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Affiliate Advertising Agreement
The undersigned ("Affiliate"), by submitting the Affiliate Application and this Affiliate Advertising Agreement (collectively, the "Agreement") to Big Golf Discounts USA Inc., a Florida corporation ("BGD"), acknowledges that it wishes to become an Affiliate, and in consideration agrees to be bound by the terms and conditions of this Agreement Affiliate warrants that all information provided in the Affiliate Application is true and accurate. Affiliate understands that BGD has sole discretion over whether to accept or reject Affiliate´s Application, and that this Agreement will not be binding unless Affiliate has been notified of such acceptance.
RECITALS:
A. Affiliate is the owner or authorized operator or representative of the Internet web site(s), email lists, other segments or spaces on such web site(s) and web-based services upon which BGD’s offers (as defined below) may be displayed in connection with and pursuant to the terms of this Agreement.
B. BGD operates a unique “member content” website. BGD actively recruits Affiliate relationships to place performance-based advertising offers in the form of banners, textual links, email campaigns, transactional ads or other relevant media in order to attract new membership to its website. BGD offers a commission on a “per sale” basis to Affiliates under this agreement.
C. This Agreement governs Affiliate’s inclusion in the commission-based program, which it manages and offers, for the purposes of creating and disbursing a commission income for the Affiliate. Commissions are payable on a one-time basis for NEW membership sales only, unless otherwise specified in an addendum to this agreement.
1. Term
BGD reserves the right to terminate this Agreement at any time upon notice to Affiliate via e-mail or via BGD’s Web site. BGD may immediately terminate this Agreement without notice if Affiliate is in breach of any representation, warranty or covenant in this Agreement or any other agreement to which Affiliate and BGD are a party. Affiliate may terminate this Agreement upon thirty (30) days written notice or confirmed email notification to BGD. The rights and obligations contained in Sections 3, 5, 6, 7, 8 and 9 of this Agreement shall survive the termination or expiration of this Agreement.
2. Acceptance
Affiliate at its discretion, and upon approval by BGD, shall determine which banners and/or marketing techniques it will display or utilize for the purpose of attracting new memberships to BGD. Any banner display or other marketing technique utilized by Affiliate shall be displayed or conducted on the terms and conditions set forth in this Agreement. Affiliate shall not alter or modify the membership offer(s) provided by BGD. Any misrepresentation of any product or service of the Company shall be deemed in breach of this agreement.
3. Payment of Commissions to Affiliate
(a) BGD agrees to remit to Affiliate a sales commission payable in the amounts and on the terms as set forth in this Agreement. All payment obligations will be based upon tracking and reporting provided by BGD. Commissions are payable: (i) within 10 days of the end of any calendar month. (ii) Provided the aggregate amount of commissions due to Affiliate equals or exceeds fifty dollars ($50.00). (iii) Any earned but unpaid Advertising Fees shall carry over to the next regularly scheduled payment period.
(b) As used in this Agreement the Specific Terms: (i) "Net Monthly Sales" means the net dollar amount of Memberships sold to Qualified Customers during a calendar month. Net Monthly Sales are calculated exclusive of fraudulently placed orders, refunds and/or cancellations, or any discounts or rebates granted by BGD from time to time. (ii) "Qualified Customer" means any individual or entity that is tracked by BGD Affiliate programming, who clicks through to BGD’s Website via hyperlinks contained within any Offer displayed in accordance with this Agreement, and creates and purchases a viable and real membership purchase with good funds.
(c) In the event an individual or entity visited more than one Affiliate of BGD prior to purchasing a Membership from the Affiliate’s website, email, or other displayed offer, the Affiliate operating the last offer, from which such individual or entity clicked through to the BGD’s website, shall be the only party entitled to receive a commission for that unique customer.
(d) BGD will only remit payment to Affiliate if Affiliate has provided BGD with a correct mailing address and a tax identification number (W-9 form). Affiliate may choose to receive commissions in the form of an offline check via regular mail, or via the PayPal payment system.
