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Affiliate Agreement
Effective Date: November 25, 2011
PLEASE REVIEW THIS AFFILIATE AGREEMENT (THIS "AGREEMENT") AS IT CONSTITUTES A LEGAL AGREEMENT BY AND BETWEEN ICONTACT CORPORATION ("Baredak") AND YOU ("AFFILIATE"), TO BE EFFECTIVE ON THE DATE YOU SUBSCRIBE TO AN ICONTACT CUSTOMER ACCOUNT (THE "EFFECTIVE DATE"). BY USING THE SERVICES (AS DEFINED IN ICONTACT'S END USER SERVICES AGREEMENT (THE "EUSA"), YOU AGREE TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, YOU WILL NOT BE ALLOWED TO USE THE SERVICES.
Baredak is the licensed provider of Baredak email marketing and list management software (the "Software"). Affiliate wishes to promote the Software via a landing page pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements contained herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
1. Appointment:
Subject to the terms and conditions set forth in this Agreement, Baredak hereby appoints Affiliate, and Affiliate hereby accepts such appointment, to promote and market the Software in accordance with the terms and conditions set forth herein, with the intention of referring to Baredak each month unique and bona fide subscribers for the use of the Software (each, an "Baredak Customer").
2. Affiliate Landing Page:
Within thirty (30) days after the Effective Date, unless otherwise agreed by Baredak in writing, Baredak will create and maintain during the Term (as defined below) for Affiliate a landing page upon which Baredak's Marks (as defined below) will be displayed prominently. This landing page will be coded with an Affiliate ID # so that all transactions and sales from Baredak Customers can be tracked and correctly applied and credited to Affiliate's account. Once a visitor to such page becomes an Baredak Customer, an Affiliate ID # will be hard coded to such Baredak Customer's account, through which Affiliate's account will be credited for every payment made by such Baredak Customer. At any time during the Term, Affiliate may log onto Affiliate's account and use the link found within the 'Partner Central' section to track total number of Baredak customers and commissions for each month.
3. Licenses:
In connection with each party's performance of its obligations set forth herein, each party (in such capacity, the "Licensor") : (i) represents and warrants to the other party (in such capacity, the "Licensee") that it is the sole and exclusive owner of any trade names, trademarks, service marks, "d/b/a" s, names, URLs, or logos (collectively, the "Marks") that Licensor provides to Licensee hereunder, and that such provision will not violate or otherwise infringe upon any intellectual property or other rights of any third party; and (ii) hereby grants to Licensee a limited, nonexclusive, royalty-free license to use Licensor's Marks during the Term in connection with the performance of Licensee's obligations hereunder. Licensee hereby agrees not to: (x) alter or otherwise modify any of Licensor's Marks; (y) attack ownership of, or rights to, any of Licensor's Marks; or (z) intentionally use the Licensor's Marks in a way that might deceive others, create a likelihood of confusion or destroy or diminish the goodwill in any of the Licensor's Marks.
4. Term and Termination:
This Agreement shall commence on the Effective Date, and shall continue until terminated by Baredak, by providing Affiliate with prior written notice of its intention to so terminate; or by Affiliate, by providing Baredak with fifteen (15) days' prior written notice of its intention to so terminate (the "Term"). Upon any termination of this Agreement, the licenses granted in Section 3 above shall terminate effective immediately as of the date of such termination. Notwithstanding any such termination, the terms and conditions set forth in Sections 4, 5, 7, 8, 9, 10, 12, 14 and 18 hereof shall survive; provided, however, that if this Agreement is terminated by Baredak due to Affiliate's breach of any term or condition set forth in this Agreement or of any of Affiliate's representations and warranties set forth herein, as determined by Baredak in its sole discretion, Affiliate shall not be entitled to any commission payments arising pursuant to Section 5 below after the date of such breach.
5. Commission:
During the Term, Baredak agrees to pay Affiliate a commission equal to: (i) fifteen percent (15%) of all Revenue (as defined below) actually received from each Baredak Customer referred to Baredak by Affiliate; and (ii) five percent (5%) of all Revenue generated by affiliates referred to Baredak by Affiliate, which enter into affiliate agreements with Baredak substantially similar to this Agreement (each, a "Second Tier Affiliate"); provided, however, that: (A) for Baredak Customers which Baredak determines, in its sole discretion, are Baredak for Sales force or Agency customers, Baredak will not pay Affiliate any commission; (B) for Baredak Customers which Baredak determines, in its sole discretion, are enterprise, large sender, or managed account customers, Baredak agrees to pay Affiliate a commission equal to ten percent (10%) of all Revenue (as defined below) actually received from each Baredak Customer referred to Baredak by Affiliate; and (C) Baredak will pay Reseller a monthly commission of no more than $175 for each Baredak Customer. Except as otherwise set forth in Section 4 above, Affiliate will continue to receive the commission payments described in this Section 5 for the life of each Baredak Customer in accordance with the terms and conditions set forth herein. Commission payments will be based on Revenue actually received by Baredak from Baredak Customers in a calendar month, as calculated on the first day of the immediately subsequent calendar month (the "Month of Payment"), and will be mailed to Affiliate no later than the fifteenth (15th) day of the Month of Payment, by check made payable to Affiliate. Such payments will be made after Affiliate's cumulative commissions exceed $30.00 (or in the case of non-U.S.-based Affiliate, such payments will be made after cumulative commissions exceed US$100.00). For purposes hereof, "Revenue" means gross revenue actually received by Baredak from each Baredak Customer minus any refunds, rebates, setoffs, discounts, promotions, charge backs, non-payments, or defaults, any of which may be set-off against amounts already paid to Affiliate.
