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This License Agreement (this "Agreement") is made effective upon acceptance of this agreement between you, the Affiliate, and Digital River, Inc. ("REGNOW"), P.O. Box 1816, Issaquah, WA 98027. The parties agree as follows:
RECITALS: Distributor pursues a line of business, in addition to other businesses, whereby it purchases and resells computer software, documentation and all updates, revisions and enhancements hereto ("Products") made by or for the authors and owners thereof ("Owners"), and which Owners "shareware" is listed on ___________________ Web site ("Affiliate"). Distributor and Affiliate have agreed that Distributor shall act as the "reseller" of such Products from the Site. Distributor and Affiliate wish to confirm their agreement with respect to such marketing activities by Distributor to the End Users that the parties anticipate will by virtue of their utilization of the Site be the customers and assignees of Distributor for the Products.
NOW THEREFOR, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in consideration of their mutual understanding, the parties agree:
1. Non-Exclusive Use: This is a non-exclusive agreement between Affiliate and Distributor.
2. Term: The term of this Agreement shall commence as of the day hereof and shall terminate three hundred sixty five (365) days thereafter. This Agreement shall automatically renew for additional one-year periods. Either party for any reason may instigate termination. If Affiliate chooses to terminate this contract, Distributor must receive a signed termination letter no less than 30 (thirty) days prior to termination date either hand delivered or sent via FAX or E-Mail, followed by certified mail, return receipt requested, to the addresses indicated in the preamble hereof. Distributor may terminate this contract without notice if:
a. If Affiliate becomes bankrupt or insolvent, or makes an assignment for the benefit of its creditors;
b. Affiliate fails to remedy any breach of duty or performance called for under this Agreement within ten days following notice from Distributor, said 10 day period commencing upon notification from Distributor to Owner via electronic transmission or facsimile transmission with following "hard copy" delivery of notice as described above.
c. Distributor has a reasonable reason to believe that Affiliate is involved in fraudulent activity.
d. Distributor finds that Affiliate's site content contains and promotes information and product related to Spam, possible Schemes, or promotes other products and services that Distributor deems as inappropriate.
e. Distributor following up on Spam complaints find that Affiliate sends unsolicited email as described in clause 4, Affiliate Duties.
3. Distributor's Duties: Distributor shall provide commerce server, Internet connectivity and hardware/software installation, configuration and maintenance, domain registration, and all customization of the server software and scripts. Distributor shall utilize a security system, which enables users to purchase Product through secure means. Distributor shall allow sales of Product to be effected through the use of means as Distributor in its sole discretion utilizes, and may add or change from time to time. Distributor shall be responsible for collection from the End Users and for payment to Owners and Affiliate, and shall account for all transactions on no less than a monthly basis. Distributor will provide a report mechanism to Affiliate that shows sales so that Affiliate can track commissions owed under this agreement. Payment will be made to Affiliate for all Products sold from the Site in a given reporting period no later than the fifteenth (15) day of the following reporting period when the account balance is at or over . Reporting period's start and end on the 15th of every month. Distributor shall be responsible for interfacing with Owners to set up delivery mechanisms to End Users. It is anticipated that the deliver mechanism shall be via electronic mail and forms as much as possible. Distributor shall be responsible for handling all charge back and customer inquires about charges as arise from Product sales to End Users. Distributor shall be responsible to set up a software deliver mechanism between each Owner and End User, it being understood that Distributor is a purchaser and reseller of Products. Distributor agrees to indemnify Affiliate for any claims, liabilities, losses or expenses (including attorney's fees) asserted against or incurred by Affiliate as a result of any Owner, any purchaser of Products, or any users of any Products purchased making any claim associated with the resale or potential resale of Products.
