EXHIBIT 10.9
ASSOCIATE PROGRAM AGREEMENT
This Associate Program Agreement (the "Agreement") contains the terms and
conditions that apply to your participation in the xxxxxxxxx.xxx Associate
Program (the "Program"). By clicking the Submit button at the end of the
associate application, you acknowledge that you have read and understand the
terms and conditions of the Agreement and you agree to be legally bound by the
Agreement. As used in this Agreement, "we" means xxxxxxxxx.xxx, inc., and "you"
means the associate. "Site" means a World Wide Web site and, depending on the
context, refers either to xxxxxxxxx.xxx's site located at the URL
xxx.xxxxxxxxx.xxx, or to the site that you will link to our site (and which you
will identify in your Program application).
Joining the Associate Program
To become an associate, you must submit a Program application via our site. We
will evaluate your application in good faith and will notify you of its
acceptance or rejection. We will reject your application if it is incomplete. We
reserve the right to reject your application if we determine (in our sole
discretion) that your site is unsuitable for the Program. An unsuitable site
includes, but is not limited to, a site that promotes: sexually explicit
materials; violence; discrimination based on race, sex, religion, nationality,
disability, sexual orientation, or age; or illegal activities. An unsuitable
site also includes a site that uses "xxxxxxxxx.xxx" or variations or
misspellings thereof in its domain names or otherwise violate intellectual
property rights of xxxxxxxxx.xxx, inc. If we reject your application, you may
reapply to the Program at any time.
Linking to xxxxxxxxx.xxx from Your Site
Once you have become an Associate, you will have access to the Members Only page
on our site. Here, you will be provided with the links that will connect
directly from your site to our site ("Link(s)"), along with information with
respect to the use of the Links. The Links that we have prepared are special
"tagged" links that facilitate accurate tracking, reporting, and marketing fee
computation. You will only earn marketing fees with respect to activity on our
site occurring directly through a Link.
Marketing Fee
The marketing fee schedule is located here. We will track new customers and
sales made to all customers who purchase Health, Beauty, Wellness, and Personal
Care items through a Link and will make available to you reports summarizing
such sales activity. The form, content, and frequency of the reports may vary
from time to time in our discretion.
* A new customer is someone who, during a visit through a Link, makes a first
purchase from xxxxxxxxx.xxx of a Health, Beauty, Wellness, or Personal Care
item.
* For a sale to be eligible to earn a marketing fee, the customer must visit our
site through a Link, place an order for Health, Beauty, Wellness, or Personal
Care products, accept delivery of the products at the shipping destination, and
remit full payment to us. You will earn marketing fees on sales based on revenue
derived by us from the sales, excluding costs for taxes, shipping, returns and
credits, including gift certificates.
We will not pay marketing fees for any new customer or on any sale to a customer
if the customer will be partially or fully reimbursed by a federal insurance
program or a private insurance carrier or if we believe such marketing fee would
otherwise violate a law. In addition, we will not pay marketing fees on any new
customer or sales that occur after a customer has reentered our site (other than
through a Link), even if the customer previously followed a Link. The Program is
intended for commercial use only, and, except for your use of "xxxxxxxxx.xxx
credit certificates" (described below), you may not purchase products through
the Program for your own use. Such purchases may result (in our sole discretion)
in the withholding of marketing fees or the termination of this Agreement. We
will pay you marketing fees on a quarterly basis. Approximately 30 days
following the end of each calendar quarter, we will send you a check for the
marketing fees payable for such quarter, less any taxes that we are required by
law to withhold. However, if the marketing fees payable to you for any calendar
quarter are less than $100.00, you will receive a xxxxxxxxx.xxx credit
certificate for the amount that can be used for your purchase of Health, Beauty,
Wellness, and Personal Care items. If the customer returns a product that
generated a marketing fee, we will deduct the corresponding marketing fee from
your next quarterly payment. If there is no subsequent payment, we will send you
a xxxx for the marketing fee.
Policies and Pricing
We will process orders placed by customers who visit xxxxxxxxx.xxx using the
Link and will be responsible for all aspects of order processing and
fulfillment. We reserve the right to reject orders that do not comply with any
requirements that we periodically may establish. Customers who buy products
through this Program will be deemed to be customers of xxxxxxxxx.xxx.
Accordingly, all xxxxxxxxx.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 in accordance with
our own pricing policies. Product prices and availability may vary from time to
time. Because the price of any product is subject to change at any time, you may
not include price information on your site. We will use commercially reasonable
efforts to present accurate information, but we cannot guarantee the
availability or price of any particular product.
