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FunWithWind.com Affiliate Operating Agreement
Affiliate Participation Agreement
This Affiliate Participation Agreement is made by and between Insithout, Inc., a Massachusetts corporation doing business as insithout.com with a principal place of business at 47 Royal Crest Drive, North Andover, MA 01845 (“Company”)and Registered affiliate organizations.
1. INTRODUCTION
This Affiliate Participation Agreement ("Agreement") sets forth the terms and conditions applicable to participants in the Company Affiliate Program (the "Program"). In addition to the terms and conditions contained herein, Company may from time-to-time establish rules and procedures or amend existing rules and procedures. Such rules and procedures, presently existing or later amended or established, are and will be automatically incorporated herein and made a part of this agreement.
2. DEFINITIONS
As used in this Agreement, the terms "we" and "us" refer to Company (Company.com); "you" and "your" refer to the participant or affiliate; "our site" refers to the www.(affiliate).com and or authorized affiliate aliases web site; "your site" refers to the web site from which you will link to our site; and "product" means any item offered for sale by us on our site. A "fully-qualified link" ("Qualified Link") refers to a link from your site to ours which contains properly-formatted Merchant and Source ID Codes.
3. ENROLLMENT IN THE PROGRAM
You will become enrolled in our affiliate program upon your submission and our acceptance of this Agreement. We will under no circumstances approve affiliates whose sites incorporate content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable. We will not approve affiliates with sites that facilitate or promote illegal activity, depict sexually explicit images, promote violence, promote discrimination based on race, sex, religion, nationality, disability, or age, or incorporate any material that infringes or assists others in their efforts to infringe on any copyright, trademark or other intellectual property rights. You are solely responsible for all of your own expenses incurred in connection with your participation in the Program (i.e., site hosting or bandwidth fees). We may terminate this Agreement in the event of changed conditions or for any other reason. Determination that a site’s content is "objectionable" is at our sole and final discretion.
4. UTILIZING OUR LINKS ON YOUR SITE
If you are approved as an Affiliate, you will be provided with a link to our site (the "Link"). These may consist of any number of graphical and textual links, banner advertisements, button links and other static or dynamically-updated content incorporating our logos and/or words identifying us. Subject to the terms and conditions herein, you may display these Links on your site. You agree that you will cooperate fully with us to establish and maintain such 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 in this Agreement. You shall endeavor to display the Links prominently throughout your site wherever commercially reasonable. 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 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 look, feel, or functionality of the Links without our express prior written consent. You may not use the Links in any way that may alter the look, feel, or functionality of our site, or which negatively impact our brand equity or reputation. We have the right to monitor your site from time to time to determine if you are in compliance with this Agreement.
6. ORDER PROCESSING
We will process orders placed by customers who follow the Links from your site to our 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 entity making an order to comply with our terms of use as these may evolve from time to time. We will be solely responsible for all aspects of order processing and fulfillment. The volume and amount of sales generated using the Links from your site to ours will be tracked by us ("Tracking Data"). We will provide you with a report on your site's traffic and sales activity, as it relates to the Program, on a quarterly basis. To permit accurate tracking and reporting, you must ensure that the Links between your site and our site are properly formatted.
6. COMMISSIONS
Only Products that are purchased by a user who has originally linked to our site from your site pursuant to a Qualified Link ("Linked User"), for which purchase we have received full payment (collectively a "Qualifying Purchase"), will qualify for a commission ("Commission"). No Commission will be paid if the visitor to our site cannot be tracked by our tracking system. Commission rates ("Commission Rates") will be based on the amount actually paid to us for Qualifying Purchases, excluding amounts collected by us for sales taxes, duties, gift-wrapping, shipping, 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. The current Standard Commission Rate is ten percent (10%) of the Net Sales received by us. Although we assume no obligation to do so, we may, from time to time, offer increased Commission Rates on specific products and/or other additional incentives to our Affiliates.
7. COMMISSION PAYMENT
Subject to Section 6 above, we will pay you Commissions on a quarterly basis. Within approximately 30 days following the end of each calendar quarter during which this Agreement is in effect, we will send you a check for the Commissions you earned on Net Sales in the preceding month, 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 $75.00, we will hold those Commissions until the total amount due is at least equal to $75.00. If returns, refunds or other events require recalculation of Net Sales for a period in which Commissions have already been paid, we will offset Commissions payable in succeeding months by the amount which Commissions are reduced by such recalculation. If there are no subsequent Commissions payables, 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. As an independent contractor, you are solely and entirely responsible for any and all taxes and/or other fees or obligations associated with your receipt of payments under this Agreement.
