BBBVS Affiliate Program
Please
begin the application process by carefully reading the following agreement:
NOTICE. Carefully read and
review the following Affiliate Agreement (the "Agreement"). This
Agreement provides the terms and conditions of the relationship between you
(the individual or entity) (the "Referring Party"), and the Better
Business Bureau Video Series ("BBBVS"). Once you have read and
reviewed this Agreement, acknowledge your understanding of, agreement to and
acceptance of the AgreementÕ terms and conditions by "clicking" the
"Accept" button set forth below.
You
acknowledge and understand that BBBVS may deny your application for any reason
and that BBBVS may not disclose such reason to you.
AFFILIATE AGREEMENT
RECITALS
The
parties desire that (i) the Referring Party place the BBBVS Link on the
Referring Party Site; such that any Internet user may access the Services
through the Referring Party Site by clicking through the BBBVS Link, and (ii)
BBBVS pay the Referring Party a percentage of the net sales of the
Services. In consideration of the
mutual promises contained herein, and other valuable and sufficient
consideration, the receipt of which is hereby acknowledged, BBBVS and the
Referring Party agree as follows:
TERMS
1. DEFINITIONS. The following definitions shall apply to the
Agreement:
1.1 "Company
Information"
means collectively the Confidential Information and Trade Secrets. Company
Information also includes information which has been disclosed to the
disclosing party by a third party, and that the disclosing party is obligated
to treat as confidential or secret.
1.2. "Confidential
Information"
means any and all information related to the services and/or business of a
party that does not constitute a Trade Secret and that is treated as
confidential or secret by the party (that is, it is the subject of efforts by
the disclosing party that are reasonable under the circumstances to maintain
its secrecy) including, but not limited to, the terms and conditions of this
Agreement. "Confidential Information" shall not include information
(a) already lawfully known to or independently developed by the receiving
party, (b) disclosed in published materials, (c) generally known to the public,
(d) lawfully obtained from any third party without any obligation of
confidentiality, or (e) required to be disclosed by law.
1.3. "BBBVS
Link"
means the graphical or textual link(s) which are capable of hyperlinking to the
BBBVS Site.
1.4. "BBBVS
Site"
means, a World Wide Web site owned, managed, operated and maintained by BBBVS,
that is available to any Internet user with a major branded browser through
such URL as may be chosen by BBBVS in its sole discretion, and through which
BBBVS provides, among other things, the Services.
1.5. "Initial Term" shall have the meaning
set forth in Section 6.1 herein.
1.6. "Referral" means each instance in
which BBBVS receives a fee from an Internet user, pursuant to such Internet
user purchasing from the BBBVS Site a consumer credit product or other BBBVS
product; provided, that such Internet user (1) initially accessed and visited
the BBBVS Site by clicking through the BBBVS Link located on the Referring
Party Site, and (2) purchased such consumer credit product or other BBBVS
product available through the BBBVS Site during such visit (same session) to
the BBBVS Site.
1.7. "Aff-login
Site"
means the web site at http://www.bbbvideo.com/affiliate/login.php, which the Referring Party
will need to access to review its sales reports and to obtain the guidelines to
establish and change the BBBVS Link.
1.8. "Referral Payment" shall have the meaning
set forth in Section 2.1(c).
1.9. "Referring
Party Site"
means, collectively, all pages of the Referring Party's various Web sites
available through the World Wide Web (and any replacement or successor
thereto).
1.10. "Renewal Date" shall have the meaning
set forth in Section 6.1 herein.
1.11. "Renewal Term(s)" shall have the meaning
set forth in Section 6.1 herein.
1.12. "Services" shall be limited to
presenting through a World Wide Web site consumer products and related content,
products and services (including, but not limited to, the following products:
BBB Video Series titles on DVD and VHS, news articles, video production,
duplication) for the accessing, ordering and purchasing thereof by an Internet
user which may visit such Site.
