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mybabypages affiliate agreement
This Affiliate Program Agreement (the "Agreement") sets forth the terms and conditions regarding the Affiliate Program (the "Program") of mybabypages.com ("mybabypages").
BY CLICKING CONTINUE AT THE END OF THE AFFILIATE APPLICATION, YOU (IF YOU ARE ACTING ON BEHALF OF YOURSELF AS AN INDIVIDUAL) OR YOUR COMPANY (IF YOU ARE ACTING ON BEHALF OF YOUR COMPANY) (THE "AFFILIATE") AGREE(S) TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS.
1. Definitions. Capitalized terms in this Agreement will have the meanings set forth below or attributed to them in various sections of the Agreement.
"Affiliate-Driven Visitor" means a unique end-user who accesses mybabypages through an Affiliate Link on the Affiliate Site.
"mybabypages" means the online service owned and operated by mybabypages, which offers baby website hosting services for expectant and new parents, and which is located primarily at http://www.mybabypages.com, and any successors thereto.
"Incentives" means any payments, rebates or discounts (including without limitation charitable donations), or any benefits under any incentive or loyalty programs, offered or provided by Affiliate to end-users in exchange or in consideration for such end-users accessing the mybabypages service through an Affiliate Link on the Affiliate Site and/or purchasing services at the mybabypages website.
"Intellectual Property Rights" means all rights in and to trade secrets, patents, copyrights, trademarks, know-how, as well as moral rights and similar rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to any of the foregoing.
"Link" means a URL hidden behind a formatting option that may take the form of a colored item of text (such as a URL description), logo or image, "button" or graphic box, and which allows a user to automatically move to or between WWW pages, WWW sites or within a WWW document.
"New Customer" means a first time purchaser from mybabypages.com
"Net Revenues" means revenues actually received by mybabypages as a result of service sales at the mybabypages.com website, less discounts, returns.
2. Links. Affiliate agrees to promptly post at least one Link (the "Affiliate Link(s)") to the mybabypages website at one (or more) web sites owned or operated by Affiliate (the "Affiliate Site") in no event later than five (5) business days following the receipt by Affiliate of an Acceptance Notice (as defined in Section 3 below). MyBabyPages will make available to Affiliate the Affiliate Link. Affiliate acknowledges that the Affiliate Link provided by MyBabyPages for inclusion in the Affiliate Site will include the MyBabyPages tradename, trademark, service mark and/or logo (the "MyBabyPages Brand Features"), and Affiliate has no right to alter, remove, or customize the MyBabyPages Brand Features. Affiliate will not use or display the Affiliate Link(s) or the MyBabyPages Brand Features in a manner that is defamatory, misleading, libelous, obscene or otherwise potentially damaging to the reputation of MyBabyPages, or the goodwill associated with the MyBabyPages Brand Features.
3. No Obligation to Accept; Effectiveness of Agreement. MyBabyPages may refuse to enter into this Agreement for any reason, including, without limitation (a) if Affiliate Site promotes a product or service competitive to the MyBabyPages Service or MyBabyPages ("Improper Promotion"); (b) if Affiliate Site (i) contains or links to any pornographic material, (ii) encourages illegal activity or discrimination, (iii) is regarded by MyBabyPages as inappropriate, or (iv) could result in liability or adverse publicity to MyBabyPages (collectively, "Improper Content"); or (c) if to do so would violate any applicable law, regulation or third party right. This Agreement will only become effective upon receipt by Affiliate of email confirmation from MyBabyPages that MyBabyPages has accepted Affiliate into the Program (the "Acceptance Notice"). Following acceptance, MyBabyPages reserves the right to terminate this Agreement immediately upon notice to Affiliate if Affiliate Site contains any Improper Content or Improper Promotions.
