iEntry.com - Affiliate Program Agreement
This iEntry.com Affiliate Program Agreement (the "Agreement") contains the complete terms and conditions that apply to your participation as an affiliate in the Affiliates Program of iEntry.com (the "Program") and the establishment of links from your affiliate Web site to our Web site www.iEntry.com. As used in this Agreement: (i) "we" or "us" means iEntry, Inc.; (ii) "you" or "your" means the applicant or, upon acceptance of your application as provided in Section 1, the affiliate, (iii) "our web site" refers to the iEntry.com web site currently located at www.iEntry.com (iv) "your web site" refers to the World Wide Web site from which you will link to our web site; (v) "user" refers to a customer who links from your web site to our web site. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND US.
1 .ENROLLMENT IN THE PROGRAM
To begin the enrollment process, you must submit a complete Affiliate Program Application (the "Application") via our web site. We will evaluate your Application and notify you of the acceptance or rejection of your Application. We may reject your Application if we determine (in our sole discretion) that your web site is unsuitable for the Program for any reason, including, but not limited to, if your web site incorporates images or content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable (collectively "Content Restrictions"), such as web sites that facilitate or promote illegal activity; depict sexually explicit images; promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; or incorporate any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights. If your Application is rejected you may not participate in the Program. If accepted, you will be responsible for all of your own expenses incurred in connection with your participation in the Program. In addition, we may reject your Application after acceptance, or rescind our acceptance of your Application at any time in the event of changed conditions.
2. LINKING TO OUR WEB SITE
As an affiliate web site ("Affiliate Site"), we will make available to you subscription forms (and related graphics) to our web site and/or text links to our web site containing our Logo (as defined below) and/or words identifying us (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 web site.
We will be responsible for providing all information necessary to allow you to make appropriate Links from your web site to our web site. In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Link or Links. You shall display such Links prominently throughout your web site as you see fit.
Each Link connecting users of your web site to our web site will in no way alter the look, feel or functionality of our web site. We have the right in our sole discretion to monitor your web site at any time and from time to time to determine if you are in compliance with the terms of this Agreement.
3. ORDER PROCESSING
We will process all subscriptions for Newsletters placed by users.
We reserve the right to reject subscriptions that do not comply with certain requirements that we periodically may establish.
We will be solely responsible for all aspects of Subscription processing and fulfillment, including subscription confirmation and entry, newsletter sending, cancellations, and related customer service.
We will track the volume and amount of Subscriptions generated by users and will make unaudited reports summarizing this subscription activity available to you through our web site.
The form, content, and frequency of these reports may vary from time to time in our sole discretion.
To permit accurate tracking, reporting and commission accrual, you must ensure that the Links between your web site and our web site remain properly formatted.
We reserve the right to change the price paid for subscriptions at any time in our sole discretion without notice.
Due to privacy concerns, no personal information on any customer of ours will be provided to you.
4. COMMISSIONS
We will pay you a commission equal to $0.30 (the "Commission Rate") for each unique, validated and confirmed Subscription.
Only Subscribers who sign up using your web site through Links to our web site will be paid.
The Commission Rate is subject to change at any time or from time to time, in our sole discretion. You will be notified of any change in the Commission Rate pursuant to the provisions of Section 17.4 of this Agreement.
A commission will only be paid if the user is tracked by our internal online ordering system from the time the Link is initiated on your web site to the time of the subscription confirmation.
No commission will be paid if the user cannot be tracked by our internal online ordering system.
5. COMMISSION PAYMENT
We will pay your commissions to you on a monthly basis.
Approximately ten (10) days following the end of each month, we will send you a check for the commissions earned on unique address signup that we recieved during that month, less any taxes on such commissions that we are required by law to withhold.
However, if the commissions payable to you for any month are less than $20.00 (the "Commission Payment Floor"), we will hold those commissions until the total amount due is at least equal to the Commission Payment Floor.
