MASTER AGREEMENT
ECOMMERCE BRANDING AFFILIATE AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 20th day of
April, 2000, by and between XXXXXXXX.XXX, a Nevada Corporation ("Ubrandit") and
WHITE KNIGHT BROADCASTING, INC. ( the "Branding Affiliate").
W I T N E S S E T H:
WHEREAS, Ubrandit is an Internet commerce and content provider with a
brandable site (the "Book, Music, Video Store") featuring books, music tapes and
CDs, and movie videos and DVDs ("Ubrandit Products") with proprietary branding
technology and methodology systems, and
WHEREAS, The Branding Affiliate is a company which desires to brand
under its brand name to its customers and prospects the Book, Music, Video Store
and sell books, music tapes and CDs, and videos and DVDs ("Ubrandit Products"),
and
WHEREAS, Ubrandit desires to pay Branding Affiliate a commission for
sales and allow Branding Affiliate to participate in specific programs available
to Branding Affiliates pursuant to the terms of this Agreement, and
WHEREAS, The Branding Affiliate desires to market these branded
services in the markets set forth in the list attached hereto as Exhibit "A."
NOW, THEREFORE, in consideration of the promises and the mutual
covenants herein contained, it is hereby agreed as follows:
1.BRANDING AFFILIATE SPECIFICATIONS
The Branding Affiliate agrees to provide Ubrandit with all information required
by the specification application attached hereto as Exhibit "B." Upon completion
of said specification application and the receipt of payment by Ubrandit of any
applicable set up fees, Ubrandit shall enroll the Branding Affiliate into
Ubrandit's branding program pursuant to the terms of this Agreement (the
"Branding Program"). However, Ubrandit, reserves the right to cancel this
Agreement and terminate the Branding Affiliate's enrollment in the Branding
Program with or without cause at any time and for any reason, including, but not
limited to, a determination (in Ubrandit's sole discretion) that the Branding
Affiliate's site is unsuitable for the Branding Program due to its inclusion of
content that is in any way unlawful, harmful, threatening, defamatory, obscene,
harassing, or racially, ethnically, or otherwise objectionable.
2. XXXXXXXX.XXX EXCLUSIVE SELLER OF BOOKS, MUSIC, VIDEOS AND DVDS
Subject to the terms and conditions set forth below, Ubrandit shall be the
exclusive seller of books, music CDs and tapes, and videos and DVDs on the
Branding Affiliate site. The Branding Affiliate agrees that the Branding
Affiliate will not (directly or indirectly) allow any other person or entity to
sell books, music CDs and tapes, and videos and DVDs on the Branding Affiliate
site or link their site to the Branding Affiliate in connection with the sale of
books, music CDs and tapes, and videos and DVDs. This agreement does not prevent
a Branding Affiliate from selling/fulfilling its own proprietary published
titles on its site.
3. THE BRANDING AFFILIATE BOOK, MUSIC, VIDEO STORE
Ubrandit will make available to the Branding Affiliate certain proprietary
content including graphic and textual links which will allow the Branding
Affiliate to present the interactive Book, Music, Video Store in a window on the
Branding Affiliate site. By accessing the content of said window users of
Branding Affiliate's site will be able to purchase Ubrandit Products. During the
setup process and pursuant to the terms of this Agreement, the Branding
Affiliate will be permitted to make certain customizations to the look of the
window displaying the content of the Book, Music, Video Store to give the look
of transparency and to conform the window to the colors and style of the
Branding Affiliate site. The Branding Affiliate will have the discretion as to
colors, certain textual references, and the use of logos in the customizing of
the window that presents the Book, Music Video Store on the Branding Affiliate
site and links to the Ubrandit site; however, as described below, the linking to
the Ubrandit site is subject to the terms and conditions hereof, and
Xxxxxxxx.xxx has the right to monitor the Branding Affiliate site to ensure that
it is in compliance with this Agreement.
