This
agreement contains the complete terms and conditions that apply
to your participation as an Affiliate in Desmac Corporation's
Affiliate Program ("the Program"), and the establishment of links
from your affiliate Web site to our Web site "www.desmac.com".
By submitting your Affiliate Application you are confirming
that you have read this agreement and you agree to be bound by the terms and
conditions contained in this Agreement.
1.
Enrollment in the Program
:
To begin the enrollment
process, you must submit a complete Affiliate Application via
our site. We will evaluate your application in good faith and
will notify you of your acceptance or rejection in a timely manner.
We may reject your application if we determine (in our sole and
absolute discretion) that your site is unsuitable for the Program
for any reason, including, but not limited to, inclusion of content
that is in any way unlawful, harmful, threatening, defamatory,
obscene, harassing, or racially, ethically, or otherwise objectionable.
If we reject your application, you are welcome to reapply to the
Program at any time.
2.
Promotion of Our Affiliation
:
As an Affiliate Site, we will make
available to you Desmac Home Page Links and Desmac Banner Links
(each of these links sometimes being referred to herein as "Links"
or, individually, as a "Link"), which, subject to the terms and
conditions of this Agreement, you may display as often and in
as many areas on your site as you desire. The Links will serve
to identify your site as a member of the Program and will establish
a link from your site to ours.
a.
Links:
(i)
Desmac Home Page Link: Subject to the terms of clause (b) below, we will
provide you a Desmac Link, which will consist of some marketing verbiage a
hyperlink pointing to Desmac with your own affiliate code embedded in it. This
link will connect your site directly to our home page. By utilizing this link,
users of your site will be tracked and tied back to you for commission tracking
purposes.
(ii)
Desmac Banner Ad Links: Subject to the terms of the clause (b) below, we will
also provide Desmac Banner Ad Links, which will consist of graphic images
provided by us (and subject to change from time to time in our sole and
absolute discretion), which shall contain Desmac's logo and/or graphics and
animation, or similar graphics and text for a marketing message. This Link will
connect your site with a designated area on our site or the site's home page.
By utilizing this link, users of your site will be tracked and tied back to you
for commission tracking purposes.
b.
Agreements Regarding Links:
(i)
In utilizing Desmac's Links, and Banner Links, you agree that you will
cooperate fully with us in order to establish and maintain such Links. You also
agree that you will display in your site only those graphic images (indicating
a Link) that are provided by us, and you will substitute such images with any
new images provided by us from time to time throughout the term of this
Agreement. You shall display such graphic images prominently in relevant
sections of your site. Each Link connecting users of your site to the pertinent
area of our site must in no way alter the look, feel or functionality of our
site.
4.
Our Responsibilities:
We
will be responsible for providing all information necessary to
allow you to make appropriate Links from your site to our site.
We will be solely responsible for processing every lead that comes
in via a special Link from your site, for tracking the amount
of sales generated by your site, and for providing information
to you regarding sales statistics. We will be responsible for
all sales activities, customer service, and production.
5.
Other Responsibilities and Opportunities of Affiliate
Sites:
a.
You may display the Links prominently
throughout your site as you see fit and with our consent.
b.
Compliance with the Agreement: We have
the right in our sole and absolute discretion to monitor your
site at any time and from time to time to determine if you are
in compliance with the terms of this Agreement.
6.
Commission Determination:
The
purchase price of services will count toward the total sales during
each three-month period following the date of acceptance of your
application in which such services are sold. Only services that
are sold by us (to users of your site linked to our site), delivered/installed
at a customer's site, and for which we have received full payment
will qualify for a commission.
a.
Subject to Section 7(b) below, commission
rates will be three percent (3%) of the aggregate purchase price
actually paid to us by users of your site who purchase services
utilizing the Links between our site and your site., excluding
amounts collected by us for sales taxes, duties, and similar charges,
amounts due to credit card fraud and bad debt, and credits for
returned goods ("Net Sales").
b.
If during
any term year Net Sales exceed two hundred fifty thousand dollars
($250,000.00), we will increase the fee described in clause (a)
above to five percent (5%) of all Net Sales, and, to the extent
that any amounts paid to you by us during such term year were
calculated and paid based on the three percent (3%) fee described
in clause (a) above, we will pay to you any excess over the previously
paid amounts due as a result of the above-described two percent
(2%) increase.
7.
Commission Payment:
a)
Subject to clause (b) below, based on
Net Sales, we will send a commission fee check for the applicable
commission fee (less any taxes required to be withheld under applicable
law) and a statement of activity to you approximately thirty (30)
days after the end of each three-month anniversary of the date
of acceptance of your application.
b)
If during the first three months of the
term of this Agreement, or during any three-month period following
the payment of commissions to you, your commissions earned do
not exceed one hundred dollars ($100.00), then you shall not be
entitled to receive any commissions during the applicable quarter.
Thereafter, you will be paid commissions at the end of the quarter
during which your aggregate commissions earned during such successive
period exceed one hundred dollars ($100.00). At such time, you
will be paid all commissions you would have otherwise been entitled
to had your commissions exceeded one hundred dollars ($100.00).
8.
Reports of Sales:
Approximately
30 days after each three-month anniversary of the date of acceptance
of your application you will receive a statement of activity outlining
net sales for the quarter.
9.
Your Responsibilities:
You
are solely responsible for ensuring that your site complies with
all applicable copyright and other laws. You must have express
permission to use another party's copyrighted or other proprietary
material. We will not be responsible if you use another party's
copyrighted or other proprietary material in violation of the
law.
10.