4. Responsibilities of BGD
BGD covenants and agrees to use its commercially reasonable best efforts: (a) to provide, monitor and maintain the necessary technology applications required to link Affiliate to its member content website, and track the relevant actions as set forth in this Agreement. BGD Technology shall include the use of tags in HTML/Java or other appropriate languages to enable BGD to serve or provide Offers to Affiliate; (b) to provide Affiliate with product descriptions, GIF or JPEG Images, other product attributes (Membership descriptions, programs and prices). (c) To provide Affiliate, upon request, with real-time access to records that will allow it to monitor the volume of Offers delivered by Affiliate and the revenue produced thereby (subject to billing corrections and adjustments) in accordance with Section 3. All such records, including data, statistical information or other traffic analysis, produced or provided by either party in connection with the performance of this Agreement shall be the sole property of BGD, and any information shall be held strictly confidential by Affiliate.
5. Responsibilities of Affiliate
(a) Affiliate agrees and warrants that it shall: (i) only place Offers on Affiliate´s Distribution Medium and (including Web pages where any Offer appears) in accordance with the terms set forth in this Agreement and in accordance with proper and acceptable email marketing standards (CAN-SPAM ACT of 2004). (ii) Maintain its customer list in a manner that conforms with best practices of permission based solicitation and privacy policies; (iii) position the Offers on each Distribution Media (including any Web page where any Offer appears) in such a manner to assure that the Offers are fully and clearly visible; (iv) upon notification, update Offers in accordance with BGD program specifications.
(b) Affiliate agrees and warrants that it shall not engage in any of the following prohibited activities: (i) violate any applicable law or regulation; (ii) promote or conduct any illegal or fraudulent activity through the Distribution Media or any site linked to the Distribution Media; (iii) send or cause to be sent unsolicited advertising e-mails; (iv) display obscene, offensive, violent or misleading content on the Distribution Media or any site linked to the Distribution Media; (v) provide or allow any incentive based promotion that provides compensation to Qualified Customers, unless specifically authorized by BGD; (vi) engage in any pop-up or pop-under advertising provided, supported or involving any third party to generate impressions, clicks, or transactions; (vii) use any cookie, device, program, robot, iframes, hidden frames, popup windows or any other operation or process that interferes with BGD’s ability to properly identify and track Qualified Customers; (viii) interfere with or seek to improperly influence the referral of an end user to BGD’s Member Content site; (ix) automatically replace or alter any component of the BGD Technology that results in a reduction of compensation earned by BGD or another Affiliate; (x) use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the end user; (xi) utilize the BGD Technology in any manner that alters, changes, substitutes or modifies the content of another Affiliate’s Web site; (xii) use the BGD Technology with other software, whereby the installation and de-installation is not obvious, easy or complete. Licensing and terms of all software downloads and applications of any type must be clearly presented to and accepted by the end user. Software that utilizes the BGD Technology must be clearly marked in such a manner that the end user can identify the Affiliate’s software with an associated behavior that occurs on the end user’s computer, and receive visible notification of such behavior. In addition to any other remedies that may be available, in the event that Affiliate engages in any such prohibited activities, BGD may immediately terminate this Agreement or Affiliate’s display of any particular Offer.
(c) Affiliate shall not reproduce, distribute, republish, sub-license or otherwise make the Offers available to any third party (“Third Party Distribution”) for display on any web site not owned or exclusively operated by Affiliate other than as approved in writing by BGD. An Affiliate seeking approval for such Third Party Distribution shall submit to BGD in writing (i) notice of its intent to broker/redistribute BGD’s Offers on third party sites, (ii) a list of all such third party sites (identified by complete URL) to which Affiliate intends to broker/redistribute the Offers, and (iii) any additional information reasonably requested by BGD regarding Affiliate’s business practices, privacy policies, etc. If Affiliate is generally approved into a third-party Marketer’s program, Affiliate shall only engage in Third Party Distribution with web sites approved in writing by BGD. Any website upon which an Offer is displayed, including Offers displayed in connection with approved Third Party Distribution, shall be included within the definition of Distribution Media.
(d) Affiliate agrees never to alter any BGD tags so as to include any personally identifiable or sensitive information of any visitors in such tags.