4. UBRANDIT'S RESPONSIBILITIES
Xxxxxxxx.xxx will provide the Branding Affiliate with the linking information
necessary to allow the Branding Affiliate to display the Book, Music, Video
Store on the Branding Affiliate site. As part of the content provided, Ubrandit
will provide certain search engines to assist user in their purchase of Ubrandit
Products. Ubrandit will be solely responsible for processing every order placed
by a customer following a special link from the Branding Affiliate site, for
tracking the volume and amount of sales generated by the Branding Affiliate
site, and for providing information to Branding Affiliates regarding sales
statistics. Ubrandit will be responsible for order entry, payment processing,
shipping, cancellations, returns, and related customer service.
5. OTHER TERMS REGARDING BRANDING AFFILIATES
a. After the Branding Affiliate's enrollment in the Branding Affiliate Program
and the Branding Affiliate's customization of the Book, Music, Video Store, the
Branding Affiliate shall prominently display links, which comply with the terms
and conditions on this Agreement, throughout the Branding Affiliate site as the
Branding Affiliate see fit to the window displaying the Book, Music, Video
Store. b. As a Branding Affiliate, the Branding Affiliate will be entitled to
earn commissions as set forth in paragraphs 6 and 7 below. The Branding
Affiliate will also be entitled to participate in certain additional programs
offered by Ubrandit that are opened to all Branding Affiliates.
c. Ubrandit has the right in its sole discretion to monitor the Branding
Affiliate site at any time and from time to time to determine if the Branding
Affiliate is in compliance with the terms of this Agreement.
6. EARNING COMMISSIONS
Only Ubrandit Products that are (i) sold by us, (ii) purchased by users linking
to our site from the Book, Music, Video Store displayed on the Branding
Affiliate site ("Linked Users"), (iii) shipped by us, and (iv) for which
Xxxxxxxx.xxx have received full payment will qualify for a commission (each, a
"Qualifying Purchase"). Commission rates will be based on the aggregate amount
actually paid to us for Qualifying Purchases of the Ubrandit Products, excluding
amounts collected by us for sales taxes, duties, gift-wrapping, shipping,
handling, and similar charges, amounts due to credit card fraud and bad debt,
and credits for returned goods ("Net Sales"). All available items on our site
will be included in the computation of Net Sales. Commission rates are as
follows: Ubrandit will pay the Branding Affiliate a commission rate of 5% of the
Net Sales amount per item for all applicable books, music CDs and tapes, videos
and DVDs the Branding Affiliate sells through the Book, Music Video Store
displayed on the Branding Affiliate site to Linked Users. The Branding Affiliate
may also either opt to receive a larger commission by increasing the cost of
Ubrandit Products to its customers depending upon its revenue model or opt to
receive 0% commissions and pass an additional 5% discount on to the Branding
Affiliate customers.
7. PAYMENT OF COMMISSIONS
Each calendar quarter (every three months) that the Branding Affiliate
commission earned exceeds $50.00 (less any taxes required to be withheld under
applicable law) Ubrandit will send the Branding Affiliate a check and a
statement of activity to the Branding Affiliate. If the Branding Affiliate
commission earned for any quarter is less than $50.00, the total amount will be
carried until the Branding Affiliate aggregate commission exceeds $50.00 at
which time it will be paid at the end of the quarter in which the aggregate
commission exceeded $50.00. Such commission checks and statements of activity
will be sent approximately thirty (30) days after the end of the respective
calendar quarter.
8. ACCESS TO REPORTS
Ubrandit will provide Branding Affiliate with access to certain sales statistics
to verify the sales made and commission earned and paid regarding Branding
Affiliate.
9. CUSTOMERS, POLICIES, AND PRICING
Customers who buy Ubrandit Products through the Branding Program will be deemed
to be customers of Ubrandit. Accordingly, all of our rules, policies, and
operating procedures concerning customer orders, customer service, and Ubrandit
Product sales will apply to those customers. Ubrandit may change our policies
and operating procedures from time to time. For example, Ubrandit will determine
the prices to be charged for Ubrandit Products sold under the Branding Program
in accordance with our own pricing policies. Prices and availability of Ubrandit
Products may vary from time to time. Since price changes may affect products
that the Branding Affiliate has noted or highlighted on the Branding Affiliate
site, the Branding Affiliate may not include price information in any
descriptions of Ubrandit Products that the Branding Affiliate may include on the
Branding Affiliate site. Xxxxxxxx.xxx will use commercially reasonable efforts
to present accurate information, but Ubrandit cannot guarantee any information
about Ubrandit Products displayed in the Book, Music, Video, Store, including
but not limited to, the accuracy of any information regarding availability,
description, or price of any Ubrandit Product.