1.13. "Term" means the Initial Term
and any Renewal Term(s) of this Agreement as defined in Section 6.1 herein.
1.14. "Territory" means the United
States.
1.15. "Trade
Secrets"
means all non-public information whether tangible or intangible related to the
services or business of the disclosing party that (a) derives economic value,
actual or potential, from not being generally known to or readily ascertainable
by other persons who can obtain economic value from its disclosure or use; and
(b) is the subject of efforts by the disclosing party that are reasonable under
the circumstances to maintain its secrecy, including, without limitation, (i)
marking any information reduced to tangible form clearly and conspicuously with
a legend identifying its confidential or trade secret nature; (ii) identifying
any oral communication as confidential or secret immediately before, during, or
after such oral communication; or (iii) otherwise treating such information as
confidential or secret. Assuming the criteria in clauses (a) and (b) above are
met, Trade Secrets includes information, without regard to form, including, but
not limited to, technical and non-technical data, formulas, patterns, designs,
compilations, computer programs and software, devices, inventions, methods,
techniques, drawings, processes, financial data, financial plans, product
plans, lists of actual or potential customers and suppliers which are not
commonly known by or available to the public, research, development, and
existing and future products.
2. OBLIGATIONS OF THE PARTIES.
2.1. Duties and
Obligations of the BBBVS. In connection with this Agreement, BBBVS shall have the
following duties and obligations:
(a) License. Subject to the
provisions of Section 2.3 herein, BBBVS hereby grants to the Referring Party a
nonexclusive, non-sublicenseable, nontransferable, fully paid license during
the Term to use, reproduce and display throughout the Territory the BBBVS Link
exclusively on the Referring Party Site, only to the extent that such use is
reasonably necessary for the Referring Party to perform its obligations under
this Agreement. BBBVS will make available on the Aff-login Site at least one
BBBVS Link for use by the Referring Party on the Referring Party Site.
(b) The Services. BBBVS shall provide,
throughout the Term, the Services through the BBBVS Site. BBBVS shall be
responsible for the design, creation, management and maintenance of such BBBVS
Site for the purpose of providing Internet users with access to the Services.
(c) Monthly Referral
Payment.
BBBVS shall pay to the Referring Party a Referral Payment calculated as a
percentage ("Net Revenue Percentage") as set at twenty (20)
percent of the fees received by BBBVS from Referrals during such month (the
"Referral Payment"). Such fee shall be paid within thirty (30) days
following the end of each calendar month by check mailed to the Referring Party
at the address provided in the Referring Party's application and shall be
accompanied by a report supporting each Referral Payment. If the Referral
Payment does not exceed twenty dollars ($20.00) for any month (the
"Monthly Minimum"), BBBVS shall be entitled to accrue but not pay
such Referral Payment until it exceeds the Monthly Minimum. BBBVS reserves the
right to set the Net Revenue Percentage for any new Services made available
after the Effective Date. BBBVS will notify Referring Party of the Net Revenue
Percentage applicable to any new Service.
(d) Returns. If an Internet user
disputes or returns any consumer credit product obtained through the BBBVS Site
or is otherwise entitled to a refund of any fees which BBBVS has received and
has credited towards the Referring Party's Referral Payment, such refund shall
be deducted from the Referral Payment in the current month; provided, however,
if there are no subsequent Referral Payments or the Referring Party has a
negative Referral Payment balance, BBBVS shall submit an invoice to the
Referring Party for such balance and the Referring Party shall pay such invoice
immediately upon receipt of such invoice.
2.2. Duties and
Obligations of the Referring Party. In connection, the Referring Party shall have
the following duties and obligations:
(a) Site Maintenance. The Referring Party
must setup and use the BBBVS Consumer Service Link strictly in accordance with
the processes found at the Aff-login Site. Any deviation from such processes
will be considered a material breach of this Agreement and may preclude the
Referring Party from receiving Referral Payments. The Referring Party will
provide and maintain the BBBVS Link on the Referring Party Site on a
twenty-four (24) hours, seven (7) days per week basis, to the same extent that
the other portions of the Referring Party Site are available, so that any
Internet user who may access the Referring Party Site may click through to the
BBBVS Site via the BBBVS Link and thereby access the Services.
