject to Section 11(b), each party will (i) treat the Proprietary Information of the other party as secret and confidential, (ii) limit access to the Proprietary Information of the party to those of its employees who require it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Proprietary Information of the other party to any other Person without the prior written consent of the other party.
c. Notwithstanding Section 11(a), the following shall not be considered Proprietary Information: (i) any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party, (iv) any information that is disclosed to the receiving party without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.
d. Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Proprietary Information of the other party (including all copies thereof) in its possession or control.
e. During the term of this Agreement and for two years following expiration or termination of this Agreement, Referrer will not, directly or indirectly, solicit or recruit the services of any employee of Brinkster performing services under this Agreement, while such employee is employed by Brinkster and for a period of six months after such employee has left the employment of Brinkster.
12. Miscellaneous.
a. Independent Contractor. Brinkster and Referrer are independent contractors and nothing contained in this Agreement places Brinkster and Referrer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
b. Governing Law; Jurisdiction. The validity and effect of this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Virginia, without regard to its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Transactions Act do not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT MUST BE BROUGHT IN A VIRGINIA STATE OR FEDERAL COURT LOCATED IN NORFOLK, VIRGINIA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
c. Mandatory Arbitration. Notwithstanding Section 12(b) above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Referral Program or the Services must be submitted by the parties to arbitration in accordance with will be resolved exclusively and finally by arbitration administered by the National Arbitration Forum (NAF) and conducted under its rules. The arbitration will be conducted before a single arbitrator, and will be limited solely to the Dispute between you and Brinkster. Any decision rendered in such arbitration proceedings will be final and binding on each of the parties, and judgment may be entered thereon in any court of competent jurisdiction. Should either party bring a Dispute in a forum other than NAF, the arbitrator may award the other party its reasonable costs and expenses, including attorneys' fees, incurred in staying or dismissing such other proceedings or in otherwise enforcing compliance with this dispute resolution provision. You understand that you would have had a right to litigate Disputes through a court, and that you have expressly and knowingly waived that right and agreed to resolve any Disputes through binding arbitration. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. Section 1, et seq. For the purposes of this section, the term "Dispute" means any dispute, controversy, or claim arising out of or relating to (i) the Terms of Use (including this agreement, the Rules of Conduct, the Privacy Policy or any other policy or practice of the Brinkster.com site), the interpretation, breach or alleged breach, termination, applicability, validity or our enforcement or application thereof; (ii) your use of the Brinkster.com site, any content available through the Brinkster.com site, or the Internet; (iii) your ability to access and/or use of the Brinkster.com site; or (iv) the purchase or use of any product, accessory, service through the use of the Brinkster.com site. Information may be obtained from the NAF on line at www.arb-forum.com , by calling 800-474-2371 or writing to P.O. Box 50191, Minneapolis, MN, 55405. Any such arbitrator must render a reasoned opinion in writing only where the amount in dispute exceeds $100,000. Any such arbitration will be held in Norfolk, Virginia. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.
d. Headings. The headings herein are for convenience only and are not part of this Agreement.
e. Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Referrer or Brinkster, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Referrer and Brinkster. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms and Conditions may be modified from time to time by Brinkster in its sole discretion, which modifications will be effective upon posting to Brinkster's web site.
f. Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
g. Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers (i) for the Referrer, Brinkster's billing address of record for Referrer, and (ii) for Brinkster, as designated on Brinkster's web site for the giving of notices. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein.
h. Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
i. Assignment; Successors. Referrer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Brinkster. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Brinkster may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Referrer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
j. Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
k. Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Brinkster's records of such execution shall be presumed accurate unless proven otherwise.
l. Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
m. No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Referrer acknowledges and agrees that Microsoft, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Referrer as if it were a party to this Agreement.
n. Government Regulations. Referrer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Referrer operates or does business.
o. Marketing. Referrer agrees that during the term of this Agreement Brinkster may publicly refer to Referrer, orally and in writing, as a referral partner of Brinkster. Any other public reference to Referrer by Brinkster requires the written consent of Referrer.
p. Telephone Monitoring. To ensure Brinkster's customers receive quality service, Brinkster randomly selects phone calls for monitoring. These calls, between Brinkster's customers and employees, are evaluated by supervisors. This is to guarantee that prompt, consistent assistance and accurate information is delivered in a professional manner.
q. International Provisions. If Referrer maintains an office outside the United States, conducts business with Persons other than U.S. citizens, or at any time offers to resell Services to any Person that is not a U.S. citizen, the following provisions will apply:
1. Referrer will comply with all laws relating to the conduct of business practices that prohibit any gratuities or inducements. Referrer acknowledges that Brinkster is subject to certain United States laws, including but not limited to the Foreign Corrupt Practices Act of 1977 and any amendments thereto, which apply to activities carried out on Brinkster's behalf outside the United States. Referrer agrees neither to take nor omit to take any action if such act or omission might cause Brinkster to be in violation of any such laws. Upon written notice from Brinkster, Referrer shall provide such information as Brinkster may reasonably consider necessary to verify compliance by Referrer with the provisions of this Section.
2. The Services may require a license for export from the U.S. Government that requires advance disclosure of the ultimate consignee and all parties to the sale, and prohibits diversion, transshipment, or re-exportation out of the United States contrary to U.S. law and regulations by any party. Referrer agrees to furnish all documentation required by the U.S. Government in connection with obtaining any required export license, and agrees that unauthorized diversion, transshipment or re-exportation of the Brinkster's Services in violation of the export license or any applicable law shall not be permitted.
r. The parties hereby exclude any application of the United Nations Convention on Contracts in the International Sale of Goods, the 1974 Convention on the Limitation Period in the International Sale of Goods, and the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.
13. Definitions. For purposes of this Agreement, the following terms have the meanings specified below:
a. "Person" means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof.
b. "Order" means the Order submitted to Brinkster for Services, whether such Order is submitted online through Brinkster's Web site, telephone, or on a written Order form.
c. "Services" means the Web hosting service provided by Brinkster in response to an Order whereby Brinkster provides specified connectivity, storage space and bandwidth for the hosting of a Customer Web site as more particularly described in the applicable Service Description. Services as used herein shall include Dedicated Services and Shared Services.
d. "Dedicated Services" means the Brinkster’s "Un Managed Level" and "Managed Dedicated" Services.
e. "Shared Services" means those Services in which Brinkster hosts multiple Web sites, each potentially having its own Internet domain name, from a single Web server. For Professionally,
f. "Service Description" means the applicable documents made available by Brinkster to describe the applicable Services at the time the Order is accepted by Brinkster.
g. "Successful Shared Referral" Means a Referral for the Brinkster Shared Services made pursuant to Section 2(a)(1)(i) and which meets the qualifications described in Section 2.