AFFILIATE
PROGRAM AGREEMENT
This
Agreement (the "Agreement") contains the complete
terms and conditions that apply to your
participation as an affiliate (an "Affiliate" or
"Partner") in the StockMedia.Net Preferred Partners
Program (the "Partners Program") and the
establishment of links from your Web site to our
Web site, currently found at URL
http://www.StockMedia.net. As used in this
Agreement, "we," "us," "our," or "StockMedia" means
StockMedia Corporation, a New York corporation.
"You" or "your" means the applicant, as identified
in your application to StockMedia Corporation.
"Product" means any item offered for sale by us on
our StockMedia.Net Web site. "Site or "Web site"
means either our Web site or yours depending on the
context in which it is used.
THIS
IS A LEGAL AND CONTRACTUALLY BINDING AGREEMENT
BETWEEN YOU AND STOCKMEDIA CORPORATION. YOU
INDICATE YOUR WILLINGNESS TO BE BOUND BY THIS
AGREEMENT BY COMPLETING THE ONLINE APPLICATION AND
CLICKING ON THE "APPLY" BUTTON AT THE BOTTOM OF THE
APPLICATION. THIS AGREEMENT WILL TAKE EFFECT IF AND
WHEN STOCKMEDIA REVIEWS AND ACCEPTS YOUR
APPLICATION AND GIVES YOU NOTICE OF ACCEPTANCE. BY
SUBMITTING YOUR APPLICATION, YOU CERTIFY THAT YOU
HAVE READ AND UNDERSTAND THE TERMS SET FORTH
HEREIN, AND THAT YOU ARE AUTHORIZED TO SUBMIT THIS
APPLICATION.
1.
Participation. Upon our acceptance of your
Partners Program Application submitted by you via
our Web site, you shall be granted the right to
participate in the Partners Program. We will
evaluate your application and will notify you of
our acceptance or rejection of your application. At
the time you apply, your site must be fully
functional and not in "beta" or "under
construction" state. We may reject your application
in our sole discretion for any reason, including
but not limited to, a determination that your site
is unsuitable for or incompatible with, the
Partners Program; that your site incorporates
images or content that is in any way unlawful,
harmful, threatening, defamatory, obscene,
harassing or racially, ethically or otherwise
objectionable; or that your site incorporates any
materials which infringe or assist others to
infringe on any copyright, trademark or other
intellectual property rights of any third party. We
also reserve the right to terminate this Agreement
in the event that any such content is incorporated
on your site after acceptance of your application
and the commencement of the term of this
Agreement.
2.
Links. As the host of a partner site
("Partner Site"), you will be provided a variety of
graphical and textual links, banner advertisements
and button links to our site containing
StockMedia.Net's logo and words identifying
StockMedia.Net (each of these links sometimes being
referred to herein as "Links", or individually as a
"Link") which, subject to the terms and conditions
hereof, you may display on your site. You agree
that in using the Link or Links, you will cooperate
fully with us in order to establish and maintain
such Link or Links. You may place and use any Link
in as many areas on your site as you wish, subject
only to the limitations set forth below. You agree
to display such Links and graphic images
prominently throughout your site. You also agree
that you shall use the Links only in order to link
to our site and to promote your ability to do so
pursuant to this Agreement. You agree that you will
not use our marks or links on any site other than
the site you specified in your application to the
Partners Program or another site we approve
following your acceptance into the Program. You
agree that you shall not present the Links or any
images comprising the Links in combination with any
other name or mark, in connection with your own
goods or services, or in any manner that may
suggest or imply that you or your goods or services
are supplied by, sponsored by, endorsed by or
affiliated with us. You may not alter or change the
images provided by us without our express prior
written consent. You may not create links to our
site other than Links provided by or approved by
us, and you may not use the Links in any way that
may alter the look, feel or functionality of our
site. We will provide all information necessary to
allow you to make appropriate Links from your site
to our site. All Links must be approved by us. We
have the right in our sole discretion to monitor
your site at any time and from time to time to
determine if you are in compliance with the terms
of the Agreement.
3.