The Commission Payment Floor is subject to change at any time or from time to time, in our sole discretion.
You will be notified of any change in the Commission Payment Floor pursuant to the provisions of Section 17.4 of this Agreement.
6. NON-EXCLUSIVE LIMITED LICENSE AND USE OF IENTRY, INC. LOGOS AND TRADEMARKS.
You may display the iEntry, Inc. logo (the "Logo") on the homepage, or other prominent location, of your web site and we hereby grant you a non-exclusive license to use the Logo in such manner and to otherwise display the Logo and the iEntry, Inc. trademark (collectively, the "Licensed Materials") on your web site. We may terminate the foregoing license if, in our sole discretion, your use of the Licensed Materials does not conform to our standards. You agree that title to and ownership of the Licensed Materials shall remain with us at all times. You shall use the Licensed Materials exactly in the form provided from time to time and in conformance with any trademark usage policies that we may establish. You may not form any combination marks with the Licensed Materials. You shall not take any action inconsistent with our ownership of or goodwill associated with the Licensed Materials. You agree that any benefits and goodwill arising from your use of the Licensed Materials shall inure solely to our benefit.
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 all other intellectual property rights. We may revoke your license at any time by giving you notice in accordance with the provisions of Section 17.4 of this Agreement. You shall obtain no rights in or to the Licensed Materials in the event of termination of this Agreement.
You are only entitled to use the Licensed Materials to the extent you are a participating affiliate in good standing in the Program and you shall not make any use of the the Licensed Materials for purposes other than promoting newsletter subscriptions in accordance with the Program.
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.
This license shall terminate upon the effective date of the expiration or termination of this Agreement.
7. NON-EXCLUSIVE LIMITED LICENSE AND USE OF AFFILIATES LOGOS AND TRADEMARKS
You grant us a non-exclusive license to utilize your names, titles, logos and trademarks (collectively the "Affiliate Trademarks"), to advertise, market, promote and publicize in any manner our rights hereunder or your participation in the Program. Notwithstanding anything herein to the contrary, we shall not be required to so advertise, market, promote or publicize. 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 same in the manner contemplated in this Agreement, 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.
This license shall terminate upon the effective date of the expiration or termination of this Agreement.
8. RESPONSIBILITY FOR YOUR SITE
You will be solely responsible for the development, operation and maintenance of your web site, all activities relating to your web site and for all materials that appear on your web site. We shall have no responsibility for the development, operation or maintenance of your web site or for any materials that appear on your web site. You shall also be solely responsible for ensuring that materials posted on your web 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), and ensuring that materials posted on your web site are not libelous or otherwise illegal. You must have express permission to use another party's copyrighted or other proprietary material on your web site. We will not be responsible if you use another party's copyrighted or other proprietary material in violation of the law. We disclaim all liability for such matters. Further, you will indemnify and hold us harmless from all liability, claims, damages, and expenses (including, without limitation, attorneys' fees and expert witness fees) relating to the development, operation, maintenance, and contents of your web site.
9. YOUR REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant to us that 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; and that the execution, delivery and performance by you of this Agreement are within your legal capacity and power, have been duly authorized by all requisite action on your part, require the approval or consent of no other persons; and neither violate nor constitute a default under the provision of any law, rule, regulation, order, judgement or decree to which you are subject or which is binding upon you, or the terms of any other agreement, document or instrument applicable to you or binding upon you.
10. AGREEMENT TERM / CANCELLATION / TERMINATION
The term of this Agreement will begin upon our acceptance of your Application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination.
Notice by e-mail to your address on our records is considered sufficient notice for termination of this Agreement. If this Agreement is terminated because you have violated the terms of this Agreement or if this Agreement is terminated because your web site is unsuitable for the Program as set forth in Section 1, you are not eligible to receive any commission payments, even for commissions earned prior to the date of termination.