10. PUBLICITY REGARDING UBRANDIT
The Branding Affiliate shall not create, publish, distribute, or permit any
written material that makes reference to us without first submitting such
material to us and receiving our written consent, which Ubrandit agrees shall
not be unreasonably withheld.
11. LICENSES REGARDING CONTENT, TRADEMARKS, AND OTHER LICENSED MATERIAL
a. UBRANDIT GRANTS THE BRANDING AFFILIATE A NON-EXCLUSIVE, NON-TRANSFERABLE,
REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH LINKS SOLELY IN ACCORDANCE WITH
THE TERMS OF THIS AGREEMENT AND (ii) TO DISPLAY THE CONTENT, TRADEMARKS AND
LOGOS AND SIMILAR IDENTIFYING MATERIAL CONTAINED IN THE BOOK, MUSIC, VIDEO STORE
(COLLECTIVELY, THE "LICENSED MATERIALS") FOR THE SOLE PURPOSE OF ENABLING AND
FACILITATING LINKING FROM THE BRANDING AFFILIATE SITE TO OUR SITE SO THAT THE
BRANDING AFFILIATE USERS CAN PURCHASE UBRANDIT PRODUCTS. SAID LICENSE OF THE
LICENSED MATERIAL IS GRANTED SOLELY IN CONNECTION WITH SUCH LINKS. THE BRANDING
AFFILIATE MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY
OTHER THAN CUSTOMIZATION AUTHORIZED PURSUANT TO THIS AGREEMENT OF THE LINKED
WINDOW ON THE BRANDING AFFILIATE SITE CONTAINING THE BOOK, MUSIC, VIDEO STORE.
ALL CUSTOMIZATION OF THE DISPLAY OF THE BOOK, MUSIC, VIDEO, STORE ON THE
BRANDING AFFILIATE SITE MUST BE ACCOMPLISHED THROUGH THE USE OF CUSTOMIZATION
PROGRAMS APPEARING AT THE XXX.XXXXXXXX.XXX SITE FOR THE CUSTOMIZATION OF COLOR,
GRAPHICS, AND TEXT AND FOR THE INCLUSION OF LOGOS. THE BRANDING AFFILIATE ARE
ONLY ENTITLED TO USE THE LICENSED MATERIALS TO THE EXTENT THAT THE BRANDING
AFFILIATE IS A MEMBER IN GOOD STANDING OF THE BRANDING PROGRAM.
b. The Branding Affiliate shall not make any specific use of any Licensed
Materials for purposes other than selling Ubrandit Products on the Branding
Affiliate site, without first submitting a sample of such to Ubrandit and
obtaining the prior written consent of Ubrandit, which consent shall not be
unreasonably withheld. The Branding Affiliate agrees not to use the Licensed
Materials in any manner that is disparaging or that otherwise portrays Ubrandit
in a negative light. Ubrandit reserves all of its rights in the Licensed
Materials and its other proprietary rights. Ubrandit may revoke Branding
Affiliate's license at any time, by giving the Branding Affiliate written
notice.
c. The Branding Affiliate grants to us a non-exclusive license to utilize the
Branding Affiliate names, titles, and logos, to advertise, market, promote, and
publicize in any manner our rights hereunder; provided, however, that
Xxxxxxxx.xxx shall not be required to so advertise, market, promote, or
publicize. This license shall terminate upon the effective date of the
expiration or termination of this Agreement.
12. BRANDING AFFILIATE SITE OBLIGATIONS
a. The Branding Affiliate will be solely responsible for the development,
operation, and maintenance of the Branding Affiliate site and for all materials
that appear on the Branding Affiliate site. Such responsibilities include, but
are not limited to, the technical operation of the Branding Affiliate site and
all related equipment, links on the Branding Affiliate site to the linked Book,
Music, Video, Store window appearing on the Branding Affiliate site; the
accuracy and propriety of materials posted on the Branding Affiliate site
(including, but not limited to, all Ubrandit Product-related materials);
ensuring that materials posted on the Branding Affiliate site do not violate or
infringe upon the rights of any third party and are not libelous or otherwise
illegal.
b. Ubrandit disclaims all liability for all such matters. Further, the Branding
Affiliate 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 the Branding Affiliate
site.