4. Affiliate Obligations. Affiliate will be solely responsible for the development, operation and maintenance of Affiliate Site and for all materials that appear on Affiliate Site, including but not limited to: (a) the accuracy and appropriateness of materials posted on Affiliate Site; (b) ensuring that materials posted on Affiliate Site do not violate or infringe upon the rights of any third party; (c) ensuring that the Affiliate Site does not contain any Improper Content; and (d) ensuring that the Affiliate Site does not engage in any Improper Promotion. Affiliate hereby agrees to indemnify and hold MyBabyPages harmless from any and all claims, damages and expenses (including, without limitation, attorneys' fees) arising from the development, operation, maintenance and contents of Affiliate Site.
5. Payments. Unless Affiliate provides or offers any Incentives to its end-users, MyBabyPages will pay to Affiliate $5 per membership signup. The applicable amounts payable to Affiliate by MyBabyPages pursuant to this Section shall be referred to as "Fees" for purposes of this Agreement. No Fees shall be payable if an Affiliate-Driven Visitor leaves the MyBabyPages site without making a purchase and later returns to the MyBabyPages site to make a purchase via any method other than through an Affiliate Link. Within forty-five (45) days following the end of each calendar month, MyBabyPages will provide the Fees for such quarter to Affiliate, along with a summary report showing the calculation of the Fees for such quarter; provided, however, that no payment shall be due in any quarter in which the total Fees owed to Affiliate is less than $25.00, and such amount will be carried over and paid in the next quarter in which the aggregate Fees owed equals or exceeds $25.00.
6. License Grant. MyBabyPages hereby grants to Affiliate a limited, nonexclusive, royalty-free, nontransferable, worldwide license, without the right to sublicense, to use, reproduce, publicly perform, distribute and display the MyBabyPages Brand Features at the Affiliate Site, solely as incorporated into the Affiliate Link(s) and solely in the form delivered by MyBabyPages.
7. Reservation of Rights. MyBabyPages reserves all rights other than those expressly granted in this Agreement, and no licenses are granted except as expressly set forth herein. MyBabyPages retains all right, title, and interest in and to the MyBabyPages Brand Features and the MyBabyPages service, together with all Intellectual Property Rights thereto.
8. Program Information. MyBabyPages will own all right, title and interest in and to all information that is created or collected in the operation of the MyBabyPages site including, without limitation: (i) any contact information collected from any Affiliate-Driven Visitors, (the "Contact Information"); and (ii) any information collected about click-through rates and product sales at the MyBabyPages site generated through the Affiliate Link(s), (the "Sales Information"). MyBabyPages will make certain Sales Information available online to Affiliate from time to time. Affiliate will not disclose any Sales Information to any third party without MyBabyPages's prior approval. Subject to the terms and conditions of this Agreement, MyBabyPages grants to Affiliate a worldwide, non-exclusive, royalty-free license to use Sales Information solely in the manner and subject to the restrictions set forth in this Section.
9. Termination. This Agreement will begin upon the acceptance of the Affiliate application and will end on the date this agreement is terminated by either party. Except as otherwise explicitly provided in this Agreement, this Agreement may be terminated by either party upon two (2) days written notice to the other party. Upon termination or expiration of the Agreement: (i) all licenses granted herein shall terminate; (ii) Affiliate shall immediately remove any Affiliate Links(s) from Affiliate Site; (iii) MyBabyPages will pay Affiliate any accrued and unpaid Fees; and (iv) Sections 11, 12, 14, and 15, and this sentence will survive.
10. Modification. At any time and in MyBabyPages's sole discretion, MyBabyPages may modify any of the terms and conditions contained in this Agreement by (i) posting a change notice or a new agreement on the password-protected site, and/or (ii) emailing a revised agreement to Affiliate. Such modifications shall take effect thirty (30) days following the posting of a change notice or new agreement on the site or Affiliates' receipt of a revised agreement via email, whichever occurs first (the "Notice Period"). IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, AFFILIATE'S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT WITHIN THE NOTICE PERIOD. AFFILIATE'S CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE END OF THE NOTICE PERIOD WILL CONSTITUTE BINDING ACCEPTANCE OF THE MODIFICATION.