8. POLICIES AND PRICING
Customers who buy Product(s) through the Affiliate Program are our customers, and all purchases and related transactions are subject to our Terms and Conditions, Privacy Policy, and other rules and operating procedures, all of which we may periodically modify, at our sole discretion. You do not have any authority to make any sale or representation on our behalf or to bind us in any way, and you agree that you shall not attempt to do so or to hold yourself out as having authority to do so. Accordingly, you may not post our proprietary product information, prices, policies, terms, or other similar information on your site, EXCEPT WHEN THAT INFORMATION IS USED IN CONJUNCTION WITH A LINK TO OUR SITE AS CONTEMPLATED BY THIS AGREEMENT, OR WITH EXPRESS WRITTEN PERMISSION FROM US TO POST SUCH INFORMATION ON YOUR SITE.
9. RESPONSIBILITY FOR YOUR SITE
You will be solely responsible for the development, operation and maintenance of your site, all activities relating to your site and for all materials that appear on your site. We shall have no responsibility for the development, operation or maintenance of your site or for any materials that appear on your site. You shall also be solely responsible for ensuring that materials posted on your 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 site are not libelous or otherwise illegal. You must have express permission to use another party's copyrighted or other proprietary material on your 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.
10. 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, judgment 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.
11. NON-EXCLUSIVE, LIMITED LICENSE FOR USE OF LOGOS AND TRADEMARKS
We grant you a limited, non-exclusive, non-transferable, revocable right to use such graphics, images, logos and text as we may from time to time provide to you or provide you with access to (the "Licensed Materials") solely in connection with your participation as an approved affiliate of the Program. 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 (including, but not limited to, image dimensions and file sizes and types) 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, or materials which have been modified or are substantially similar, 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 notice provisions of this Agreement. You shall obtain no rights in or to the Licensed Materials in the event of termination of this Agreement. 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. You grant us a limited, non-exclusive, royalty-free, worldwide 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 Affiliate Program, your participation in the Affiliate Program and/or Company. We shall not be required to use the Affiliate Trademarks or to advertise, market, promote, or publicize you or your site. You hereby represent and warrant that you are the sole and exclusive owner of the Affiliate Trademarks and that you 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 breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon you, or infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. From time to time we may provide you with links containing names, logos, trademarks, trade names, service marks, or other materials owned by third parties (the "Third Party Materials"). The Third Party Materials shall remain the property of their respective owners, and we do not confer any rights upon you by providing you with those materials. You may not alter or modify any Third Party Materials or use the materials in any way that has not been specifically approved by us. These licenses shall terminate upon the date of expiration or termination of this Agreement.
12. RELATIONSHIP OF PARTIES
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.
13. WARRANTY DISCLAIMER
WE MAKE NO WARRANTIES OR REPRESENTATIONS OF ANY KIND WITH REGARD TO THE PROGRAM OR ANY PRODUCTS, 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 OR PRODUCTS 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. LIMITATIONS OF LIABILITY
We will have no liability of any sort arising from any interruptions or errors on our 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 total 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.
15. AGREEMENT TERM / CANCELLATION / TERMINATION
The term of this Agreement will begin upon our execution of this Agreement and will end when agreed upon by both parties. 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 3, 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 Net Sales occurring during the term of this Agreement, and commissions earned through the date of termination will remain payable only if the related orders for Products are not cancelled or returned. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
16. 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 we expressly agree otherwise and agree to the form and substance of such press release or announcement.
17. INDEMNIFICATION
You hereby agree to indemnify, defend and hold harmless us and our shareholders, 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 which arise from or relate in any way to the content of your site, the conduct of your business, or the goods and/or services you offer as an Affiliate.
18. 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.
19. NO 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.
20. ENTIRE AGREEMENT
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 18, above, this Agreement may be changed only by a writing signed by both parties.
21. WAIVER
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.
22. GOVERNING LAW
This Agreement will be governed and construed in accordance with the laws of the State of New Hampshire as applied to agreements made, entered into and performed entirely in the State of New Hampshire by New Hampshire residents, notwithstanding your actual residence.
23. 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.
24. NOTICE
Any notices hereunder shall be given as follows: To: Company.com, 56A Kendall Pond Road, Derry, New Hampshire 03038, Attn: Affiliate Program Coordinator. To you, at the address specified on the first page of this Agreement, 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, or 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.
INTENDING TO BE LEGALLY BOUND, the undersigned authorized officer of Company and the Affiliate named below executed this Affiliate Participation Agreement on the dates stated below.
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