Upromise, Inc. Newton, Massachusetts 02459 Telephone: 617-454-6400; Facsimile: 617-454-6360
Exhibit
99.01
Upromise,
Inc.
00
Xxxxx
Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxxxxx 00000
Telephone:
000-000-0000; Facsimile: 000-000-0000
Xxx
Xxxxxxxxx
Xxxxxxxx
0, 0000
Xxxxxxxxx:
Xxxx Xxx
0000
XX
Xxxxxx Xxxx
Xxxxx
000
Xxxxxx,
Xxxxxxxxxx 00000
RE: The
Family Xxxx.xxx Affiliate Marketing Program Agreement
Dear
Xxxx:
This
letter agreement sets forth the terms and conditions pursuant to which Upromise,
Inc. (“Upromise”) will participate in the Family Post affiliate marketing
program (the “Program”) of DigitalPost Interactive, Inc. (the “Company”), which
is offered through Performics Inc. (“Performics”) pursuant to the Performics
Marketing Services Agreement (or successor agreement) between Company and
Performics (the “Marketing Services Agreement”).
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1.
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This
letter agreement is the only agreement between the parties relating
to
Upromise's participation in the Company's affiliate marketing
program. Notwithstanding the foregoing, (a) Company agrees that
Upromise is an intended third party beneficiary of the Marketing
Services
Agreement and, accordingly, that Upromise may enforce such provisions
against Company and (b) Upromise agrees that Company is an intended
third
party beneficiary of the agreement between Upromise and Performics
relating to Upromise’s participation in the Program and, accordingly, that
Company may enforce such provisions against
Upromise.
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2.
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Company
agrees to pay to Upromise a commission (a “Commission”) for each purchase
of a product or service by a Qualified Customer other than Excluded
Purchases (as defined below). A “Qualified Customer” shall mean
any individual or entity that (i) places an order for products and/or
services from the Company's website within the time period set forth
in an
insertion order between Upromise and Performics of clicking through
to the
Company's website via hyperlinks made available by the Company or
Performics and displayed by Upromise, or (ii) completes and submits
Company’s registration form within the time period set forth in such
insertion order of clicking through to Company's website via hyperlinks
made available by the Company or Performics and displayed by
Upromise. However, in the event that a Qualified Customer has
visited more than one distribution partner of Performics (including
Upromise) prior to purchasing products or service from the Company’s
website, such person shall only be considered a Qualified Customer
for
purposes of this agreement if Upromise is the last distribution partner
from which such Qualified Customer clicked through prior to placing
his or
her order.
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3.
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The
Commission amount that Company will pay to Upromise will be set forth
in
one or more separate insertion orders between Upromise and
Performics. Commissions shall be paid on a monthly basis within
60 days after the date they are earned.
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4.
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Company
must provide to Upromise at least 7 days prior written notice before
it
excludes any purchases made by a Qualified Customer from earning
Commissions (e.g., purchases of particular products, purchases from
a
third party promoted on Company’s website, purchases in which the
purchaser receives another promotional offer from Company, etc.)
(collectively, “Excluded Purchases”) or modifies the list of Excluded
Purchases or the Commission amount payable to
Upromise.
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5.
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Each
party must provide the other party at least two (2) business day’s prior
written notice (by email) before it terminates this letter agreement
for
any reason. Performics may provide notice on behalf of a
party.
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6.
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During
the term of this letter agreement, Company shall not remove, disable
or
otherwise modify the Performics tag from Company’s online confirmation
page. Furthermore, without Performics’ prior consent, Company
shall not modify the confirmation page in any manner that will hinder
or
alter the information Performics receives from the
tag.
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7.
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Upromise
shall not be responsible for the content of any advertising or other
promotional materials Company makes available to Upromise (collectively,
the “Advertising”) including but not limited to, any claims, errors or
omissions in materials made available to Upromise. Company represents
and
warrants to Upromise that (a) it is authorized to make available
to
Upromise the contents and subject matter of the Advertising, (b)
the
Advertising does not and will not violate any law or regulation or
infringe upon any copyright, trademark or any other right of any
party,
and (c) the Advertising does not and will not violate any applicable
laws,
licenses, rules or regulations, including, without limitation, rights
of
publicity and laws of publication.
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8.
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Upromise
agrees to indemnify and hold harmless Company and its Affiliates,
directors, officers, employees and agents against all third party
claims,
actions, suits, proceedings, fines, damages, costs (including without
limitation settlement costs) losses and expenses, including reasonable
attorneys’ fees and costs (collectively, the “Damages”) which any of them
may suffer as a result of (a) any alleged or actual infringement,
misappropriation or violation of any patent, copyright, trademark,
trade
secret or other proprietary right by or in connection with the content
or
publication of any advertising or promotional materials of Upromise
(other
than advertising made available by Company) (collectively, the “Upromise
Materials”), (b) the content of or publication of such Upromise Materials,
(c) any claims of defamation, obscenity, indecency, violation of
statutory
or common law, privacy or publicity rights or any other third party
claims
arising out of or in connection with the Upromise Materials, (d)
Upromise's products or services, (e) any breach of this letter agreement,
and (f) Upromise’s negligence or willful misconduct. As used
herein, the term “Affiliates” means an entity that controls, is controlled
by or is under common control of a
party.
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9.
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Company
agrees to indemnify and hold harmless Upromise and its Affiliates,
directors, officers, employees and agents against all claims, actions,
suits, proceedings, fines, damages, costs (including without limitation
settlement costs) losses and expenses, including reasonable attorneys’
fees and costs (collectively, the “Damages”) which any of them may suffer
as a result of (a) any alleged or actual infringement, misappropriation
or
violation of any patent, copyright, trademark, trade secret or other
proprietary right by or in connection with the content or publication
of
any of the Advertising, (b) the content of or publication of such
Advertising (except to the extent that the Damages arose from
modifications which were made by Upromise without the consent of
Company),
(c) any claims of defamation, obscenity, indecency, violation of
statutory
or common law, privacy or publicity rights or any other third party
claims
arising out of or in connection with the Advertising, (d) Company’s
products or services, (e) any breach of this letter agreement or
the
Marketing Services Agreement by Company, and (f) Company’s negligence or
willful misconduct.
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10.
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Neither
party shall be liable for indirect, incidental, special, consequential
or
punitive damages or any loss of revenue, profits, or data, arising
in
connection with this letter agreement or its participation in the
Program,
even if such party has been advised of the possibility of such
damages.
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11.
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All
remedies available to a party under or with respect to this letter
agreement are cumulative and in addition to all other remedies, if
any,
available at law or in equity.
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Please
arrange to have a copy of this letter signed by an authorized individual in
the
space provided below to acknowledge Company’s agreement with the
foregoing.
Very
truly yours,
/s/
Xxxxx Xxxxxx
Xxxxx
Xxxxxx
President
Agreed
and Acknowledged
By: /s/
Xxxx
Xxxxxxx
Name: Xxxx
Xxxxxxx
Title:
President/CEO