13. TERM OF THE AGREEMENT
The parties agree that the term of this Agreement shall commence upon the date
of execution of this Agreement set forth above and shall continue for a term of
two (2) years. This Agreement shall automatically be renewed for additional
periods of one (1) each, without additional consideration, unless terminated by
either party through written Notice of Intention to Terminate, delivered not
less than ninety (90) days prior to the end of the current . The Branding
Affiliate is only eligible to earn commission on sales occurring during the
term, and commissions earned through the date of termination will remain payable
only if the related Ubrandit Product orders are not cancelled or returned.
Ubrandit may withhold the Branding Affiliate's final payment for a reasonable
time to ensure that the correct amount is paid.
14. MODIFICATIONS OF THE AGREEMENT
The parties may modify this agreement at any time, however, any modification
must be in writing and be signed by both parties.
15. RELATIONSHIP OF PARTIES
Branding Affiliate relationship with Ubrandit is one of independent contractors,
and nothing in this Agreement will create any partnership, joint venture,
agency, franchise, sales representative, or employment relationship with
Xxxxxxxx.xxx or the parties herein. The Branding Affiliate will have no
authority to make or accept any offers or representations on Ubrandit's behalf.
The Branding Affiliate will not make any statement, whether on the Branding
Affiliate site or otherwise, that reasonably would contradict anything in this
paragraph.
16. DISCLAIMERS
Ubrandit makes no express or implied warranties or representations with respect
to the Branding Program or any Ubrandit Products sold through the Branding
Program (including, without limitation, warranties of fitness, merchantability,
non-infringement, or any implied warranties arising out of course of
performance, dealing, or trade usage). In addition, Ubrandit make no
representation that the operation of its site will be uninterrupted or error
free, and Ubrandit will not be liable for the consequences of any interruptions
or errors.
17. BRANDING AFFILIATE REPRESENTATIONS AND WARRANTIES
The Branding Affiliate hereby represents and warrants to as follows:
a. This Agreement has been duly and validly executed and delivered by the
Branding Affiliate and constitutes the Branding Affiliate legal, valid, and
binding obligation, enforceable against the Branding Affiliate in accordance
with its terms.
b. The execution, delivery, and performance by the Branding Affiliate of this
Agreement and the consummation by the Branding Affiliate of the transactions
contemplated hereby will not, with or without the giving of notice, the lapse of
time, or both, conflict with or violate (i) any provision of law, rule, or
regulation to which the Branding Affiliate is subject, (ii) any order, judgment,
or decree applicable to the Branding Affiliate or binding upon the Branding
Affiliate assets or properties, (iii) any provision of the Branding Affiliate
by-laws or certificate of incorporation, or (iv) any agreement or other
instrument applicable to the Branding Affiliate or binding upon the Branding
Affiliate assets or properties.
c. The Branding Affiliate is the sole and exclusive owner of any trademarks,
trade name service marks, logos or copyrighted material which the Branding
Affiliate will use in the Branding Affiliate customization of the Book, Music,
Video Store window appearing on the Branding Affiliate site and the Branding
Affiliate has the right and power to grant to Ubrandit the license to use the
Branding Affiliate trademarks in the manner contemplated herein, and such grant
does not and will not (i) breach, conflict with, or constitute a default under
any agreement or other instrument applicable to the Branding Affiliate or
binding upon the Branding Affiliate assets or properties, or (ii) infringe upon
any trademark, trade name, service xxxx, copyright, or other proprietary right
of any other person or entity.
d. No consent, approval, or authorization of, or exemption by, or filing with,
any governmental authority or any third party is required to be obtained or made
by the Branding Affiliate in connection with the execution, delivery, and
performance of this Agreement or the taking by the Branding Affiliate of any
other action contemplated hereby.
e. There is no pending or, to the best of the Branding Affiliate knowledge,
threatened claim, action, or proceeding against the Branding Affiliate, or any
affiliate of the Branding Affiliates, with respect to the execution, delivery,
or consummation of this Agreement, or with respect to the Branding Affiliate
trademarks, trade names, or service marks and, to the best of the Branding
Affiliate knowledge, there is no basis for any such claim, action, or
proceeding.