4. Affiliate Duties: Affiliate is responsible for promoting the sales mechanism for Owners via various methods including but not limited to, notices, banners, links, and advertisements on the Site. Methods used for promotion should be presented in a pleasing manner and encourage the user to purchase Products on the Site. Notwithstanding the foregoing, Affiliate retains the exclusive right to design and place notices, banners, and advertisements on the Site. Affiliate shall require Distributor to approve the content of any advertisements. Affiliate agrees to hold Distributor harmless from any claims, losses, liabilities, and expenses (including attorney's fees) incurred by or asserted against Site Owner due to the actual or alleged inaccuracy of the content of any of the approved advertisements. Affiliate reserves the right to change the domain name of the Site at any time. Affiliate shall attempt to keep the Site operational, but Affiliate does not warrant that the Site will be operational at all times. Affiliate shall not at any time engage in, or use Distributor's systems to engage in, Net abuse, including, but not limited to, activities such as using a non-existent return e-mail address on a commercial solicitation, spamming (sending unsolicited advertising to numerous email addresses or newsgroups), trolling (posting outrageous messages to generate numerous responses), mail bombing (sending multiple messages without significant new content to the same user), subscribing someone else to a mailing list without that person's permission, cross-posting articles to an excessive number of newsgroups, attempting without authorization to enter into a secured computer system, or purposefully instigating computer viruses.
b. Affiliate order page URL will not be used in conjunction with other web sites. The affiliate order page URL is only for promotion of product from web sites that Affiliate owns.
c. Solicitation requests must be approved by Owner by at least 30 days prior to any promotional mailing.
5. Compensation: For purposes of this Agreement, Net Proceeds shall mean funds actually received by Distributor for Product sales, less chargebacks and returns, payments to Distributor, and payments to Owner. Affiliate will be compensated as follows: (a) for each sale that is made from a link on the Site, Affiliate shall receive some percentage of the total sale, which varies based up on the Product and or Owner at any given point in time; or (b) if no percentage has been determined by Product and or Owner at the point of sale, Distributor shall determine the percentage to be received by Affiliate. Distributor shall remit payment at the upcoming billing cycle when the account balance for the previous month's sales equals or exceeds . Distributor may hold a payment to perform an internal audit on the account. When this occurs, Affiliate will be informed of the future payment cycle that the payment remittance will occur. Distributor will remit payment by direct deposit for 2 payment (Distributor encourages direct deposit payment), but will remit payment by check for 4 payment.
6. Fees: Distributor reserves the right to charge in part or entirely for services provided at any time.
7. End User Data. Affiliate does not own End User Data thus Affiliate will not share with any other third party the End User Data.
8. Confidentiality. If, by virtue of this Agreement, Affiliate receives any information deemed proprietary or confidential by Distributor, you shall hold Distributor's Confidential Information in confidence and not disclose it or use it. Affiliate agrees to take reasonable steps to use at least the same degree of care that Affiliate would use to protect Affiliate's Confidential Information, but no less than reasonable care to protect Distributor's Confidential Information to ensure that it is not disclosed or used in violation of this Agreement.
9. Relationship of Parties: Distributor's right as seller of Product on the Site does not constitute the creation of an agency, partnership, or employment relationship between Distributor and Affiliate. Distributor and Affiliate each have independent business ventures separate and apart form the relationship described hereby. No authority is given to one party by the other hereby to contract or enter into any business dealings with any third party.
10. Governing Law: This Agreement shall be construed and enforced under the laws of the State of Washington.
11. Entire Agreement: This Agreement contains the entire understanding of the parties hereto with respect to its subject matter.
12. Notice: All notices and other communications required or permitted hereunder shall be deemed to have been duly give if hand delivered or sent via FAX or e-mail followed by certified mail, return receipt requested, addressed as follows or at such other address as either party hereto shall designate to the other party in writing:
(A) To Distributor: RegNow, a Service of Digital River, Inc
PO Box 1816
Issaquah, WA 98027
(B) To Site: ___________________
13. Assignment: Affiliate cannot assign this Agreement or any rights, duties or obligations.
14. Binding Effect and Amendment: This Agreement supersedes all prior understanding or communications, written or oral, between the parties with respect to the subject matter hereof. This Agreement may be amended only in writing executed by the authorized representatives of both parties.