(e) Affiliate further agrees and warrants that it will comply with all local, state and federal laws and regulations (including, but not limited to, the “CAN-SPAM” Act, effective January 1, 2004, as may be amended from time to time).
(f) BGD shall notify Affiliate of any complaint received by BGD or any other Affiliate regarding the email practices of Affiliate or any alleged violation by Affiliate of the above warranties. Within forty-eight (48) hours of such notification, Affiliate shall respond to BGD and provide source information as to any questionable emails including, but not limited to, the time, date, IP address and content of the questionable emails. Additionally, as to each individual that agrees to be included in Affiliate’s outbound email solicitations, Affiliate shall maintain the information establishing the time and date that each individual granted such permission. If Affiliate fails to provide source information satisfactory to BGD to demonstrate that Affiliate did not send SPAM email or otherwise breach the above warranties, then, in addition to any and all other remedies available pursuant to this Agreement and under existing law, BGD shall have the right to immediately suspend payment to and further performance of any services by Affiliate.
6. Indemnification; Limitation of Liability
(a) Affiliate agrees to indemnify, defend and hold harmless BGD (and its respective officers, directors, employees, shareholders and agents) from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys´ fees) directly or indirectly arising from or relating to (i) any breach of this Agreement or any applicable law or regulation by Affiliate, (ii) the actual or alleged violation by Affiliate of any person’s or entity’s intellectual property or privacy rights or (iii) the operation and content of the Distribution Media.
(b) BGD agrees to indemnify, defend and hold harmless Affiliate (and its respective officers, directors, employees, shareholders and agents) from and against any and all liability claims, losses, damages, injuries or expenses (including reasonable attorneys´ fees) directly or indirectly arising from or relating to any breach of this Agreement or any applicable law or regulation by BGD.
(c) Neither Affiliate nor BGD shall be liable to one another for any special, consequential (even if a party has been informed of the possibility of such damages), incidental, punitive or indirect damages, losses, costs or expenses or any lost or imputed profits of any kind arising out of this Agreement or its termination, however caused, and whether based in contract, tort (including negligence), products liability or any other theory of liability regardless of whether such party has been advised of the possibility of such damages, losses, costs or expenses. Each party hereto waives any claims that these exclusions deprive such party of an adequate remedy. Except for liabilities resulting from BGD’s willful misconduct or recklessness, the liability of BGD shall not exceed the total amount of the commissions actually paid by BGD to Affiliate under this Agreement and each applicable Marketer Specific Terms. Affiliate shall not be liable for any errors or omissions included in the Offers received from BGD. BGD shall not be liable to Affiliate or any other person or entity for (i) any information provided to any person or entity by any Affiliate or any illegal, inappropriate act or act of misconduct on the part of any Affiliate (ii) system downtime of BGD (iii) unauthorized access to, or alteration, theft or destruction of Affiliate´s Distribution Media, data files or systems or programs through accident, fraudulent means or device; or (iv) any claim attributable to errors, omissions or other inaccuracies in the Offers.
7. Confidentiality
In connection with the business relationship contemplated by this Agreement, each party may receive or have access to commercially valuable technical and non-technical confidential or proprietary information of the other party, including information in whatever form, relating to the business of such party that is not generally known or available to others, including source code and documentation for software, trade secrets, know how, customer lists, pricing strategies, marketing and business plans, information concerning a party´s vendors, and such party´s contemplated plans, strategies and prospects ("Confidential Information"). Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law. If disclosure is required by law, the party required to disclose Confidential Information shall reasonably cooperate with the other party (at the other party´s request and expense) so that the other party may preserve the confidentiality of the Confidential Information to the extent reasonably possible. Notwithstanding the foregoing, Confidential Information shall not include, and neither party will be liable for disclosure of, any information received by the receiving party under this Agreement if the information: (a) is or becomes generally available to or known to the public through no wrongful act of the receiving party; (b) was previously known by the receiving party through no wrongful act of receiving party; (c) was independently developed by the receiving party without reference to the Confidential Information; or (d) was lawfully disclosed to the receiving party by a third party under no obligation of confidentiality to the other party.