If this Agreement is terminated for any other reason, you are only eligible to earn a commission on Subscriptions occurring during the term of this Agreement. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
11. AGREEMENT 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, is considered sufficient notice for notifying you of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available commissions, commission schedules, payment procedures, and Program rules. All such modifications shall take effect forty-eight (48) hours after we notify you as provided above, unless we indicate otherwise. 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 web site, will constitute binding acceptance of the change.
12. LIMITATIONS OF LIABILITY
We will have no liability of any sort arising from any interruptions or errors on our web site. WE WILL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE PROGRAM, EVEN IF WE WERE ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. Further, our aggregate liability arising under or with respect to this agreement or the Program shall in no event exceed the total commissions paid or payable by us to you under this Agreement.
13. WARRANTY DISCLAIMER
WE MAKE NO WARRANTIES OR REPRESENTATIONS OF ANY KIND WITH REGARD TO THE PROGRAM, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, OR ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT OUR WEB SITE WILL BE ERROR FREE, FUNCTION WITHOUT INTERRUPTION OR THAT ANY ERRORS WILL BE CORRECTED. IF AS A MATTER OF LAW WE MAY NOT DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMISSIBLE UNDER APPLICABLE LAW.
14. CONFIDENTIALITY
We may disclose to you certain information as a result of your participation in the Program, which information we consider to be confidential (referred to in this Agreement as "Confidential Information"). For purposes of this Agreement, the term "Confidential Information" will include, but not be limited to, any modifications to the terms and provisions of this Agreement made specifically for your web site and not generally available to other members of the Program, web site, business and financial information relating to our customers; vendor lists relating to us; and pricing and sales information for us and any members of the 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 information is generally known or available to the public or if the same is required by law or legal process. You agree that you will not issue a press release or public announcement pertaining to the relationship or transactions contemplated by this Agreement at any time, unless iEntry, Inc. expressly agrees otherwise and agrees to the form and substance of such press release or announcement. WE MAKE NO WARRANTY, EXPRESSED OR IMPLIED, WITH RESPECT TO ANY INFORMATION DELIVERED HEREUNDER, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR FREEDOM FROM PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENTS, WHETHER ARISING BY LAW, CUSTOM OR CONDUCT, OR AS TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION AND WE SHALL NOT HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON RESULTING FROM YOUR OR SUCH THIRD PERSON'S USE OF THE INFORMATION.
15. INDEMNIFICATION
You hereby agree to indemnify, defend and hold harmless us and our stockholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all 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 or are based 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, warranty or covenant made by you in this Agreement; or (iii) or any claim related to your web site.
16. 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 COMPETITIVE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIREABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
17. GENERAL PROVISIONS
17.1 Governing Law.
This Agreement will be governed and construed in accordance with the laws of the State of Kentucky as applied to agreements made, entered into and performed entirely in the State of Kentucky by Kentucky residents, notwithstanding your actual residence. Both parties hereby submit to the personal jurisdiction of the federal and state courts located in Lexington, Kentucky, and further agree that any cause of action arising under this Agreement shall be brought in such courts.
17.2 Severability.
If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
17.3 Independent Contracts.
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 the parties. 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 web site or otherwise, that reasonably would contradict anything in this Section.
17.4 Notices.
Any notices hereunder shall be given if to us at: iEntry Inc., 152 East Renyolds Rd. Suite 102, Lexington, KY 40517, Attn: Affiliate Program Coordinator, with a copy Attn: Legal Dept at the same address, and if to you at the address specified in your Application, or at such other address as each party shall specify in writing from time to time in accordance with the procedures set forth in this Section. Notice shall be deemed given: upon personal delivery; if sent by fax or e-mail, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, five (5) days after the date of mailing.
17.5 Non-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 enforceable against the parties and their respective successors and assigns.
17.6 Entire Agreement; Waiver.
This Agreement sets forth the entire and final understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter hereof. Except as set forth in Section 11, this Agreement may be changed only by a writing signed by both parties. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
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