Order Processing. We will process orders
placed by customers who follow the Links from your
site to the StockMedia.Net site. We reserve the
right to reject or withhold acceptance or
fulfillment of orders for any reason, including,
but not limited to, the failure of any person or
entity making an order to comply with our terms and
conditions of sale, that may be revised
periodically. We will be solely responsible for all
aspects of order processing and fulfillment. We
will track the volume and amount of sales generated
using the Links from your site to ours and give you
access to our reporting center where you can check
your site’s sales activity on a
[daily] basis. To permit accurate tracking
and reporting, you must ensure that the Links
between your site and our site are properly
formatted. No commission will be paid to you for
sales made via Links which were not in the proper
format provided to you by us.
4.
Commissions. Only Products that are (i) sold
by us, (ii) purchased by a user linking to our site
from your site pursuant to a Link ("Linked User"),
(iii) delivered by us via download or otherwise,
and (iv) for which we have received full payment
will qualify for a commission ("Commission") (each
a "Qualifying Purchase" and collectively,
"Qualifying Purchases"). No Commission will be paid
if the visitor to our site cannot be tracked by our
system or if the visitor to our site later accesses
our site by a means other than the use of the Link.
You are due a Commission only if your site is the
Affiliated Site from which the purchaser most
recently linked to our site. Commission rates
("Commission Rates") will be based on the aggregate
amount actually paid to us for Qualifying Purchases
of the Products for all sales, excluding amounts
collected by us for sales taxes, duties, 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: [to be
added]
5.
Commission Payment. Subject to Section 4
above, we will pay you Commissions on a quarterly
basis. Within approximately 45 days following the
end of each calendar quarter during which this
Agreement is in place, we will send you a check for
the Commissions you earned on Net Sales in the
preceding quarter, as well as a report summarizing
the sales activity on which Commissions are
payable. If Commissions payable to you for any
period are less that $100.00, we will hold those
Commissions until the total amount due is at least
equal to $100.00. If returns, refunds or other
events require recalculation of Net Sales for a
period in which Commissions have already been paid,
we will offset from Commissions payable in
succeeding quarters by the amount which Commissions
are reduced by such recalculation. If there are no
subsequent Commissions payable, we will send you an
invoice for reimbursement of the overpaid
Commissions, and you agree to pay any such invoice
within 30 days of receipt of such
invoice.
6.
Policies and Pricing. Customers who buy
Product(s) through the Partners Program are
customers of StockMedia, and all purchases and
related transactions are subject to StockMedia's
terms and conditions of sales, rules, policies, and
operating procedures, all of which StockMedia may
adopt and modify in its sole discretion from time
to time. You do not have any authority to make any
sale or representation or to act a distributor,
dealer, or reseller on behalf of StockMedia or to
bind StockMedia in any way, and you agree that you
shall not do or hold yourself out as having
authority to do either. Accordingly, you may not
post StockMedia's prices for its Products, its
policies or terms, its availability information, or
similar information on your site.
7.
Use of StockMedia Logos and
Trademarks.
A.
WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE,
REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH
THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF
THIS AGREEMENT AND (ii) SOLELY IN CONNECTION
WITH SUCH LINKS, TO USE THE STOCKMEDIA.NET
TRADEMARK AND LOGO AND SIMILAR IDENTIFYING
MATERIAL RELATING TO US (BUT ONLY IN THE FORM(S)
THEY ARE PROVIDED TO YOU) (COLLECTIVELY THE
"LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF
LINKING YOUR SITE TO OUR SITE, WHERE YOUR USERS
CAN PURCHASE STOCKMEDIA PRODUCTS. YOU MAY NOT
ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS
IN ANY WAY. YOU ARE ONLY ENTITLED TO USE THE
LICENSED MATERIALS TO THE EXTENT THAT YOU ARE A
MEMBER IN GOOD STANDING OF THE PARTNERS
PROGRAM.
B.
You shall not make any specific use of any
Licensed Materials for purposes other than
selling StockMedia Products on your site for
StockMedia, without first submitting a sample of
such to us and obtaining the prior written
consent of your Partners Program Relationship
Manager, which consent shall not be unreasonably
withheld. You agree not to use the Licensed
Materials in any manner that is disparaging or
that otherwise portrays us in a negative light.
We reserve all of our rights in the Licensed
Materials and our other proprietary rights. We
may revoke your license at any time, upon
written notice to you.
C.
