Operating Agreement
This Agreement contains the complete terms and conditions that apply to an
individual's or entity's participation in the Xxxxxx.xxx Associates Program (the
"Program"). As used in this Agreement, "we" means Xxxxxx.xxx, Inc., and "you"
means the applicant. "Site" means a World Wide Web site and, depending on the
context, refers either to Xxxxxx.xxx's site located at the URL xxx.xxxxxx.xxx,
or to the site that you will link to our site (and which you will identify in
your Program application).
1. Enrollment in the Program
-------------------------
To begin the enrollment process, you will submit a complete Program
application via our site. We will evaluate your application in good
faith and will notify you of your acceptance or rejection. We may
reject your application if we determine (in our sole discretion) that
your site is unsuitable for the Program. Unsuitable sites include those
that:
- promote sexually explicit materials
- promote violence
- promote discrimination based on race, sex, religion, nationality,
disability, sexual orientation, or age
- promote illegal activities
- include "amazon" or variations or misspellings thereof in their domain
names
- otherwise violate intellectual property rights
If we reject your application, you are welcome to reapply to the Program at any
time. You should also note that if we accept your application and your site is
thereafter determined (in our sole discretion) to be unsuitable for the Program,
we may terminate this Agreement.
2. Links on Your Site
------------------
Once you have been notified that your site has been accepted into the
Program, you may provide on your site one or more of the following
types of links to our site:
- Product Links: You may select one or more Products to list on
your site. A "Product" is any book, recorded music or video
product listed on our site under any of the "Books," "Music," or
"Video" tabs, but does not include any other type of product,
products located in any other part of our site or any products
not fulfilled by us, such as products found through our "Shop
the Web" feature. For each selected Product, you will display
on your site a short description, review, or other reference.
You will be responsible for the content, style, and placement of
these references. You will provide a Special Link (as defined
below) from each Product reference on your site to the
corresponding Xxxxxx.xxx online catalog entry. Each such link
will connect directly to a single item in our online catalog.
You may add or delete Products (and related links) from your
site at any time without our approval. Books (but not other
types of Products) that are individually listed and linked as
described above are referred to as "Individually
89
Linked Books." You may not list products on your site that are
not "Products" as defined above.
- Search Box Link: You may provide an Xxxxxx.xxx search box on
your site that will permit your site visitors to link directly
to a page on our site that contains the results of their search
queries. We will provide you with technical specifications
describing how to include an Xxxxxx.xxx search box on your site.
- General Link to Xxxxxx.xxx Home Page: You may provide a general
link on your site to our home page at xxxx://xxx.xxxxxx.xxx. We
will provide you with guidelines and graphical artwork to use in
linking to our home page.
To permit accurate tracking, reporting, and referral fee accrual, we
will provide you with special "tagged" link formats to be used in all
links between your site and our site. You must ensure that each of the
links between your site and our site properly utilizes such special
link formats. Links to our site placed on your site pursuant to this
Agreement and which properly utilize such special link formats are
referred to as "Special Links." You will only earn referral fees with
respect to activity on our site occurring directly through Special
Links: we will not be liable to you with respect to any failure by you
to use Special Links, including to the extent that such failure may
result in any reduction of amounts which would otherwise be paid to you
pursuant to this Agreement.
3. Order Processing
----------------
We will process Product orders placed by customers who follow Special
Links from your site to our site. We reserve the right to reject
orders that do not comply with any requirements that we periodically
may establish. We will be responsible for all aspects of order
processing and fulfillment. Among other things, we will prepare order
forms, process payments, cancellations, and returns, and handle
customer service. We will track sales made to customers who purchase
Products using Special Links from your site to our site and will make
available to you reports summarizing this sales activity. The form,
content, and frequency of the reports may vary from time to time in our
discretion.