8. Trademarks and Proprietary Rights
(a) BGD grants Affiliate a limited, non-exclusive, non-transferable, revocable license to use, reproduce and display on the Distribution Media the Offers in accordance with the terms of this Agreement. BGD grants Affiliate a limited, non-exclusive, non-transferable license for the term of this Agreement to use the BGD Technology solely in accordance with the terms of this Agreement. Affiliate grants BGD a limited, non-exclusive, non-transferable, revocable license to use, reproduce and distribute its company name and logo for use in BGD’s promotional materials. Each license granted in this Section 8(a) is hereinafter referred to individually as "Licensed Property."
(b) Neither party shall use the other party´s Licensed Property in a manner that disparages the other party or its products or services, blurs, dilutes or otherwise diminishes the other party´s trade names, trademarks, service marks or other intellectual property, or portrays the other party or its products or services in a false, competitively adverse or poor light. Each party shall comply with the other party´s requests as to the use of the other party´s Licensed Property and will avoid any action that diminishes the value of such marks.
(c) Subject to the limited licenses granted to BGD and Affiliate under Section 8(a), each party owns and shall retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, know how and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express written consent of such party. All data that is collected by BGD while performing its obligations under this Agreement is the property of BGD. BGD currently uses and plans to continue to use data that it collects in an aggregate manner (i.e. that information which is gathered as a group of demographic data, and is not personally or company identifiable).
9. General Provisions
(a) Representations and Warranties. Each party represents and warrants to the other party that: (i) such party has all necessary right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; and (ii) nothing contained in this Agreement or required by such party´s performance hereunder will place such party in breach of any other contract or agreement to which it is bound or violate any applicable law, including obscenity, privacy and defamation laws and (iii) the performance of this Agreement shall not infringe or violate upon the Intellectual Property or privacy rights of any third party. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9(A), NEITHER BGD NOR AFFILIATE MAKE, AND EACH SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE DISTRIBUTION MEDIUM, PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT, AND NON-INFRINGEMENT.
(b) Privacy. Affiliate’s use of the Services (including, without limitation, its utilization of the Distribution Media in connection therewith) (i) shall comply with all applicable laws, rules and regulations and (ii) shall not violate the terms or conditions of (x) any other agreement pursuant to which tags are delivered to the Distribution Media or (y) any Marketer Specific Terms. Each of the Distribution Media shall feature a privacy policy that covers Affiliate’s use of the Services and complies with all applicable laws, rules and regulations.
(c) Jurisdiction and Governing Law. Affiliate consents to the exclusive personal jurisdiction of the state and federal courts located in Illinois and agrees that any claim against BGD shall be brought in the state or federal courts located in Polk County, Florida. The rights and obligations of the parties under this Agreement shall be governed by and construed under the laws of the State of Illinois without reference to conflict of laws principles. Affiliate consents to the personal jurisdiction of the state and federal courts located in Polk County, Florida, and agrees that any lawsuit between Affiliate and BGD shall be filed in this venue.
(d) Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
(e) Relationship. The relationship of BGD and Affiliate established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venture of the other. The detailed operations of BGD under this Agreement are subject to the sole control and management of BGD. The parties acknowledge that, except as set forth in Section 5 hereto, this Agreement sets forth a non-exclusive relationship between the parties. The parties acknowledge that this Agreement sets forth a non-exclusive relationship between the parties.
(f) Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective parties as follows. To BGD at the address listed on its Web site; to Affiliate at the address set forth in the Affiliate Application. Each party shall be responsible to ensure that their respective contact information, including e-mail address and phone number, is updated, current and correct.
(g) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
(h) Amendments and Waivers. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party´s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect. BGD reserves the right to modify this Agreement at any time. Any such modification shall be immediately effective upon the posting of the modified Agreement upon the BGD’s Website, or any successor Web site. Affiliates continued display of Offers pursuant to this Agreement after the posting of such modifications shall constitute acceptance and ratification of all such modifications.
(i) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.
The individual clicking on this link and submitting this application certifies that she/he is authorized to act on behalf of Affiliate and that she/he, on behalf of Affiliate, has read and accepted the terms, conditions and disclosures associated with this Agreement.