11. Disclaimer. THE MYBABYPAGES SITE AND RELATED SERVICES ARE PROVIDED "AS IS" WITH NO WARRANTY, AND MYBABYPAGES EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE MYBABYPAGES SITE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
12. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL MYBABYPAGES BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, MYBABYPAGES'S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT.
13. Authority. If the person entering into this Agreement is acting on behalf of his or her company, such person represents to MyBabyPages that he or she has all requisite corporate power and authority to enter into this Agreement on behalf of Affiliate, that this Agreement has been duly authorized by Affiliate and that this Agreement will constitute the legal, valid and binding obligation of Affiliate. Such person hereby agrees to indemnify and hold MyBabyPages harmless from any and all claims, damages and expenses (including, without limitation, attorneys' fees) arising from any breach of this Section.
14. Miscellaneous. Both parties hereby submit to the jurisdiction of the Federal and State courts in the County of Monroe, NY. This Agreement shall be interpreted in accordance with the laws of the State of New York without reference to conflicts of laws provisions, and any legal proceeding arising out this Agreement will occur in Rochester, NY. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. This Agreement contains the entire agreement between MyBabyPages and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral, between MyBabyPages and Affiliate with respect to the subject matter hereof. Affiliate may not assign all or any part of this Agreement without MyBabyPages's prior written consent. Except as set forth in Section 10, this Agreement may not be modified without the prior written consent of both parties. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement, and the balance of the Agreement shall be enforceable in accordance with its terms.
15. Notice. Any notice or other communication to be given hereunder will be in writing and given by facsimile, postpaid registered or certified mail return receipt requested, or electronic mail. The date of receipt shall be deemed the date on which such notice is given. Notice hereunder will be directed to the parties at their respective email addresses. For purposes of this paragraph MyBabyPages's email address is info@mybabypages.com.
16 Restrictions. Subject to the terms and conditions of this Agreement, MyBabyPages grants to Affiliate a worldwide, non-exclusive, royalty-free license to use the MyBabyPages affiliate Information solely for its own internal business use. Affiliate will not disclose any MyBabyPages Information to any third party without MyBabyPages's prior approval. Affiliate agrees that it shall not use any MyBabyPages Information or the MyBabyPages Service (i) to track, compile or aggregate any information by individual transaction, or (ii) in a manner that uniquely identifies individual Affiliate-Driven Visitors or individual transactions. Should MyBabyPages request it, Affiliates using to MyBabyPages must provide a list of names of sites associated with each MyBabyPages parameter.
16.1 Payments to Third Parties. Affiliate shall be solely responsible for any payments due in connection with Affiliate's own reward, loyalty, rebate or charitable giving services or programs, and to any sub-affiliates or any third parties with which Affiliate shares the Fees.
16.2 No Fees. MyBabyPages will provide the MyBabyPages Service to Affiliate free of charge. However, MyBabyPages reserves the right to charge for access or use of the MyBabyPages Service in the future. MyBabyPages will notify Affiliate of any such fees associated with access to or use of the MyBabyPages Service, and will require Affiliate to re-subscribe to the MyBabyPages Service prior to charging any fees.
16.3 Modifications. At any time and in MyBabyPages's sole discretion, MyBabyPages reserves the right to modify, suspend or discontinue all or any portion of the MyBabyPages Service, provided that, in the event MyBabyPages discontinues the MyBabyPages Service in its entirety, MyBabyPages shall notify Affiliate by posting a discontinuation notice on the password-protected Web site through which the MyBabyPages Service is available, or by emailing a discontinuation notice to Affiliates.
16.4 Disclaimer. THE MYBABYPAGES SERVICE IS PROVIDED "AS IS" WITH NO WARRANTY, AND MYBABYPAGES AND ITS THIRD PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE FLEXTRACK SERVICE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
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