You grant us a non-exclusive license to use your
names, titles, logos, trademarks, trade names,
and service marks (collectively the "Affiliate
Trademarks") to advertise, market, promote and
publicize in any manner the Partners Program,
your participation in the Partners Program and
to promote StockMedia.Net. StockMedia.Net shall
not be required to use the Affiliate Trademarks
or to advertise, market, promote or publicize
your site. You hereby represent and warrant that
you are the sole and exclusive owner of the
Affiliate Trademarks and have the right and
power to grant to us the license to use the
Affiliate Trademarks in the manner contemplated
herein, and such grant does not or will not (i)
breach, conflict with or constitute a default
under any agreement or other instrument
applicable to you or binding upon you, or (ii)
infringe upon any trademark, trade name, service
mark, copyright, or other proprietary right of
any other person or entity.
D.
"Approved Publishers’ Images" are certain
names, marks and images of manufacturers and
other third-parties that have authorized
StockMedia to make their names, marks and images
available to you so that you can promote the
sale of their products by us in connection with
this Agreement. All Approved Publishers’
Images are the property of their respective
owners. You may use only those Approved
Publishers’ Images that StockMedia
authorizes you to use, and your use of those
Approved Publishers’ Images must at all
times comply not only with all requirements of
StockMedia but also all requirements of the
owner(s) of those images. You may not use any
Approved Publishers’ Image, including
without limitation any use that involves
reproducing, modifying, or displaying an
Approved Publishers’ Image, without the
express prior written consent of both StockMedia
and the owner of that Approved Publishers’
Image. You may not use any image appearing on a
StockMedia Web site other than the Licensed
Materials as provided in Section 7(A ) or an
Approved Publishers’ Image for which you
have the prior written authorization as provided
in this Section 7(D). You may use Approved
Publishers’ Images only for the purpose of
promoting the sale of the owner’s
associated Product(s) by StockMedia pursuant to
this Agreement and the Partners Program. You may
not alter or modify any Approved
Publishers’ Image, and you may not use any
Approved Publishers’ Image with any good or
service other than the good or service the owner
associates with that Image.
8.
Responsibility for Your Site. You will be
solely responsible for the development, operation
and maintenance of your site, for all materials
that appear on your site, and for all business you
conduct on your site. You shall also be responsible
for ensuring that materials posted on your site do
not violate or infringe upon copyrights, right of
publicity, trademark rights or other rights of us
or any third-party. You are responsible for
ensuring that your business and site comply with
all applicable laws, regulations, and ordinances,
and that your site as well as the materials posted
on your site are not defamatory, libelous, false or
misleading, or otherwise illegal. You must have
express permission to use another party’s
copyrighted materials, and you also must have
express prior written permission to use
another’s name, portrait, voice or likeness.
You are also responsible for the technical
operation of your site and all related
equipment.
9.
Confidentiality. We may disclose to you
certain information as a result of your
participation as part of the Partners Program,
which information we consider to be confidential
(herein referred to as "Confidential Information").
For purposes of this Agreement, the term
"Confidential Information" shall include, but not
be limited to, (i) any modifications to the terms
and provisions of this Agreement made specifically
for you and your site and not generally available
to other members of the Partners Program, (ii) Web
site, business and financial information relating
to StockMedia, (iii) customer and vendor lists
relating to StockMedia, and (iv) pricing and sales
information for StockMedia and any members of the
Partners Program other than you. Confidential
Information shall also include any information that
we designate as confidential during the term of
this Agreement. You agree not to disclose any
Confidential Information and that such Confidential
Information shall remain strictly confidential and
secret and shall not be utilized, directly or
indirectly, by you for your own business purposes
or for any other purpose except and solely to the
extent that any such Confidential Information is
required by law or legal process.
10.