Limited License
We grant you a nonexclusive, revocable right to use the Link(s) and any graphic
image and text necessary to establish a Link to xxxxxxxxx.xxx from your site and
such other images for which we grant express permission, solely for the purpose
of identifying your site as an Associate and to assist in generating sales. You
may not modify a Link, any 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.
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. Such
responsibilities include, but are not limited to:
* the technical operation of your site and all related equipment o the accuracy
and appropriateness of materials posted on your site
* 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
* creating and posting product reviews, descriptions, and references on your
site and linking those descriptions to our site.
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. You hereby agree that your site will
not, in any way, copy or resemble the look and feel of our site nor will you
create the impression that your site is our site or is part of our site, nor
will you frame any page on our site being viewed by a user of your site who
links to our site through a link. Additionally, you agree that you will not
create an integrated shopping cart between our site and your site.
You also hereby agree that your site will not contain any content of our site or
any materials which are proprietary to xxxxxxxxx.xxx, except (i) with our prior
permission, or (ii) materials which are obtained by you via the Program in
accordance with the provisions hereof or the policies or instructions thereon.
You agree that you will not send any electronic communications, including but
not limited to emails or newsletters, to any of your subscribers regarding us,
without express written approval. You further agree that you will not purchase
or otherwise contract with a third party to exploit any of our marks for the
purpose of causing the your site to appear as a search result or for any other
reason.
Abuse of Promotions
We reserve the right to suspend access to our site through the Link in the event
that we experience suspected abuse of the promotions being made available to
customers through the Link.
Publicity
With the exception of identifying yourself as an associate of our site, you
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.
Termination of Your Participation in the Associate Program
You will become an associate immediately upon our acceptance of your Program
application and will remain an associate until either party terminates the
Agreement. 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 must immediately cease use of,
and remove from your site, all links to our site, and all xxxxxxxxx.xxx
trademarks, trade dress and logos, and all other materials provided by or on
behalf of us to you in connection with the Program. We reserve the right to
terminate your participation in the Associate Program at any time if we
determine (in our sole discretion) that your site is unsuitable for the Program.
You are only eligible to earn marketing fees on sales and registrations
occurring during the term, and marketing 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.
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
marketing fee schedule, 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.
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 us. 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.
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 marketing fees paid or payable to you under
this Agreement.
Confidentiality
Except as otherwise provided in this Agreement or with the consent of the party
hereto, each of the parties hereto agrees 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 us or you, shall remain strictly confidential and secret and shall
not be utilized, directly or indirectly, by such party for its own business
purposes 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, each party 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 rules and regulations promulgated thereunder, and the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
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.
Representations and Warranties
You hereby represent and warrant to us as follows:
a. This Agreement has been duly and validly agreed to and accepted by you
and constitutes your legal, valid, and binding obligation, enforceable
against you in accordance with its terms.
b. The execution, delivery, and performance by you of this Agreement and
the consummation by you 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 you are subject, (ii) any order, judgment, or decree
applicable to you or binding upon your assets or properties, (iii) any
provision of your by-laws or certificate of incorporation, or (iv) any
agreement or other instrument applicable to you or binding upon your
assets or properties.
c. Your are the sole and exclusive owner of your trademarks and have the
right and power to grant to us the license to use your 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 you or binding upon your 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 you in connection with the execution , delivery,
and performance of this Agreement or the taking by you of any other
action contemplated hereby.
e. There is no pending or, to the best of your knowledge, threatened
claim, action, or proceeding against you, or any affiliate of yours,
with respect to the execution, delivery, or consummation of this
Agreement, or with respect to your trademarks, and, to the best of your
knowledge, there is no basis for any such claim, action, or proceeding.
f. You are an adult of at least 18 years of age.
Compliance with Laws
You will comply with all applicable local, state and federal laws, statutes,
orders, ordinances and regulations relating to performance of the Program.
Indemnification
You hereby agree to indemnify and hold harmless xxxxxxxxx.xxx and its
subsidiaries and affiliates, and their directors, officers, employees, agents,
shareholders, partners, members, and other owners, against any and all claims,
actions demands, liabilities, losses, damages, judgments, settlements, costs,
and expenses (including reasonable attorney's 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 our use of your
trademarks 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 or breach of a
covenant and agreement made by you herein, or (iii) any claim related to the
operation of your site.
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.
Identification of Affiliates
We may identify you or your site as a participant in the Program without
providing you prior notice or obtaining your specific written consent. Such
identification may be oral, written, or electronic, and may include, but is not
limited to, public announcements, promotional materials, internal and external
reports, and public filings.
Assignment
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 be enforceable against, the parties and
their respective successors and assigns.
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.