18. CONFIDENTIALITY
Except as otherwise provided in this Agreement or with Ubrandit's consent the
Branding Affiliate hereto agree that all information including, without
limitation, the terms of this Agreement, business and financial information,
customer and vendor lists, and pricing and sales information, concerning
Ubrandit or the Branding Affiliate, respectively, or any Branding Affiliates
provided by or on behalf of any of them shall remain strictly confidential and
secret and shall not be utilized, directly or indirectly, by the Branding
Affiliate for the Branding Affiliate's own business purposes other than
contemplated by this agreement or for any other purpose except and solely to the
extent that any such information is generally known or available to the public
through a source or sources other than such party hereto or its affiliates.
Notwithstanding the foregoing, the Branding Affiliate is hereby authorized to
deliver a copy of any such information (a) to any person pursuant to a subpoena
issued by any court or administrative agency, (b) to its accountants, attorneys,
or other agents on a confidential basis, and (c) otherwise as required by
applicable law, rule, regulation, or legal process including, without
limitation, the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, and the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
19. LIMITATION OF LIABILITY
UBRANDIT 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 AFFILIATE NETWORK, EVEN IF UBRANDIT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS
AGREEMENT AND THE BRANDING AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL
COMMISSIONS PAID OR PAYABLE TO THE BRANDING AFFILIATE UNDER THIS AGREEMENT AND
REFUNDABLE SETUP FEES TO WHICH THE BRANDING AFFILIATE ARE ENTITLED, IF ANY.
20. INDEMNIFICATION
The Branding Affiliate hereby agrees to indemnify and hold harmless Ubrandit and
its subsidiaries and affiliates, and their directors, officers, employees,
agents, shareholders, affiliates, members, and other owners, against any and all
claims, actions, demands, liabilities, losses, damages, judgments, settlements,
costs, and expenses (including reasonable attorneys' fees) (any or all of the
foregoing hereinafter referred to as "Losses") insofar as such Losses (or
actions in respect thereof) arise out of or are based on (i) any claim that
Ubrandit's use of any trademarks provided by the Branding Affiliate infringes on
any trademark, trade name, service xxxx, copyright, license, intellectual
property, or other proprietary right of any third party, (ii) any
misrepresentation of a representation or warranty made by the Branding Affiliate
herein or any breach of a covenant and agreement made by the Branding Affiliate
herein, or (iii) any claim related to the Branding Affiliate site, including,
without limitation, content therein not attributable to Ubrandit.
21. INDEPENDENT INVESTIGATION
THE BRANDING AFFILIATE ACKNOWLEDGE THAT THE BRANDING AFFILIATE HAS READ THIS
AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. THE BRANDING AFFILIATE
UNDERSTANDS THAT UBRANDIT MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT
CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS
AGREEMENT OR OPERATE UBRANDIT SITES THAT ARE SIMILAR TO OR COMPETE WITH BRANDING
AFFILIATE'S SITE. THE BRANDING AFFILIATE HAS INDEPENDENTLY EVALUATED THE
DESIRABILITY OF PARTICIPATING IN THE BRANDING PROGRAM AND IS NOT RELYING ON ANY
REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS
AGREEMENT.
22. GOVERNING LAW
This Agreement will be governed by the laws of the United States and the State
of California, 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 California, and the Branding Affiliate irrevocably consents to the
jurisdiction of such courts. The Branding Affiliate 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 be enforceable against the parties and their respective
successors and assigns. Failure to enforce the Branding Affiliate strict
performance of any provision of this Agreement will not constitute a waiver of
our right to subsequently enforce such a provision or any other provision of
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first above written.
XXXXXXXX.XXX
By: /S/ XXXX XXXXXXXX
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Name: XXXX XXXXXXXX
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Title: PRESIDENT
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___________________________
By: /S/ XXXXXXX XXXXXXXX
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Name: XXXXXXX XXXXXXXX
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Title: PRESIDENT
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