4. Referral Fees
-------------
We will pay you (in accordance with Sections 5 and 6 below) referral
fees on certain Product sales to third parties. For a Product sale to
be eligible to earn a referral fee, the customer must follow a Special
Link from your site to our site, select and purchase the Product using
our automated ordering system, accept delivery of the Product at the
shipping destination, and remit full payment to us. We will not,
however, pay referral fees on any Products that are added to a
customer's Shopping Cart or are purchased via our One-ClickSM feature
after the customer has reentered our site (other than through a Special
Link), even if the customer previously followed a link from your site
to our site. In addition, Products listed in our catalog or in search
results as "out of print" or "hard to find" are not eligible for any
referral fees. Gift certificates are not eligible to earn referral
fees. The Program is intended for commercial use only, and you may not
purchase products through the Program for your own use. Such purchases
may result (in our sole discretion) in the withholding of referral fees
or the termination of this
90
Agreement. Products that are eligible to earn referral fees under the
rules set forth above are referred to as "Qualifying Products."
5. Referral Fee Schedule
---------------------
You will earn referral fees based on Qualifying Revenues according to
referral fee schedules to be established by us. "Qualifying Revenues"
are revenues derived by us from our sales of Qualifying Products,
excluding costs for shipping, handling, gift-wrapping, taxes, service
charges, credit card processing fees, and bad debt. The current
referral fee schedule is:
- 15% of Qualifying Revenues from the sale of each Individually
Linked Book that, on the date of order, is listed in our catalog
at 10% to 30% off the publisher's list price and that is added to
the customer's Shopping Cart directly from the first page that
results from following a Special Link to the Individually Linked
Book.
- 5% of Qualifying Revenues from sales of all other Qualifying
Products, including:
[ ] Individually Linked Books that, on the date of order, are
listed in our catalog at the publisher's list price (such
as special order books) or at a deep discount of more than
30% off the publisher's list price; and
[ ] Qualifying Products other than books (e.g., CDs, DVDS, VHS
tapes, etc.).
You should note that only books can qualify as "Individually Linked
Books" and that the referral fee percentage for any Qualifying Products
other than books is 5%, regardless of whether such item is individually
listed on your site.
6. Referral Fee Payment
--------------------
We will pay you referral fees on a quarterly basis. Approximately 30
days following the end of each calendar quarter, we will send you a
check for the referral fees earned on our sales of Qualifying Products
that were shipped during that quarter, less any taxes that we are
required by law to withhold. However, if the referral fees payable to
you for any calendar quarter are less than $100.00, we will hold those
referral fees until the total amount due is at least $100.00 or (if
earlier) until this Agreement is terminated. If a Product that
generated a referral fee is returned by the customer, we will deduct
the corresponding referral fee from your next quarterly payment. If
there is no subsequent payment, we will send you a xxxx for the
referral fee.
7. Policies and Pricing
--------------------
Customers who buy products through this Program will be deemed to be
customers of Xxxxxx.xxx. Accordingly, all Xxxxxx.xxx rules, policies,
and operating procedures concerning customer orders, customer service,
and product sales will apply to those customers. We may change our
policies and operating procedures at any time. For example, we will
determine the prices to be charged for products sold under this Program
in accordance with our own pricing policies. Product prices and
availability may vary from time to time. Because price changes may
affect Products that you already
91
have listed on your site, you may not include price information in your
Product descriptions. We will use commercially reasonable efforts to
present accurate information, but we cannot guarantee the availability
or price of any particular product.
8. Identifying Yourself as an Associate
------------------------------------
We will make available to you a small graphic image that identifies
your site as a Program participant. You must display this logo or the
phrase "In association with Xxxxxx.xxx" somewhere on your site. We may
modify the text or graphic image of this notice from time to time. In
addition, we encourage (but do not require) you to include a Special
Link on your site to the Xxxxxx.xxx home page at xxxx://xxx.xxxxxx.xxx.
You may not make any press release with respect to this Agreement or
your participation in the Program without our prior written consent,
which may be given or withheld in our sole discretion. Please review
our Rules Regarding Associate Communications and Promotion.
9. Limited License
---------------
We grant you a nonexclusive, revocable right to use the graphic image
and text described in Section 8 and such other images for which we
grant express permission, solely for the purpose of identifying your
site as a Program participant and to assist in generating Product
sales. You may not modify the graphic image or text, or any other of
our images, in any way. We reserve all of our rights in the graphic
image and text, any other images, our trade names and trademarks, and
all other intellectual property rights. You agree to follow our
Trademark Guidelines, as those guidelines may change from time to time.
