The undersigned ("Affiliate"), by submitting the Affiliate Application and this Affiliate Advertising Agreement (collectively "Agreement") to iEntertainment Network Inc., a North Carolina corporation ("iEntertainment Network"), acknowledges that it wishes to become an Affiliate, and in consideration of iEntertainment Network approving Affiliate's Application, agrees to be bound by the terms and conditions of this Agreement as well as any specific terms and conditions required by any iEntertainment Network (as defined below) to participate in their respective affiliate program ("iEntertainment Network Specific Terms"). Affiliate warrants that all information provided in the Affiliate Application is true and accurate. Affiliate understands that iEntertainment Network has sole discretion over whether to accept or reject Affiliate's Application, and that this Agreement will not be binding unless Affiliate has been notified of such acceptance.
A. Affiliate is the operator and owner of the Internet Web site(s), emails, other segments or spaces on such Web site(s) and Web-based services described in the Affiliate Application (collectively, the "Distribution Medium").
B. iEntertainment Network operates an online flight simulation network for paid subscribers to the WarBirds online game system, and provides the software required for online subscribers to participate in the iAffiliate Program online game environment.
iEntertainment Network reserves the right to terminate this Agreement at any time upon notice to Affiliate via e-mail or via iEntertainment Network' Web site. iEntertainment Network may immediately terminate this Agreement without notice if Affiliate is in breach of any representation, warranty or covenant in this Agreement or any other agreement to which Affiliate and iEntertainment Network are a party. Affiliate may terminate this Agreement upon thirty (30) days written notice to iEntertainment Network. The rights and obligations contained in Sections 3, 5, 6, 7, 8 and 9 of this Agreement shall survive the termination or expiration of this Agreement.
Affiliate at its discretion, and upon approval by iEntertainment Network and each applicable iEntertainment Network, shall determine which Offers it will display through its Distribution Medium. Any Offer displayed by Affiliate shall be displayed on the terms and conditions set forth in this Agreement and in accordance with all applicable iEntertainment Network Specific Terms.
(a) iEntertainment Network agrees to remit to Affiliate a Signup Commission on Basic iAffiliate Program subscriptions payable in the amounts and on the terms as set forth in this Agreement as well as in accordance with all applicable Specific Terms for all Offers placed with Affiliate which result in a paid subscription. iEntertainment Network will pay Affiliate 20% on the first twelve (12) months of the Subscription Fee per every Qualified Customer referred from Affiliates web site, and $1.50 for every month that the Qualified Customer remains a subscriber up to 9 months after the initial 3 month time period.
(b) As used in this Agreement:
(i) "Net Monthly Sales" means the net dollar amount actually collected by iEntertainment Network for subscriptions sold to Qualified Customer (as defined below) during a calendar month. Net Monthly Sales are calculated exclusive of transportation and packaging costs, insurance, duties, taxes and other governmental charges, but including all commercial, trade, cash and other discounts actually granted by iEntertainment Network.
(ii) A "Qualified Customer" means any individual or entity that purchases a Basic monthly subscription from iEntertainment Network who has been referred from the Affiliate's Web Site within the period of time as set forth in any applicable iEntertainment Network Specific Terms of clicking through to the iEntertainment Network's Site via hyperlinks from any Affiliate or from any other promotional placement provided by iEntertainment Network.
(iii) A "Registrant" means any individual or entity that submits to iEntertainment Network all information required by iEntertainment Network's registration form within the period of time as set forth in any applicable iEntertainment Network Specific Terms of clicking through to the iEntertainment Network Site via hyperlinks from any Affiliate or from any other promotional placement provided by iEntertainment Network.
(iv) A "Qualified Registrant" is a Registrant who has not previously submitted information to iEntertainment Network and whose registration data is not already known to or possessed by iEntertainment Network.
(c) In the event an individual or entity visited more than one Affiliate or Distribution Partner of iEntertainment Network prior to purchasing Products from or undertaking some other specified action on a iEntertainment Network's Web site, the Affiliate or Distribution Partner operating the last Distribution Medium that such individual or entity clicked through to the iEntertainment Network's Web site shall be the only party entitled to receive an Advertising Fee for the Products sold.
(d) iEntertainment Network shall pay applicable Signup Commission to Affiliate within thirty (30) days after the end of the month in which iEntertainment Network has received payment from each applicable WarBirds subscriber for such Signup Commission. iEntertainment Network shall not be obligated to make any payment of Signup Commissions to Affiliate until (1) it has received payment for such Signup Commissions and (2) the aggregate amount of Signup Commissions due to Affiliate equals or exceeds fifty dollars ($50.00). iEntertainment Network does not aggregate payments remitted to it from multiple sites owned or operated one single Affiliate for the benefit of Affiliate. Any earned but unpaid Signup Commissions shall carry over to the next regularly scheduled payment period.