The undersigned ("Affiliate"), by submitting the Affiliate Application and this Affiliate Advertising Agreement (collectively, the "Agreement") to Big Golf Discounts USA Inc., a Florida corporation ("BGD"), acknowledges that it wishes to become an Affiliate, and in consideration agrees to be bound by the terms and conditions of this Agreement Affiliate warrants that all information provided in the Affiliate Application is true and accurate. Affiliate understands that BGD has sole discretion over whether to accept or reject Affiliate´s Application, and that this Agreement will not be binding unless Affiliate has been notified of such acceptance.
RECITALS:
A. Affiliate is the owner or authorized operator or representative of the Internet web site(s), email lists, other segments or spaces on such web site(s) and web-based services upon which BGD’s offers (as defined below) may be displayed in connection with and pursuant to the terms of this Agreement.
B. BGD operates a unique “member content” website. BGD actively recruits Affiliate relationships to place performance-based advertising offers in the form of banners, textual links, email campaigns, transactional ads or other relevant media in order to attract new membership to its website. BGD offers a commission on a “per sale” basis to Affiliates under this agreement.
C. This Agreement governs Affiliate’s inclusion in the commission-based program, which it manages and offers, for the purposes of creating and disbursing a commission income for the Affiliate. Commissions are payable on a one-time basis for NEW membership sales only, unless otherwise specified in an addendum to this agreement.
1. Term
BGD reserves the right to terminate this Agreement at any time upon notice to Affiliate via e-mail or via BGD’s Web site. BGD may immediately terminate this Agreement without notice if Affiliate is in breach of any representation, warranty or covenant in this Agreement or any other agreement to which Affiliate and BGD are a party. Affiliate may terminate this Agreement upon thirty (30) days written notice or confirmed email notification to BGD. The rights and obligations contained in Sections 3, 5, 6, 7, 8 and 9 of this Agreement shall survive the termination or expiration of this Agreement.
2. Acceptance
Affiliate at its discretion, and upon approval by BGD, shall determine which banners and/or marketing techniques it will display or utilize for the purpose of attracting new memberships to BGD. Any banner display or other marketing technique utilized by Affiliate shall be displayed or conducted on the terms and conditions set forth in this Agreement. Affiliate shall not alter or modify the membership offer(s) provided by BGD. Any misrepresentation of any product or service of the Company shall be deemed in breach of this agreement.
3. Payment of Commissions to Affiliate
(a) BGD agrees to remit to Affiliate a sales commission payable in the amounts and on the terms as set forth in this Agreement. All payment obligations will be based upon tracking and reporting provided by BGD. Commissions are payable: (i) within 10 days of the end of any calendar month. (ii) Provided the aggregate amount of commissions due to Affiliate equals or exceeds fifty dollars ($50.00). (iii) Any earned but unpaid Advertising Fees shall carry over to the next regularly scheduled payment period.
(b) As used in this Agreement the Specific Terms: (i) "Net Monthly Sales" means the net dollar amount of Memberships sold to Qualified Customers during a calendar month. Net Monthly Sales are calculated exclusive of fraudulently placed orders, refunds and/or cancellations, or any discounts or rebates granted by BGD from time to time. (ii) "Qualified Customer" means any individual or entity that is tracked by BGD Affiliate programming, who clicks through to BGD’s Website via hyperlinks contained within any Offer displayed in accordance with this Agreement, and creates and purchases a viable and real membership purchase with good funds.
(c) In the event an individual or entity visited more than one Affiliate of BGD prior to purchasing a Membership from the Affiliate’s website, email, or other displayed offer, the Affiliate operating the last offer, from which such individual or entity clicked through to the BGD’s website, shall be the only party entitled to receive a commission for that unique customer.
(d) BGD will only remit payment to Affiliate if Affiliate has provided BGD with a correct mailing address and a tax identification number (W-9 form). Affiliate may choose to receive commissions in the form of an offline check via regular mail, or via the PayPal payment system.