(b) The Referring
Party Site.
The Referring Party shall be responsible for the operation, maintenance and
support of the Referring Party Site. The Referring Party shall be responsible
for the creation and posting of any descriptions on the Referring Party Site
regarding the Services and ensuring that such descriptions are accurate,
complete and appropriate. The Referring Party is also responsible for ensuring
that such descriptions do not violate any rights (including any intellectual
property rights) of any other party and do not violate any law or regulation.
(c) Referring Party
Content.
The Referring Party does not and shall not provide any content that is (i)
defamatory, obscene, harmful to minors, child pornographic; (ii) contains any
viruses, Trojan horses, worms, time bombs, cancelbots or other computer
programming routines that are intended to damage, detrimentally interfere with,
surreptitiously intercept or expropriate any system, data or personal
information; or (iii) is materially false, misleading or inaccurate.
2.3. Trademark
Restrictions.
Title to and ownership of the BBBVS Link shall remain with BBBVS. Referring
Party agrees to use the BBBVS Link exactly in the form provided and in
conformance with any trademark usage policies provided to the Referring Party.
BBBVS may terminate the trademark license granted in Section 2.1(a) if, in its
reasonable discretion, the use of the BBBVS Link fails to comply with any such
policies, or affects the quality associated with the BBBVS Link or the
associated goodwill by BBBVS; alternatively, instead of terminating the license
in total, BBBVS may, in its sole discretion, specify that certain pages of the
Referring Party Site may not contain the BBBVS Link. Title to and ownership of
the BBBVS Link shall remain with BBBVS. The Referring Party shall not take any
action inconsistent with BBBVS's ownership of the BBBVS Link, and any benefits
accruing from use of the BBBVS Link shall automatically vest in BBBVS.
2.4. Non-exclusive
Engagement.
The Referring Party hereby acknowledges and agrees that the relationship
between the parties contemplated hereunder constitutes a non-exclusive engagement,
and that BBBVS may, in its sole discretion, provide the Services, or services
and functions similar to the Services and any other services or functions, if
any, being provided by BBBVS under this Agreement to any third parties in
BBBVS' sole discretion.
2.5. Customers. The Referring Party
agrees that the Internet users who access the Services, including, but not
limited to, those who purchase products or services through the BBBVS Site,
will be deemed customers of BBBVS, and the Referring Party agrees not to
represent otherwise. The Referring Party agrees that the Internet user's that
access the BBBVS Site are subject to' rules and policies.
2.6. Press Releases. Neither party to this
Agreement may issue a press release or public announcement regarding this
Agreement without obtaining the other party's prior approval.
3. REPRESENTATIONS AND WARRANTIES.
3.1. BBBVS. BBBVS represents and
warrants to the Referring Party that:
(a) BBBVS has the
power and authority to enter into and perform its obligations under this
Agreement;
(b) (b) BBBVS has the
right to grant or otherwise permit the Referring Party to access the BBBVS Site
and to use the BBBVS Link, and is aware of no claims by any third parties
adverse to any intellectual property rights. If BBBVS' intellectual property
rights are alleged or held to infringe the intellectual property rights of a
third party, BBBVS shall, at its own expense, and in its sole discretion,
either (i) procure for the Referring Party the right to continue to use the
allegedly infringing intellectual property or (ii) replace or modify the
intellectual property to make it non-infringing; provided, however, that if
neither option is possible or economically feasible and if the inability to use
such intellectual property would cause a material breach of this Agreement (as
determined by the Referring Party), the Referring Party may immediately
terminate this Agreement upon written notice to BBBVS.
