CO-BRAND PROGRAM AGREEMENT
This Co-brand Program Agreement ("Agreement") is made and is effective
as of November 21, 1999, by and between uMember, a ____________ corporation,
having a place of business at 00000 Xxxxx Xxxxxx Xxxx., Xxxx Xxx Xxxxxxx, XX
00000 (uMember) and a website with an internet URL, xxx.xXxxxxx.xxx ("Co-brand
Site"), and The Golf Network, Inc., a Delaware corporation, having a place of
business at 0000 Xxxxxx Xxxx, #000, Xxxxxx, XX and a website with an internet
URL xxxx://xxx.XxxXxxxxxxXxxxxxx.xxx. The Co-brand (xXxxxxx.xxx) and The Golf
Network are referred to herein collectively as the "Parties."
This Agreement contains the complete terms and conditions that apply to
the Co-brand's participation in the program described herein (the "Co-brand
Program") which establishes and promotes a link from the Co-brand Site to the
Golf Network Site for the mutual benefit of the parties.
1. Enrollment
Acceptance in the Co-brand Program is determined by The Golf
Network. This Agreement can be terminated if either party's site becomes an
unsuitable site. Unsuitable sites include:
Promote sexually explicit materials;
Promote violence;
Promote discrimination based on race, sex, religion, nationality, disability,
sexual orientation or age;
Promote illegal activities;
Violate intellectual property rights.
2. Linking Your Site to uMember
The Co-brand agrees to provide a special link from the Co-brand
Site to The Golf Network Site. The Golf Network will supply or approve the
graphic used for the link and the code associated with the graphic. The Co-
brand will be responsible for the placement location of the special link and
ensuring that the link is properly formatted. The link will appear on the Co-
brand Site, xxxx://xxx.xxxxxxx.xxx, or a comparable location within the Co-
brand Site and the Co-brand will notify The Golf Network if its location is
changed. The Co-brand will use The Golfing Xxxxxxx.xxx store link on all
current and future sites belonging to xxxxxxx.xxx or its subsidiaries sites.
Co-brand will be solely responsible for ensuring that the
materials on the Co-brand site do not violate or infringe copyright,
trademark, privacy or other personal or proprietary rights of any third party;
and are not libelous or otherwise illegal. The Golf Network disclaims all
liability for these matters. Further, the Co-brand will indemnify and hold
The Golf Network harmless from all claims, damages and expenses (including,
without limitation, attorney's fees) relating to the development, operation,
maintenance and contents of the Co-brand Site.
3. Commission
The Golf Network will pay a 25% commission to xXxxxxx.xxx on all
net profits generated from sales made to customers who access The Golf Network
through the link on the Co-brand Site. As long as this Agreement is in
effect, The Golf Network will continue to pay 25% of all net profits generated
from that customer until this Agreement is terminated. The Golf Network will
not be obligated to pay any commission to xXxxxxx.xxx on any such items which
are subsequently returned by the customer. The Golf Network will provide
documentation of all customer returns from the Co-brand Site to xXxxxxx.xxx,
and will submit such documentation in its weekly sales activity and commission
fee reports.
4. Accounting of Payment
The Golf Network will be responsible for tracking access from the
Co-brand Site. The Golf Network will report access and remit payment of
commission to xXxxxxx.xxx within 15 days of shipment of the product.
5. The Golf Network Responsibilities
The Golf Network will be responsible for providing all information
necessary to allow the Co-brand to make appropriate links from the Co-brand
Site to The Golf Network Site. Customers will be supported by The Golf
Network and all orders will be processed by The Golf Network, according to The
Golf Network policies and operating procedures. Co-brand Site can reasonably
expect The Golf Network's best in-class service level commitment to next-
business day delivery of in-stock items, and its best price guarantee. The
Golf Network will maintain its Returns Policy to Co-brand members as follows:
"30 days money back guarantee." The Golf Network reserves the right to reject
orders that do not comply with any requirements set forth on The Golf Network
Site.
The Golf Network will be responsible for all aspects of order
processing and fulfillment. Among other things, The Golf Network will prepare
order forms; process payments, cancellations, and returns; and handle customer
service. The Golf Network will track sales made to customers using special
links from the Co-brand Site and will provide the Co-brand with online access
to such reports, including but not limited to customer transactions and
customer personal information, and will send the Co-brand commission Fee
reports summarizing sales activity on weekly basis. To permit accurate
tracking, reporting and commission Fee accrual, the Co-brand shall ensure that
the special links between the Co-brand Site and The Golf Network Site are
properly formatted.
6. Co-Brand Responsibilities
The development, operation and maintenance of the Co-brand Site and all
materials that appear thereon;
Maintaining its logo, co-branding text, and company information which is
stored on The Golf Network Site;
Ensuring that the link on the Co-brand Site is properly displayed;
Co-brand will advertise The Golf Network in all appropriate media; and
Co-brand will include The Golf Network in the uChat module.