4. Responsibilities of BGD
BGD covenants and agrees to use its commercially reasonable best efforts: (a) to provide, monitor and maintain the necessary technology applications required to link Affiliate to its member content website, and track the relevant actions as set forth in this Agreement. BGD Technology shall include the use of tags in HTML/Java or other appropriate languages to enable BGD to serve or provide Offers to Affiliate; (b) to provide Affiliate with product descriptions, GIF or JPEG Images, other product attributes (Membership descriptions, programs and prices). (c) To provide Affiliate, upon request, with real-time access to records that will allow it to monitor the volume of Offers delivered by Affiliate and the revenue produced thereby (subject to billing corrections and adjustments) in accordance with Section 3. All such records, including data, statistical information or other traffic analysis, produced or provided by either party in connection with the performance of this Agreement shall be the sole property of BGD, and any information shall be held strictly confidential by Affiliate.
5. Responsibilities of Affiliate
(a) Affiliate agrees and warrants that it shall: (i) only place Offers on Affiliate´s Distribution Medium and (including Web pages where any Offer appears) in accordance with the terms set forth in this Agreement and in accordance with proper and acceptable email marketing standards (CAN-SPAM ACT of 2004). (ii) Maintain its customer list in a manner that conforms with best practices of permission based solicitation and privacy policies; (iii) position the Offers on each Distribution Media (including any Web page where any Offer appears) in such a manner to assure that the Offers are fully and clearly visible; (iv) upon notification, update Offers in accordance with BGD program specifications.
(b) Affiliate agrees and warrants that it shall not engage in any of the following prohibited activities: (i) violate any applicable law or regulation; (ii) promote or conduct any illegal or fraudulent activity through the Distribution Media or any site linked to the Distribution Media; (iii) send or cause to be sent unsolicited advertising e-mails; (iv) display obscene, offensive, violent or misleading content on the Distribution Media or any site linked to the Distribution Media; (v) provide or allow any incentive based promotion that provides compensation to Qualified Customers, unless specifically authorized by BGD; (vi) engage in any pop-up or pop-under advertising provided, supported or involving any third party to generate impressions, clicks, or transactions; (vii) use any cookie, device, program, robot, iframes, hidden frames, popup windows or any other operation or process that interferes with BGD’s ability to properly identify and track Qualified Customers; (viii) interfere with or seek to improperly influence the referral of an end user to BGD’s Member Content site; (ix) automatically replace or alter any component of the BGD Technology that results in a reduction of compensation earned by BGD or another Affiliate; (x) use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the end user; (xi) utilize the BGD Technology in any manner that alters, changes, substitutes or modifies the content of another Affiliate’s Web site; (xii) use the BGD Technology with other software, whereby the installation and de-installation is not obvious, easy or complete. Licensing and terms of all software downloads and applications of any type must be clearly presented to and accepted by the end user. Software that utilizes the BGD Technology must be clearly marked in such a manner that the end user can identify the Affiliate’s software with an associated behavior that occurs on the end user’s computer, and receive visible notification of such behavior. In addition to any other remedies that may be available, in the event that Affiliate engages in any such prohibited activities, BGD may immediately terminate this Agreement or Affiliate’s display of any particular Offer.
(c) Affiliate shall not reproduce, distribute, republish, sub-license or otherwise make the Offers available to any third party (“Third Party Distribution”) for display on any web site not owned or exclusively operated by Affiliate other than as approved in writing by BGD. An Affiliate seeking approval for such Third Party Distribution shall submit to BGD in writing (i) notice of its intent to broker/redistribute BGD’s Offers on third party sites, (ii) a list of all such third party sites (identified by complete URL) to which Affiliate intends to broker/redistribute the Offers, and (iii) any additional information reasonably requested by BGD regarding Affiliate’s business practices, privacy policies, etc. If Affiliate is generally approved into a third-party Marketer’s program, Affiliate shall only engage in Third Party Distribution with web sites approved in writing by BGD. Any website upon which an Offer is displayed, including Offers displayed in connection with approved Third Party Distribution, shall be included within the definition of Distribution Media.
(d) Affiliate agrees never to alter any BGD tags so as to include any personally identifiable or sensitive information of any visitors in such tags.