(e) iEntertainment Network will only remit payment to Affiliate if Affiliate has been accepted by iEntertainment Network as an Affiliate and has provided iEntertainment Network with a correct mailing address and a tax identification number (W-9 form).
(f) iEntertainment Network may make appropriate deductions from future payments for fraudulent or faulty subscriptions.
(g) Amounts credited to Affiliate's account will not bear interest.
(h) Affiliate hereby authorizes iEntertainment Network to electronically transfer (via an automated clearing house or other means) amounts owed to Affiliate to Affiliate's account at the financial institution set forth in the Affiliate Application ("Bank"). Affiliate authorizes Bank to accept and to credit any payments transferred by iEntertainment Network to Affiliate's account. In the event that iEntertainment Network erroneously deposits funds into Affiliate's account, Affiliate authorizes iEntertainment Network to debit Affiliate's account in an amount not to exceed the amount of the erroneous credit. This authorization is to remain in full force and affect until iEntertainment Network and Bank have received written notice from Affiliate of its termination. If Affiliate changes bank accounts, it agrees to immediately notify iEntertainment Network of such change in order to allow iEntertainment Network to update its records accordingly.
(i) iEntertainment Network will retain Affiliates referrals for 60 days, and provide any applicable Signup Commission to Affiliate if the referral becomes a paying subscriber during the initial 60 day time period after referral creates a WarBirds free account. Affiliates will not receive credit for referral traffic that does not convert to a paid subscription within the initial 60 days.
iEntertainment Network covenants and agrees to use its commercially reasonable best efforts: (a) to provide, monitor and maintain the necessary technology applications required to link Affiliate to each iEntertainment Network's Web sites ("iEntertainment Network Technology"). iEntertainment Network Technology shall include the use of tags in HTML/Java or other appropriate languages (the "Tags") to enable iEntertainment Network to serve or provide Offers to Affiliate; (b) to provide GIF or JPEG Images, (c) to provide Affiliate with access to records that will allow it to monitor the volume of Signups delivered by Affiliate and the revenue produced thereby (subject to billing corrections and adjustments) in accordance with Section 3. All such records, including data, statistical information or other traffic analysis, produced or provided by Affiliate shall be the sole property of iEntertainment Network.
Affiliate covenants and agrees to use its commercially reasonable best efforts: (a) to continue to operate and maintain the Distribution Medium (including any Web pages where any Offer appears) in a manner consistent with the intent and purpose of the Distribution Medium; (b) to place Offers on Affiliate's Distribution Medium and (including Web pages where any Offer appears) in accordance with the terms set forth in this Agreement and in accordance with all applicable Terms and Conditions set forth in this Agreement; (c) to maintain its customer list in a manner that conforms with best practices of opt-in solicitation and privacy policies; and (d) to position the Offers on each Distribution Medium (including any Web page where any Offer appears) in such a manner to assure that the Offers are fully and clearly visible to consumers and displayed in a similar manner as other iEntertainment Networks included in the Distribution Medium.
(a) Affiliate agrees to indemnify, defend and hold harmless iEntertainment Network and each applicable iEntertainment Network (and their respective officers, directors, employees, shareholders and agents) from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) directly or indirectly arising from or relating to (i) any breach of this Agreement by Affiliate or (ii) the operation and content of the Distribution Medium. Affiliate acknowledges that each iEntertainment Network who displays or allows to be displayed any Offer on Affiliate's Web site or through any of Affiliate's Distribution Medium is an intended third party beneficiary of these indemnities. Affiliate agrees that it will not assert a defense based upon lack of privity against any iEntertainment Network seeking to enforce these indemnities.
(b) iEntertainment Network agrees to indemnify, defend and hold harmless Affiliate (and its respective officers, directors, employees, shareholders and agents) from and against any and all liability claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) directly or indirectly arising from or relating to any breach of this Agreement by iEntertainment Network.
(c) Neither Affiliate, iEntertainment Network nor any iEntertainment Network shall be liable to one another for any special, consequential (even if a party has been informed of the possibility of such damages), incidental, punitive or indirect damages, losses, costs or expenses of any kind arising out of this Agreement or its termination, however caused, and whether based in contract, tort (including negligence), products liability or any other theory of liability regardless of whether such party has been advised of the possibility of such damages, losses, costs or expenses. Neither Affiliate, nor iEntertainment Network shall be liable to one another for lost or imputed profits arising out of this Agreement or its termination. Each party hereto waives any claims that these exclusions deprive such party of an adequate remedy. Except for liabilities resulting from iEntertainment Network' willful misconduct or recklessness, the liability of iEntertainment Network shall not exceed the total amount of the Signup Commissions actually paid by iEntertainment Network to Affiliate under this Agreement and each applicable. The limitations set forth in this Section 6(c) shall not, however, apply to a breach of Section 7 hereof. Affiliate shall not be liable (i) for any errors or omissions included in the Offers received from iEntertainment Network or (ii) in the event that Affiliate encounters technical or other difficulties, which may occasionally, hinder the operation of the Distribution Medium. iEntertainment Network shall not be liable to Affiliate or any other person or entity for (i) any information provided to any person or entity by any iEntertainment Network or any illegal, inappropriate act or act of misconduct on the part of any iEntertainment Network; (ii) system downtime of iEntertainment Network or any iEntertainment Network; (iii) unauthorized access to, or alteration, theft or destruction of Affiliate's Distribution Medium, data files or systems or programs through accident, fraudulent means or device; or (iv) any claim attributable to errors, omissions or other inaccuracies in the Offers.