3.2. The Referring
Party.
The Referring Party represents and warrants to BBBVS that:
(a) The Referring Party
has the power and authority to enter into and perform its obligations under
this Agreement;
(b) The Referring Party
and the Referring Party Site shall at all times comply with all local, state
and federal laws, rules and regulations and all agreements applicable to the
Referring Party Site and the Referring Party's performance under this
Agreement, and the Referring Party and the Referring Party Site shall not
violate any rights of any third party.
(c) The Referring Party
has the right to grant or otherwise permit BBBVS to access the Referring Party
Site, and is aware of no claims by any third parties adverse to any of such
intellectual property rights. If the Referring Party's intellectual property
rights are alleged or held to infringe the intellectual property rights of a
third party, the Referring Party shall, at its own expense, and in its sole
discretion, either (i) procure for BBBVS the right to continue to use the
allegedly infringing intellectual property or (ii) replace or modify the
intellectual property to make it non-infringing; provided, however, that if
neither option is possible or economically feasible and if the inability to use
such intellectual property would cause a material breach of this Agreement (as
determined by BBBVS), BBBVS may immediately terminate this Agreement upon
written notice to the Referring Party.
4. CONFIDENTIALITY.
Each party
acknowledges that Company Information may be disclosed to the other party
during the course of this Agreement. Each party agrees that it shall take
reasonable steps, which shall include, at a minimum, the steps it takes to
protect its own Company Information, to prevent the duplication or disclosure
of Company Information, other than by or to its employees or agents who must
have access to the Company Information to perform such party's obligations
hereunder, who shall each agree to comply with the terms of this Section 4.
Each party agrees that if it is required by law to disclose the other party's
Company Information, such disclosing party must first give written notice of
such required disclosure to the other party and make a reasonable effort to
obtain a protective order requiring that the Company Information so disclosed
be used only for the purposes for which disclosure is required. These
obligations shall continue indefinitely for so long as the Company Information
is a Trade Secret under applicable law, and with regard to the Company
Information that does not rise to the level of a Trade Secret for the shorter
of (i) two (2) years after the termination of this Agreement or (ii) for so
long as the Confidential Information remains confidential under applicable law.
5. LIMITATION OF LIABILITY; DISCLAIMER;
INDEMNIFICATION.
5.1. Limitation of
Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF
PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR
FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, MULTIPLE, PUNITIVE OR
CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING
WITHOUT LIMITATION, NEGLIGENCE), WARRANTY, GUARANTEE OR ANY OTHER LEGAL OR
EQUITABLE GROUNDS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. NEITHER PARTY SHALL MAKE REPRESENTATIONS OR WARRANTIES TO ANY END
USER OR THIRD PARTY ON BEHALF OF THE OTHER PARTY AND IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER PARTY FOR ANY REPRESENTATION OR WARRANTY MADE TO
ANY END USER OR THIRD PARTY BY THE OTHER PARTY. IN NO EVENT SHALL BBBVS'S TOTAL
AGGREGATE LIABILITY TO THE REFERRING PARTY OR ANY THIRD PARTY ARISING UNDER
THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF REFERRAL PAYMENTS PAID TO THE
REFERRING PARTY BY BBBVS DURING THE SIX MONTH PERIOD IMMEDIATELY PRECEDING AN
EVENT GIVING RISE TO A CLAIM FOR LIABILITY. THESE LIMITATIONS SHALL SURVIVE AND
APPLY NOTWITHSTANDING THE VALIDITY OF THE LIMITED REMEDIES PROVIDED FOR IN THE
AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION 5.1 SHALL NOT APPLY TO THE
PARTIES' INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 5.3 BELOW OR TO THE
PARTIES' INJUNCTIVE RELIEF REMEDIES SET FORTH IN SECTION 5.4 BELOW.