(e) Affiliate further agrees and warrants that it will comply with all local, state and federal laws and regulations (including, but not limited to, the “CAN-SPAM” Act, effective January 1, 2004, as may be amended from time to time).
(f) BGD shall notify Affiliate of any complaint received by BGD or any other Affiliate regarding the email practices of Affiliate or any alleged violation by Affiliate of the above warranties. Within forty-eight (48) hours of such notification, Affiliate shall respond to BGD and provide source information as to any questionable emails including, but not limited to, the time, date, IP address and content of the questionable emails. Additionally, as to each individual that agrees to be included in Affiliate’s outbound email solicitations, Affiliate shall maintain the information establishing the time and date that each individual granted such permission. If Affiliate fails to provide source information satisfactory to BGD to demonstrate that Affiliate did not send SPAM email or otherwise breach the above warranties, then, in addition to any and all other remedies available pursuant to this Agreement and under existing law, BGD shall have the right to immediately suspend payment to and further performance of any services by Affiliate.
6. Indemnification; Limitation of Liability
(a) Affiliate agrees to indemnify, defend and hold harmless BGD (and its respective officers, directors, employees, shareholders and agents) from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys´ fees) directly or indirectly arising from or relating to (i) any breach of this Agreement or any applicable law or regulation by Affiliate, (ii) the actual or alleged violation by Affiliate of any person’s or entity’s intellectual property or privacy rights or (iii) the operation and content of the Distribution Media.
(b) BGD agrees to indemnify, defend and hold harmless Affiliate (and its respective officers, directors, employees, shareholders and agents) from and against any and all liability claims, losses, damages, injuries or expenses (including reasonable attorneys´ fees) directly or indirectly arising from or relating to any breach of this Agreement or any applicable law or regulation by BGD.
(c) Neither Affiliate nor BGD shall be liable to one another for any special, consequential (even if a party has been informed of the possibility of such damages), incidental, punitive or indirect damages, losses, costs or expenses or any lost or imputed profits of any kind arising out of this Agreement or its termination, however caused, and whether based in contract, tort (including negligence), products liability or any other theory of liability regardless of whether such party has been advised of the possibility of such damages, losses, costs or expenses. Each party hereto waives any claims that these exclusions deprive such party of an adequate remedy. Except for liabilities resulting from BGD’s willful misconduct or recklessness, the liability of BGD shall not exceed the total amount of the commissions actually paid by BGD to Affiliate under this Agreement and each applicable Marketer Specific Terms. Affiliate shall not be liable for any errors or omissions included in the Offers received from BGD. BGD shall not be liable to Affiliate or any other person or entity for (i) any information provided to any person or entity by any Affiliate or any illegal, inappropriate act or act of misconduct on the part of any Affiliate (ii) system downtime of BGD (iii) unauthorized access to, or alteration, theft or destruction of Affiliate´s Distribution Media, data files or systems or programs through accident, fraudulent means or device; or (iv) any claim attributable to errors, omissions or other inaccuracies in the Offers.
7. Confidentiality
In connection with the business relationship contemplated by this Agreement, each party may receive or have access to commercially valuable technical and non-technical confidential or proprietary information of the other party, including information in whatever form, relating to the business of such party that is not generally known or available to others, including source code and documentation for software, trade secrets, know how, customer lists, pricing strategies, marketing and business plans, information concerning a party´s vendors, and such party´s contemplated plans, strategies and prospects ("Confidential Information"). Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law. If disclosure is required by law, the party required to disclose Confidential Information shall reasonably cooperate with the other party (at the other party´s request and expense) so that the other party may preserve the confidentiality of the Confidential Information to the extent reasonably possible. Notwithstanding the foregoing, Confidential Information shall not include, and neither party will be liable for disclosure of, any information received by the receiving party under this Agreement if the information: (a) is or becomes generally available to or known to the public through no wrongful act of the receiving party; (b) was previously known by the receiving party through no wrongful act of receiving party; (c) was independently developed by the receiving party without reference to the Confidential Information; or (d) was lawfully disclosed to the receiving party by a third party under no obligation of confidentiality to the other party.