In connection with the business relationship contemplated by this Agreement, each party may receive or have access to commercially valuable technical and non-technical confidential or proprietary information of the other party, including information in whatever form, relating to the business of such party that is not generally known or available to others, including source code and documentation for software, trade secrets, know how, customer lists, pricing strategies, marketing and business plans, information concerning a party's vendors, and such party's contemplated plans, strategies and prospects ("Confidential Information"). Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law. If disclosure is required by law, the party required to disclose Confidential Information shall reasonably cooperate with the other party (at the other party's request and expense) so that the other party may preserve the confidentiality of the Confidential Information to the extent reasonably possible.
(a) iEntertainment Network grants Affiliate a limited, non-exclusive, non-transferable, revocable license to use, reproduce and distribute the Offers in accordance with the terms of this Agreement. iEntertainment Network specifically does not grant Affiliate any right to use any iEntertainment Network's trade name without the express written consent of iEntertainment Network. iEntertainment Network grants Affiliate a limited, non-exclusive, non-transferable license for the term of this Agreement to use the iEntertainment Network Technology solely in accordance with the terms of this Agreement. Affiliate grants iEntertainment Network a limited, non-exclusive, non-transferable, revocable license to use, reproduce and distribute its company name and logo for use in iEntertainment Network' promotional materials. Each license granted in this Section 8(a) is hereinafter referred to individually as "Licensed Property."
(b) Neither party shall use the other party's Licensed Property in a manner that disparages the other party or its products or services, or portrays the other party or its products or services in a false, competitively adverse or poor light. Each party shall comply with the other party's requests as to the use of the other party's Licensed Property and will avoid any action that diminishes the value of such marks.
(c) Subject to the limited licenses granted to iEntertainment Network and Affiliate under Section 8(a), each party and each iEntertainment Network owns and shall retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, know how and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express written consent of such party. All data that is collected by iEntertainment Network while performing its obligations under this Agreement is the property of iEntertainment Network. iEntertainment Network currently uses and plans to continue to use data that it collects in an aggregate manner (i.e. that information which is gathered as a group of demographic data, and is not personally or company identifiable).
(a) Representations and Warranties. Each party represents and warrants to the other party that: (i) such party has all necessary right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; and (ii) nothing contained in this Agreement or required by such party's performance hereunder will place such party in breach of any other contract or agreement to which it is bound or violate any applicable law, including obscenity, privacy and defamation laws and (iii) the performance of this Agreement shall not infringe or violate upon the Intellectual Property or privacy rights of any third party. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9(A), NEITHER IENTERTAINMENT NETWORK NOR AFFILIATE MAKE, AND EACH SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE DISTRIBUTION MEDIUM, PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT, AND NON-INFRINGEMENT.
(b) Jurisdiction and Governing Law. Affiliate consents to the exclusive personal jurisdiction of the state and federal courts located in North Carolina and agrees that any claim against iEntertainment Network shall be brought in the state or federal courts located in Wake County, North Carolina. The rights and obligations of the parties under this Agreement shall be governed by and construed under the laws of the State of North Carolina without reference to conflict of laws principles. Affiliate consents to the personal jurisdiction of the state and federal courts located in Wake County, North Carolina and agrees that any lawsuit between Affiliate and iEntertainment Network shall be filed in this venue.
(c) Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
(d) Relationship. The relationship of iEntertainment Network and Affiliate established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venture of the other. The detailed operations of iEntertainment Network under this Agreement are subject to the sole control and management of iEntertainment Network. The parties acknowledge that, except as set forth in Section 5 hereto, this Agreement sets forth a non-exclusive relationship between the parties.
(e) Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective parties as follows. To iEntertainment Network at the address listed on its Web site; to Affiliate at the address set forth in the Affiliate Application; and to iEntertainment Network at its principal business address.
(f) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
(g) Amendments and Waivers. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect. iEntertainment Network reserves the right to modify this Agreement at any time. Any such modification shall be immediately effective upon the posting of the modified Agreement upon the iEntertainment Network' Web site, or the Connect Commerce Web site, or any successor Web site.
(h) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction as part of a final nonappealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.
The individual clicking on this link and submitting this application certifies that she/he is authorized to act on behalf of Affiliate and that she/he, on behalf of Affiliate, has read and accepted the terms, conditions and disclosures associated with this Agreement.