5.2. Disclaimer. EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY
SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
REGARDING THE SERVICES, THE REFERRING PARTY SITE, THE BBBVS SITE, OR OTHERWISE
RELATING TO THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE
OF DEALING OR COURSE OF PERFORMANCE.
5.3. Indemnity. BBBVS agrees to
indemnify and hold harmless the Referring Party, its officers, directors,
employees, agents, successors and assigns from and against any and all losses,
liabilities, damages, penalties, claims on actions, causes of action and all
related costs and expenses, including reasonable attorneys' fees, (hereafter
collectively referred to as "Losses") related to claims made by third
parties against such parties alleging that the BBBVS Link infringes the
patents, copyrights, trademarks or service marks or other intellectual property
rights of such third parties. The Referring Party agrees to indemnify and hold
harmless BBBVS, its officers, directors, employees, agents, successors and
assigns from and against all Losses relating to any transactions or the nature
or quality of any content (including any description relating to the Services),
products, and/or services appearing on or provided through the Referring Party
Site. Each party agrees to promptly notify the indemnifying party in writing of
any indemnifiable claim. The foregoing obligations are conditioned on the
indemnified party: (i) cooperating in all reasonable respects with the
indemnifying party and its attorneys in the investigation, trial, defense and settlement
of such claim and any appeal arising therefrom; and (ii) giving the
indemnifying party the right to control the defense and settlement of any such
claim, except that the indemnifying party shall not enter into any settlement
of a claim that involves a remedy other than the payment of money by the
indemnifying party without the consent of the indemnified party, which consent
will not be unreasonably withheld. The indemnified party may participate in
such investigation, trial, defense and settlement of such claim and any appeal
arising therefrom, through its attorneys or otherwise, at its own cost and
expense.
5.4. Injunctive
Relief.
The parties hereby agree and acknowledge that violation by one party of the
provisions of Section 4 may cause irreparable harm to the other party not
adequately compensable by monetary damages. In addition to all other relief and
remedies available to the parties, it is agreed that temporary and permanent
injunctive relief shall be available to the parties to prevent any actual or
threatened violation of such provisions as provided by law.
6. TERM, RENEWAL AND TERMINATION.
6.1. Term and
Termination.
The initial term of this Agreement shall extend for twelve (12) full calendar
months after the Effective date (the "Initial Term"). After the
Initial Term, this Agreement shall automatically renew (any such renewal date
referred to herein as a "Renewal Date") for separate, consecutive
twelve (12) month terms ("Renewal Term(s)"). Either party may terminate
this Agreement for any reason, at any time, upon fifteen (15) days written
notice to the other party. BBBVS may terminate this Agreement immediately upon
notice to the Referring Party, if, in BBBVS' sole discretion, the Referring
Party Site is or becomes unsuitable for BBBVS' referral program. Either party
may terminate this Agreement at any time (i) in the event of a material breach
by the other party of this Agreement that remains uncured twenty-four (24)
hours after the breaching party's receipt of notice of the breach; or (ii) in
the event the other party is unable to generally pay its debts as due, or
enters into or files (or has filed or commenced against it) a petition,
arrangement, action or other proceeding seeking relief or protection under the
bankruptcy laws of the United States or similar laws of the United States or
any state of the United States or any applicable jurisdiction. Additionally,
BBBVS may terminate this Agreement at any time, upon twenty-four (24) hours
prior notice to the Referring Party, in the event that the Referring Party
breaches Section 2.2(c) herein or the Referring Party offers competing services
and products, as reasonably determined by BBBVS, to those services offered by
BBBVS.
6.2. Effects of
Termination.
