1
Exhibit 10.1
XxXx.xxx Affiliate Program Agreement
1. Agreement
By completing and sending in the accompanying XxXx.xxx Affiliate Program
registration form, you are entering into a legal agreement with XxXx.xxx, Inc.
which contains all of the terms and conditions below and governs your
participation in the XxXx.xxx Search Affiliate Program.
2. Statement of Investigation
You acknowledge that you have read this Agreement and agree to all of its terms
and conditions. You understand that XxXx.xxx may, at any time (directly or
indirectly) solicit referrals for users of information retrieval services on
terms that differ from those contained in this Agreement, or operate sites that
are similar to or compete with your site. You acknowledge that you independently
have evaluated the desirability of participating in XxXx.xxx's Search Affiliate
Program and are not relying on any representation, guarantee or statement other
than as set forth in this Agreement.
3. Enrollment in the XxXx.xxx Affiliate Program
To begin the enrollment process, you must submit a complete Search Affiliate
Program application via the XxXx.xxx site at
xxxx://xxx.xxxx.xxx/x/xxxxxxxxx/x/xxxxxx/. XxXx.xxx will evaluate your
application in good faith and will notify you in a timely manner regarding
acceptance or rejection. XxXx.xxx may reject your application if it determines
(at its sole discretion) that your site is unsuitable for the XxXx.xxx Affiliate
Program for any reason. If XxXx.xxx rejects your application, you may reapply at
any time, and XxXx.xxx will consider the application.
4. Definitions
The following capitalized terms have the meanings set forth below:
"Search Engine" means XxXx.xxx's proprietary technology for searching on the
World Wide Web, for organizing information available through the World Wide Web,
and for providing search results to users who request such information.
"Search Fields" means the user interface features and functionality through
which a user submits search queries and connects to XxXx.xxx's Search Engine,
including a window in which a user would enter text into the Search Field and a
button that a user would click to submit the query from that window to the
XxXx.xxx Search Engine.
"Click-Through" occurs when a user enters text into the window of a Search Field
and then clicks the button to submit a search request to the XxXx.xxx Search
Engine. XxXx.xxx counts Click-Throughs when valid search requests are received
at the XxXx.xxx Search Engine.
5. Provision of the XxXx.xxx Search Engine
XxXx.xxx will provide to you Search Fields (which may be in different format)
through which users of your site may access and use XxXx.xxx's Search Engine.
You may display Search Fields, in any of the formats provided by XxXx.xxx, on
any or as many areas or pages of your site as you wish.
6. Commissions
XxXx.xxx will pay you a commission of $0.02 per Click-Through. XxXx.xxx has no
obligation to pay you a commission for hits on the XxXx.xxx Search Engine that
were not generated by means of a valid search request or otherwise do not fit
the above definition of a Click-Through.
XxXx.xxx will pay you commissions on a quarterly basis. Within 30 days or a
reasonable time after the end of each calendar quarter, XxXx.xxx will send you a
check for the commissions earned during that quarter, less any taxes that
XxXx.xxx may be required to withhold. However, if the commissions you earned
during any calendar quarter are less than $25, then XxXx.xxx will hold those
commissions until the quarter in which the total amount due is at least $25 or
(if earlier) until this Agreement is terminated. If XxXx.xxx's records show
activity from the Search Fields on your site that XxXx.xxx determines is
inconsistent with valid search requests, or is otherwise unusual, then XxXx.xxx
reserves the right to withhold payment of commissions for a reasonable time
pending an investigation of that activity by XxXx.xxx and resolution of the
dispute (if any). XxXx.xxx will notify you promptly in this event.
7. Reporting
XxXx.xxx will give you a password that will enable you to enter a
password-protected site or area of a site communicated to you by XxXx.xxx. You
may use the password to log in to that site and to access information about the
number of times a Search Field on your site has generated a search request to
the XxXx.xxx Search Engine. You understand and agree that XxXx.xxx pays
commissions based only on Click-Throughs, and that the number of search requests
generated may not be the same as the number of Click-Throughs.
8. Publicity
2
You may not create, publish, distribute any items that reference XxXx.xxx
without first submitting those items to XxXx.xxx and receiving XxXx.xxx's
written consent. XxXx.xxx will not unreasonably withhold its consent.
9. Limited Licenses
XxXx.xxx grants to you a nonexclusive right to use the XxXx.xxx Search Fields
and such other images for which XxXx.xxx grants express permission, solely on
your site, for the purpose of providing the services described in Section 2
(Provision of the XxXx.xxx Search Engine). You may not modify a Search Field or
any other images. XxXx.xxx also grants to you a nonexclusive right to use the
phrase "Search Made Simple(R)" (the "Trademark") solely to identify the Search
Fields or the Search Engine, or to describe the search capabilities on your
site. Before using the Trademark, you must have any materials on which the
Trademark appears approved by XxXx.xxx. In addition, any use of the Trademark is
subject to XxXx.xxx's Trademark Guidelines, which appear as an Appendix at the
end of this Agreement. XxXx.xxx may modify the Trademark Guidelines from time to
time, upon notice to you. XxXx.xxx reserves all rights in and to the Search
Fields, the XxXx.xxx Search Engine, the Trademark and any images, trade names,
trademarks or other intellectual property rights that XxXx.xxx provides or uses.
10. Obligations Regarding Your Site
You are solely responsible for the development, operation and maintenance of
your site and for all materials and content that content that appear on your
site. XxXx.xxx will not be responsible for any of the foregoing. You agree to
indemnify and hold XxXx.xxx harmless from all damages, claims, fees (including
attorneys' fees) and expenses relating to the development, operation or
maintenance of your site, including content not attributable to XxXx.xxx.