8. Trademarks and Proprietary Rights
(a) BGD grants Affiliate a limited, non-exclusive, non-transferable, revocable license to use, reproduce and display on the Distribution Media the Offers in accordance with the terms of this Agreement. BGD grants Affiliate a limited, non-exclusive, non-transferable license for the term of this Agreement to use the BGD Technology solely in accordance with the terms of this Agreement. Affiliate grants BGD a limited, non-exclusive, non-transferable, revocable license to use, reproduce and distribute its company name and logo for use in BGD’s promotional materials. Each license granted in this Section 8(a) is hereinafter referred to individually as "Licensed Property."
(b) Neither party shall use the other party´s Licensed Property in a manner that disparages the other party or its products or services, blurs, dilutes or otherwise diminishes the other party´s trade names, trademarks, service marks or other intellectual property, or portrays the other party or its products or services in a false, competitively adverse or poor light. Each party shall comply with the other party´s requests as to the use of the other party´s Licensed Property and will avoid any action that diminishes the value of such marks.
(c) Subject to the limited licenses granted to BGD and Affiliate under Section 8(a), each party owns and shall retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, know how and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express written consent of such party. All data that is collected by BGD while performing its obligations under this Agreement is the property of BGD. BGD currently uses and plans to continue to use data that it collects in an aggregate manner (i.e. that information which is gathered as a group of demographic data, and is not personally or company identifiable).
9. General Provisions
(a) Representations and Warranties. Each party represents and warrants to the other party that: (i) such party has all necessary right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; and (ii) nothing contained in this Agreement or required by such party´s performance hereunder will place such party in breach of any other contract or agreement to which it is bound or violate any applicable law, including obscenity, privacy and defamation laws and (iii) the performance of this Agreement shall not infringe or violate upon the Intellectual Property or privacy rights of any third party. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9(A), NEITHER BGD NOR AFFILIATE MAKE, AND EACH SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE DISTRIBUTION MEDIUM, PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT, AND NON-INFRINGEMENT.
(b) Privacy. Affiliate’s use of the Services (including, without limitation, its utilization of the Distribution Media in connection therewith) (i) shall comply with all applicable laws, rules and regulations and (ii) shall not violate the terms or conditions of (x) any other agreement pursuant to which tags are delivered to the Distribution Media or (y) any Marketer Specific Terms. Each of the Distribution Media shall feature a privacy policy that covers Affiliate’s use of the Services and complies with all applicable laws, rules and regulations.
(c) Jurisdiction and Governing Law. Affiliate consents to the exclusive personal jurisdiction of the state and federal courts located in Illinois and agrees that any claim against BGD shall be brought in the state or federal courts located in Polk County, Florida. The rights and obligations of the parties under this Agreement shall be governed by and construed under the laws of the State of Illinois without reference to conflict of laws principles. Affiliate consents to the personal jurisdiction of the state and federal courts located in Polk County, Florida, and agrees that any lawsuit between Affiliate and BGD shall be filed in this venue.
(d) Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
(e) Relationship. The relationship of BGD and Affiliate established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venture of the other. The detailed operations of BGD under this Agreement are subject to the sole control and management of BGD. The parties acknowledge that, except as set forth in Section 5 hereto, this Agreement sets forth a non-exclusive relationship between the parties. The parties acknowledge that this Agreement sets forth a non-exclusive relationship between the parties.
(f) Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective parties as follows. To BGD at the address listed on its Web site; to Affiliate at the address set forth in the Affiliate Application. Each party shall be responsible to ensure that their respective contact information, including e-mail address and phone number, is updated, current and correct.
(g) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
(h) Amendments and Waivers. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party´s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect. BGD reserves the right to modify this Agreement at any time. Any such modification shall be immediately effective upon the posting of the modified Agreement upon the BGD’s Website, or any successor Web site. Affiliates continued display of Offers pursuant to this Agreement after the posting of such modifications shall constitute acceptance and ratification of all such modifications.
(i) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.
The individual clicking on this link and submitting this application certifies that she/he is authorized to act on behalf of Affiliate and that she/he, on behalf of Affiliate, has read and accepted the terms, conditions and disclosures associated with this Agreement.