Within twenty-four (24) hours after termination of this Agreement for any
reason, the Referring Party shall: (i) purge the BBBVS Link from any and all
computer systems, files, or storage media within its possession or control;
(ii) return to BBBVS any and all documents or other media embodying the BBBVS
Link; and (iii) certify to BBBVS in writing that it has complied with the
foregoing obligations. Upon any termination or other expiration of this
Agreement, the license granted in Section 2.1(a) and all other rights of the
parties under this Agreement shall terminate, except that, notwithstanding any
of the foregoing, the rights and obligations under Sections 4, 5, 6.2, 6.3 and
7 herein shall continue in full force and effect.
6.3. No Damages or
Indemnification for Termination. Neither party shall be liable to the other
party for any costs or damages of any kind, including direct, special,
exemplary, punitive, indirect, incidental or consequential damages, or for
indemnification, solely on account of the lawful termination of this Agreement,
even if informed of the possibility of such damages.
7. GENERAL PROVISIONS.
7.1. Independent
Contractors.
The parties to this Agreement are independent parties and nothing herein shall
be construed as creating an employment relationship between the parties. Neither
party is an agent or representative of the other party and neither party shall
have any right, power or authority to enter into any agreement for or on behalf
of, or incur any obligation or liability, or to otherwise bind, the other
party. The Agreement shall not be interpreted or construed to create an
association, agency, joint venture or partnership between the parties or to
impose any liability attributable to such a relationship upon either party.
7.2. Entire
Agreement.
This Agreement, including any exhibits attached hereto, constitutes the entire
understanding and agreement with respect to its subject matter, and supersedes
any and all prior or contemporaneous representations, understandings and
agreements whether oral or written between the parties relating to the subject
matter of this Agreement, all of which are merged in this Agreement.
7.3. Severability of
Provisions.
In the event that any provision of this Agreement is found to be invalid or
unenforceable pursuant to judicial decree or decision, the remainder of this
Agreement shall remain valid and enforceable according to its terms, unless due
to such invalidity, either party is denied a material benefit which would have
accrued had the provision not been found invalid.
7.4. Assignment. This Agreement and the
rights and obligations hereunder may not, whether voluntarily or involuntarily,
directly or indirectly, be assigned, sublicensed, sold or otherwise transferred
by the Referring Party, including, without limitation, to any successor-in-interest
to any of the Referring Party's assets, without the prior written consent of
BBBVS, which consent shall be given or not in BBBVS' sole discretion. Any
assignment in violation of the terms hereof shall be void and of no force or
effect.
7.5. Governing Law;
Jurisdiction; AttorneysÕFees. This Agreement shall be governed by the laws of
the State of Washington USA, without giving effect to applicable conflict of
laws provisions. All actions with respect of this Agreement shall be brought in
the federal and state courts having jurisdiction within Bellevue, Washington
and the parties expressly consent to the personal jurisdiction of such courts.
In the event any litigation or other proceeding is brought by either party in
connection with this Agreement, the prevailing party in such litigation or
other proceeding shall be entitled to recover from the other party all costs,
attorneys' fees and other expenses incurred by such prevailing party in such
litigation.
7.6. Waiver. No waiver of any
provision of this Agreement, or any rights or obligations of either party under
this Agreement, shall be effective, except pursuant to a written instrument
signed by the party or parties waiving compliance, and any such waiver shall be
effective only in the specific instance and for the specific purpose stated in
such writing.
7.7. Headings. The section and
paragraph headings used in this Agreement are inserted for convenience only and
shall not affect the meaning or interpretation of this Agreement.
7.8. Amendment. The terms and
conditions of this Agreement may not be modified or amended other than by a
writing signed by both parties.
7.9. Force Majeure. Either party shall be
excused from any delay or failure in performance hereunder caused by reason of
any occurrence or contingency beyond its reasonable control, including but not
limited to, acts of God, earthquake, labor disputes and strikes, riots, war,
and governmental requirements. Notwithstanding the foregoing, a change in
economic conditions or technology shall not be deemed a Force Majeure event.
The obligations and rights of the party so excused shall be extended on a
day-to-day basis for the period of time equal to that of the underlying cause
of the delay.