7. Co-Brand Responsibilities
The Co-brand will also be co-branded, above the fold, on internal
pages within The Golf Network Site, using a logo and other materials to be
supplied and updated by the Co-brand. The Co-brand logo will be linked back
to the Co-brand Site.
8. Policies and Pricing
Customers who buy products and services will be deemed to be
customers of The Golf Network. Accordingly, all The Golf Network policies and
operating procedures, set forth on The Golf Network Site, concerning customer
orders, customer service, privacy and sales will apply to those customers.
The Golf Network may change its policies and operating procedures at any time.
For example, The Golf Network will determine the prices to be charged for
products and services in accordance with its own pricing policies as set forth
on The Golf Network Site.
9. Exclusivity
The Golf Network shall be the exclusive supplier of golf products
and services on the Co-brand site for a term of 3 (three) years from the date
of this agreement. xXxxxxx.xxx agrees that it will not place products on the
xXxxxxx.xxx Site which are considered competitor products of The Golf Network.
Should this agreement terminate prior to the end of such 3 (three) year
period, this exclusivity clause shall be deemed null and void as of the
termination date.
10. Limited License
The Parties grant each other a non-exclusive, non-transferrable,
revocable right to (i) access The Golf Network Site through the Co-brand Site
link solely in accordance with the terms of this agreement and (ii) to use
each other's logos, trade names, trademarks, and similar identifying material
relating to the Parties (collectively, the "Licensed Materials"), solely in
connection with such link, for the sole purpose of promoting each other for
the duration of this agreement. The Parties may use the License Materials as
provided by the other party and may not alter, modify, or change the Licensed
Materials in any way. Such rights to use the Licensed Materials shall be
immediately revoked if the Agreement is terminated.
11. Terms of the Agreement
The terms of this Agreement will begin upon the execution of this
Agreement and be in effect for three (3) years, with an option to renew.
Either of the Parties may terminate this Agreement at any time for cause, by
giving the other party thirty (30) days written notice of termination. Cause
for termination, as is understood by the parties to this agreement, shall
include: (i) breach of any material term or condition of this agreement and
failure to cure such breach within thirty (30) days after receipt of written
notice of the same, except in the case of failure to pay fees, which must be
cured within five (5) days after receipt of written notice from the Co-brand
(ii) either party becomes the subject of a voluntary petition in bankruptcy or
any voluntary proceeding relating to insolvency, receivership, liquidation, or
composition for the benefit of creditors any the Co-brand will be eligible to
earn a commission Fee on sales occurring during the term of the Agreement any
commission Fee earned through the date of termination will remain payable if
the related sales are not returned or canceled.
12. Relationship of the Parties
The Co-brand and The Golf Network are independent contractors, and
nothing in this Agreement will create any partnership, joint venture, agency,
franchise, sales representative, or employment relationship between the
parties. The Co-brand and The Golf Network will have no authority to make or
accept any offers or representations on each other's behalf. The Co-brand and
The Golf Network will not make any statements, whether on the Web sites or
otherwise, that reasonably would contradict anything in this Agreement.
13. Confidentiality
Except as otherwise provided in this Agreement or with the consent
of the other 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 The Golf Network or the Co-brand, 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 the
Parties.
14. Limitation of Liability
Neither party will be liable for indirect, special or
consequential damages, or any loss of revenue, profits, or data, arising in
connection with this Agreement, even if it has been advised of the possibility
of such damages. Further, each party's aggregate liability arising with
respect to this Agreement will not exceed the total Referral Fee paid or
payable to the Co-brand under this Agreement.
15. Indemnification
The Golf Network agrees to indemnify and hold harmless the Co-
brand, 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) arising out of or are based on (i) any
claim that a party's use of the other party's 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 a party herein, or (iii) any claim related to the Co-brand
Site, including, without limitation, content therein not attributable to The
Golf Network, unless it is determined there was gross negligence or wilfull
misconduct on behalf of the Co-brand.
16. Miscellaneous
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 Co-bran irrevocably consents to the
jurisdiction of such courts. Neither party may 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. Such party's failure to enforce strict performance of any provision
of this Agreement will not constitute a waiver of the right to subsequently
enforce such a provision or any other provision of this Agreement.
/s/ Xxxx Xxxxxxxxx /s/ Xxxxx Xxxxxx
Signature of Co-brand Officer Signature of THE GOLF NETWORK
Officer
Name of Officer: Xxxx Xxxxxxxxx Name of Officer: Xxxxx Xxxxxx
Title: VP Merchandising Title: President
Date: 11-30-99 Date: 12-2-99