11. Term of the Agreement
The term of this Agreement begins upon XxXx.xxx's acceptance of your
application for the Search Affiliate Program, and ends when terminated by
either party. Either you or XxXx.xxx may terminate this Agreement at any time,
for any reason or no reason, by giving the other party written notice of
termination. Within 24 hours after termination (whether by you or XxXx.xxx),
you must remove the XxXx.xxx Search Field and any copies of the XxXx.xxx
Trademark from your site and must destroy or erase from computer memory any
items you might have that contain the XxXx.xxx Trademark. XxXx.xxx will pay
you any commissions you might have earned before termination after the end of
the current quarter.
12. Modification
XxXx.xxx may modify any of the terms and conditions contained in this Agreement
upon notice. XxXx.xxx will notify you via e-mail, and a change notice will be
posted on the XxXx.xxx site and on the site from which you retrieve the reports
or other information made available by XxXx.xxx. If a modification is
unacceptable, you may terminate this Agreement by giving notice of termination
to XxXx.xxx and following the procedures in Section 9 (Term of Agreement). If
you do not give XxXx.xxx notice and continue to display the Search Fields on
your site, then you will be considered to have accepted the modifications.
13. Relationship of the Parties
You and XxXx.xxx are independent contractors, and nothing in this Agreement
creates any partnership, joint venture, agency, franchise, sales representative
or employment relationship between you and XxXx.xxx. You understand that you do
not have authority to make or accept any offers or make any representations on
behalf of XxXx.xxx. You may not make any statement, whether on your site or
otherwise, that would contradict anything in this section.
14. Confidentiality
During the term of this Agreement, you may have access to certain non-public
information of XxXx.xxx, which information a reasonable person would consider
confidential or which is marked as "confidential" or "proprietary" by XxXx.xxx
("Confidential Information"). Confidential Information does not include
information that is generally known and available, or in the public domain
through no fault of yours. You agree (i) not to disclose any Confidential
Information to any third parties, (ii) not to use any Confidential Information
for any purposes except carrying out your rights and responsibilities under
this Agreement and (iii) to keep the Confidential Information confidential
using the same degree of care you use to protect your own confidential
information, as long as you use at least reasonable care. These obligations
survive for 3 years after termination of the Agreement.
15. Disclaimers
XxXx.xxx makes no express or implied warranties with respect to its Affiliate
Program, the XxXx.xxx Search Engine, the Search Fields or the results obtained
from using the Search Fields and Search Engine.
3
You understand that the operation of the Search Fields or the Search Engine may
not be uninterrupted or error free, and that the search results obtained
through use of the Search Fields and Search Engine may have errors or
omissions. You agree that XxXx.xxx will not be liable for any interruptions or
errors in using the Search Fields or the Search Engine, including any errors or
omissions in the search results obtained through use of the Search Fields and
the Search Engines. The provisions of this Section survive termination or
expiration of the Agreement.
16. Limitation of Liability
XxXx.xxx will not be liable for lost profits, lost business opportunities or
any other indirect, special, punitive, incidental or consequential damages
arising out of or related to this Agreement or XxXx.xxx's Search Affiliate
Program, even if XxXx.xxx has been advised of the possibility of such damages.
Further, XxXx.xxx's aggregate liability arising under this Agreement will not
exceed the amount of the total commission fees paid or payable to you under
this Agreement. The provisions of this Section survive termination or
expiration of the Agreement.
17. Miscellaneous Provisions
THIS AGREEMENT WILL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF CALIFORNIA AND THE UNITED STATES OF AMERICA, WITHOUT REGARD TO CONFLICT
OF LAW PRINCIPLES. This is the entire Agreement between you and XxXx.xxx with
respect to the XxXx.xxx Affiliate Program. Except as specifically set forth in
Section 10 (Modifications) and Section 7 (Limited Licenses), any modification
to this Agreement must be in writing and signed by both parties. You may not
assign this Agreement, by operation or law or otherwise, without XxXx.xxx's
prior written consent. Subject to that restriction, this Agreement will be
binding on, inure to the benefit of and be enforceable against the parties and
their respective successors and assigns. XxXx.xxx's failure to enforce your
strict performance of any provision of this Agreement will not constitute a
waiver of XxXx.xxx's right to subsequently enforce that provisions, or any
other provisions of this Agreement. The provisions of this Section survive
termination or expiration of the Agreement.
Appendix: Trademark Guidelines
You may use the Trademark solely for the purpose authorized by XxXx.xxx, Inc.
You may not change the proportion, color or font of the Trademark, or otherwise
alter the Trademark in any manner.
You may not display the Trademark in any manner that implies sponsorship or
endorsement by XxXx.xxx, except of your involvement in the XxXx.xxx Affiliates
Program.
You may not use the Trademark to disparage XxXx.xxx, its products or services,
or in a manner which, in XxXx.xxx's reasonable judgement, may diminish or
otherwise damage XxXx.xxx's goodwill in the Trademark.
The Trademark must appear by itself, with reasonable spacing (at least the
height of the Trademark) between each side of the Trademark and other graphic
or textual elements.
You must use (R) symbol adjacent to the Trademark.
You must include the following statement in your materials that include the
Trademark: Search Made Simple(R) is the registered trademark of XxXx.xxx, Inc.
You acknowledge that all rights to the Trademark are the exclusive property of
XxXx.xxx, Inc., and all goodwill generated through your use of the Trademark
will inure to the benefit of XxXx.xxx, Inc.