Term and Termination. The term of this
Agreement will begin upon our acceptance of your
Partners Program Application and will end when
terminated by either party in accordance with this
Agreement. Either party may terminate this
Agreement at any time, with or without cause, by
giving the other written notice of termination
(electronic communications such as e-mail shall
qualify as written notice). If we terminate this
Agreement because you are in breach of a material
term hereof, we may withhold Commissions payable to
you in an amount equal to the amount by which we
believe in good faith that we have been damaged by
your breach, including prospective damages and
damages resulting from claims by third-parties
caused by such breach. If this Agreement is
terminated on any other basis, you are entitled to
Commissions earned on Net Sales for which payment
has been received by us on or before the effective
date of termination. All licenses granted herein
terminate automatically upon termination of this
Agreement, and the licensee of any subject matter
shall immediately cease use of any Licensed
Materials. In addition, each party may terminate
any license in part at any time by giving the other
written notice that specified licensed subject
matter may no longer be used, or may no longer be
used in a particular manner. Without limiting the
generality of the foregoing, you agree to remove
all Links from your Web site to our Web site and to
cease your use or display of the Licensed Marks and
Approved Publishers’ Images immediately upon
the termination of this Agreement.
11.
Representations and Warranties. You hereby
represent and warrant to use as follows:
A.
This Agreement has been duly and validly
executed and delivered by you and constitutes
your legal, valid, and binding obligation,
enforceable against you in accordance with its
terms.
B.
Your execution, delivery, and performance of
this Agreement and the consummation 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.
You are the sole and exclusive owner of the
Affiliate 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 mark, 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.
12.
Disclaimers. We make no express or implied
warranties or representations with respect to the
Partners Program or any Product(s) or other items
sold through the Partners Program or otherwise on
our Web site, and WE EXPRESSLY DISCLAIM ALL EXPRESS
AND IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR
PURPOSE. In addition, we make no representation or
warranty that the operation of our Web site, the
Links, or our procedures and systems tracking sales
generated by your site will be uninterrupted or
error-free, and we will not be liable for the
consequences of any interruptions or
errors.
13.
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
PARTNERS PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE
MONETARY LIABILITY ARISING WITH RESPECT TO THIS
AGREEMENT AND THE PARTNERS PROGRAM SHALL NOT IN ANY
EVENT EXCEED THE TOTAL COMMISSIONS PAYABLE TO YOU
UNDER THIS AGREEMENT.
14.
Indemnification. You hereby agree to
indemnify, defend and hold harmless StockMedia, its
shareholders, officers, directors, employees,
agents, affiliates, successors and assigns, from
and against any and all third-party actual or
threatened claims, losses, liabilities, damages or
expenses (including attorneys’ fees and costs)
of any nature whatsoever incurred or suffered by us
(collectively the "Losses"), in so far as such
Losses (or actions in respect thereof) arise out
of, are related to, or are based in any way on (i)
any claim or threatened claim that our use of the
Affiliate Trademarks infringes on the rights of any
third-party; (ii) the breach of any representation
or warranty made by you herein; (iii) any claim
related to your Web site, the conduct of your
business, or your goods or services; (iv) your
violation of any law, regulation, ordinance or
applicable policy of or agreement with any Licensed
Marks or Approved Publishers’ Images, or your
infringement, misappropriation or other violation
of any third-party intellectual property
right.
15.
General Provision.
A.
Entire Agreement. This Agreement is the entire
Agreement between the parties with respect to
its subject matter, and it supersedes all prior
agreements, representations and understandings,
whether express or implied and whether oral or
written.
B.
Modification. We may modify any of the terms and
conditions contained in this Agreement, at any
time and in our sole discretion. Notice of any
change by e-mail, to your address on our
records, or the posting on our Web site of a
change notice or a new agreement designated by
us to be applicable to you or a group of persons
or entities including you, is agreed to
constitute sufficient notice of a binding
modification of this Agreement. If any
modification is unacceptable to you, your only
recourse is to terminate this Agreement pursuant
to Section 10 of this Agreement. Your continued
participation in the Partners Program following
our posting of a change notice or new agreement
on our Web site will constitute binding
acceptance of the modified terms.
C.
Governing Law. This Agreement will be governed
by the laws of the United States and the State
of New York. Any action relating to this
Agreement must be brought in the federal or
state courts located in New York, New York and
you irrevocably consent to the personal
jurisdiction and venue of such
courts.
D.
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.
E.
Waiver. 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.
F.
Relationship of Parties. You and StockMedia are
independent contractors, and nothing in this
Agreement will create any partnership, joint
venture, agency, franchise, sales
representative, or employment relationship
between the parties. You will have no authority
to make or accept any offers, enter into any
contracts, or make any representations on our
behalf, or to act as a distributor, seller, or
reseller of any Product.
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