We may revoke your license at any time by giving you written notice.
10. Responsibility for Your Site
----------------------------
You will be solely responsible for the development, operation, and
maintenance of your site and for all materials that appear on your
site. For example, you will be solely responsible for:
- the technical operation of your site and all related equipment
- creating and posting Product descriptions on your site and linking
those descriptions to our catalog
- the accuracy and appropriateness of materials posted on your site
(including, among other things, all Product-related materials)
- ensuring that materials posted on your site do not violate or
infringe upon the rights of any third party (including, for
example, copyrights, trademarks, privacy, or other personal or
proprietary rights)
- ensuring that materials posted on your site are not libelous or
otherwise illegal
We disclaim all liability for these matters. Further, you will
indemnify and hold us harmless from all claims, damages, and expenses
(including, without limitation, attorneys' fees) relating to the
development, operation, maintenance, and contents of your site.
92
11. Term of the Agreement
---------------------
The term of this Agreement will begin upon our acceptance of your
Program application and will end when terminated by either party.
Either you or we may terminate this Agreement at any time, with or
without cause, by giving the other party written notice of termination.
Upon the termination of this Agreement for any reason, you will
immediately cease use of, and remove from your site, all links to our
site, and all Xxxxxx.xxx trademarks, trade dress and logos, and all
other materials provided by or on behalf of us to you pursuant hereto
or in connection with the Program. You are only eligible to earn
referral fees on our sales of Qualifying Products occurring during the
term, and referral fees earned through the date of termination will
remain payable only if the related orders are not canceled or returned.
We may withhold your final payment for a reasonable time to ensure that
the correct amount is paid.
12. Modification
------------
We may modify any of the terms and conditions contained in this
Agreement, at any time and in our sole discretion, by posting a change
notice or a new agreement on our site. Modifications may include, for
example, changes in the scope of available referral fees, referral fee
schedules, payment procedures, and Program rules. IF ANY MODIFICATION
IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS
AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR
POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE
BINDING ACCEPTANCE OF THE CHANGE.
13. Relationship of Parties
-----------------------
You and we are independent contractors, and nothing in this Agreement
will create any partnership, joint venture, agency, franchise, sales
representative, or employment relationship between the parties. You
will have no authority to make or accept any offers or representations
on our behalf. You will not make any statement, whether on your site
or otherwise, that reasonably would contradict anything in this
Section.
14. Limitation of Liability
-----------------------
We will not be liable for indirect, special, or consequential damages
(or any loss of revenue, profits, or data) arising in connection with
this Agreement or the Program, even if we have been advised of the
possibility of such damages. Further, our aggregate liability arising
with respect to this Agreement and the Program will not exceed the
total referral fees paid or payable to you under this Agreement.
15. Disclaimers
-----------
We make no express or implied warranties or representations with
respect to the Program or any products sold through the Program
(including, without limitation, warranties of fitness, merchantability,
noninfringement, or any implied warranties arising out of a course of
performance, dealing, or trade usage). In addition, we make no
representation that the operation of our site will be uninterrupted or
error-free, and we will not be liable for the consequences of any
interruptions or errors.
93
16. Independent Investigation
-------------------------
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS
TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY
OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM
THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR
TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE
DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY
REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS
AGREEMENT.
17. Miscellaneous
-------------
This Agreement will be governed by the laws of the United States and
the state of Washington, without reference to rules governing choice of
laws. Any action relating to this Agreement must be brought in the
federal or state courts located in Seattle, Washington, and you
irrevocably consent to the jurisdiction of such courts. You may not
assign this Agreement, by operation of law or otherwise, without our
prior written consent. Subject to that restriction, this Agreement
will be binding on, inure to the benefit of, and enforceable against
the parties and their respective successors and assigns. Our failure
to enforce your strict performance of any provision of this Agreement
will not constitute a waiver of our right to subsequently enforce such
provision or any other provision of this Agreement.
94