Policies:
Customers
who buy services through the Program will be deemed to be customers
of Desmac Corporation. Accordingly, all of our rules, policies,
and operating procedures concerning customer orders, customer
service, and sales will apply to those customers. We may change
our policies and operating procedures at any time in our sole
and absolute discretion.
11.
Publicity:
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 prior written consent, which we may withhold
in our sole and absolute discretion.
12.
Licenses and Use of the Desmac.com and Desmac Corporation 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 our logos, trade names, trademarks, and
similar identifying material relating to us (collectively, the
"licensed materials"), for the sole purpose of selling services
on your site for Desmac Corporation. You may not alter, modify,
or change the licensed materials in any way. We may terminate
your right to use the licensed materials for any reason at any
time in our sole and absolute discretion.
b.
You shall not make any specific use of any Licensed Materials
for purposes other than selling services on your site for Desmac
Corporation, without first submitting a sample of such to us and
obtaining the prior written consent which we may withhold in our
sole and absolute discretion. 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 of our other proprietary rights.
c. You grant to us a non-exclusive license to utilize your names,
titles, and logos (the "Affiliate Trademarks"), to advertise,
market, promote, and publicize in any manner our rights hereunder;
provided, however, that we shall not be required to so advertise,
market, promote, or publicize. This license shall terminate upon
the effective date of the expiration or termination of this Agreement.
13.
Obligations Regarding Your Site:
a.
You will be solely responsible for the
development, operation, and maintenance of your site and for all
materials that appear on your site. Such responsibilities include,
but are not limited to, the technical operation of your site and
all related equipment; ensuring that materials posted on your
site do not violate or infringe upon the rights of any third party
and are not libelous or otherwise illegal.
b.
We disclaim all liability for all
such matters. Further, you agree to defend, indemnify and hold
us harmless from all claims, damages, and expenses (including,
without limitation, attorneys fees) relating to the development,
operation, maintenance or content of your site.
14.
Term of the Agreement:
The
term of this Agreement will begin upon our written acceptance
of your Affiliate Network 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
written notice of termination. You are only eligible to earn commission
fees on sales occurring during the term, and fees earned through
the date of termination will remain payable only if the related
sales are not canceled or returned. We may withhold your final
payment for a reasonable time to ensure that the correct amount
is paid.
15.
Modification:
We may modify
any of the terms and conditions contained in this Agreement, at
any time in our sole and absolute discretion. You will be notified
by email and a change notice will be posted on our site. Modifications
may include, but are not limited to, changes in the scope of available
commission fees, commission schedules, payment procedures, and
Program rules. 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 site will constitute binding acceptance of the
change.
16.
Relationship of Parties:
You
and Desmac Corporation, 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 site or otherwise, that reasonably
would contradict anything in this Section.
17.
Disclaimers:
In addition,
we make no representation that the operation of our site will
be uninterrupted or error free, and we will not be liable for
the consequences of any interruptions or errors.
18.
Representations and Warranties:
You
hereby represent and warrant to us 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.
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.
c.
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.
d.
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.
19.
Confidentiality:
Except
as otherwise provided in this Agreement or with the prior written
consent of the other party hereto, each of the parties hereto
agrees that all information including, without limitation, the
terms of this Agreement, business and financial information, customer
and vendor lists, and pricing and sales information, concerning
us or you, respectively, or any of our affiliates provided by
or on behalf of any of them shall remain strictly confidential
and secret and shall not be utilized, directly or indirectly,
by such party for its 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 through a source or sources other
than such party hereto or its affiliates. Notwithstanding the
foregoing, each party is hereby authorized to deliver a copy of
any such information (a) to any person pursuant to a subpoena
issued by any court or administrative agency, (b) to its accountants,
attorneys, or other agents on a confidential basis, and (c) otherwise
as required by applicable law, rule, regulation, or legal process
including, without limitation, the Securities Act of 1933, as
amended, and the rules and regulations promulgated there under,
and the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated there under.
20.
Limitation of Liability:
We
will not be liable for indirect, special, consequential damages,
or any loss of revenue, profits, or data, arising in connection
with this Agreement or the Program, even if we have been advised
of the possibility of such damages. Further, our aggregate liability
arising with respect to this Agreement and the Program will not
exceed the total commission fees paid or payable to you under
this Agreement.
21.
Indemnification:
You
hereby agree to indemnify and hold harmless Desmac Corporation,
and its subsidiaries and affiliates, and their respective directors,
officers, employees, agents, shareholders, partners, members,
and other owners, against any and all claims, actions, demands,
liabilities, losses, damages, judgments, settlements, costs, and
expenses (including reasonable attorneys fees) (any or all of
the foregoing hereinafter referred to as "Losses") insofar as
such Losses (or actions in respect thereof) arise out of or are
based on (i) any claim that our use of the Affiliate Trademarks
infringes on any trademark, trade name, service mark, copyright,
license, intellectual property, or other proprietary right of
any third party, (ii) any misrepresentation of a representation
or warranty or breach of a covenant and agreement made by you
herein, or (iii) any claim related to your site, including, without
limitation, content therein not attributable to us.
22.
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 COMPETE WITH YOUR WEB SITE. YOU HAVE
INDEPENDENTLY EVALUATED THE DESIRABILITY OFPARTICIPATING IN THE
PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE,
OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
23.
Governing Law: This Agreement
will be governed by the laws of the United States and the State
of Texas, without reference to rules governing choice of laws.
Any action relating to this Agreement must be brought in the federal
or state courts located in Harris County, Texas, and you irrevocably
consent to the jurisdiction of such courts. 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. 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 a provision or any other provision of this Agreement