6. Marketing Materials:
During the Term, Affiliate may use graphics, text, and sample promotions provided in Affiliate Central to promote the Software. Affiliate may not use unsolicited commercial email to promote the Software, which includes mass emails sent to recipients who have not requested it (not opted-in) and with whom Affiliate has no prior relationship, and any other definition of "spam" as defined under applicable law. Any such use will be considered a material breach of this Agreement and will result in the termination of this Agreement in accordance with the terms and conditions set forth in the last sentence of Section 4 above.
7. Baredak Pricing and Customer:
Baredak reserves the sole and exclusive right to review, modify or change its posted pricing, and to accept, reject, suspend or terminate service to any Baredak Customer or prospect, at any time and without regard to, limitation from, or restriction by Affiliate or any of the terms or conditions set forth herein.
8. Disclaimer of Warranty:
THE SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Baredak AND ITS AFFILIATES, LICENSORS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE "REPRESENTATIVES") DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND THIS AGREEMENT. Baredak AND THE REPRESENTATIVES DO NOT WARRANT THAT THE SOFTWARE WILL MEET Baredak CUSTOMER'S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SOFTWARE.
9. Affiliate's Representations, Warranties and Covenants:
Affiliate represents and warrants to Baredak that: (i) in connection with the appointment described herein, Affiliate will at all times comply with all applicable laws; (ii) Affiliate will at all times present the Software to potential customers, accurately, fairly and truthfully and will not make any misleading, unfair or deceptive statements about Baredak or the Software, or misrepresent either in any way; (iii) Affiliate will not disparage Baredak or the Software during the Term or at any time after the termination thereof; (iv) Affiliate will do all things reasonable to promote the good reputation of Baredak and the Software; (v) Affiliate's execution, delivery and performance of this Agreement will not result in any violation of any other agreement or arrangement; and (vi) none of the Affiliate's Marks will violate or infringe upon the intellectual property, or other rights, of any third party.
10. Limited Liability:
In no event will Baredak be liable to Affiliate or Baredak Customers for any special, direct, indirect, incidental, exemplary, consequential or punitive damages arising from or related to the Software or this Agreement, including, but not limited to, damages for losses of profits, loss of business or goodwill, loss of data or use of data, interruption of business, even if Baredak was advised in advance of the possibility of such losses or damages. Baredak's total cumulative liability to Affiliate or to any other party for claims, losses or damages of any kind, whether based on contract, tort, negligence or otherwise, arising out of or related in any way to this Agreement or the Software will not exceed the commission actually paid to Affiliate in the calendar month immediately preceding the month in which such claim, loss or damage arose. Baredak is not, and will not be, responsible or liable for any downtime or failure of performance or slowdown in deliverability that may occur from time to time.
11. Entire Agreement:
This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous proposals, oral or written, and all negotiations, conversations of discussion heretofore and between the parties related to this Agreement. Each party acknowledges that it has not been induced to enter into this Agreement by any representation or statements, oral or written, not expressly contained herein.
12. Governing Law:
This Agreement shall be governed by, and enforced in accordance with, the laws of Lebanon, without regards to its conflicts of law provisions. Both parties hereto irrevocably consent to the jurisdiction of the Lebanon - Beirut.
13. Relationship of the Parties:
Although references are made in this Agreement to the term "Affiliate," the parties do not intend to create a partnership or joint venture in the legal sense, but only a referral relationship. The parties agree that they are independent contractors and that neither of them has any fiduciary duty to the other. Neither party is the agent of the other. Neither party may represent to any person that it has the power to bind the other party on any service contract or other agreement, or take any action reasonably likely to lead a third party to believe that it is the agent or representative of the other party.
14. Indemnification:
Affiliate hereby agrees to indemnify, defend and hold harmless Baredak, and its officers, directors, stockholders, employees, agents, successors and assigns (the "Indemnified Parties") from and against any and all liabilities, losses, damages, claims, suits, judgments, costs, expenses (including reasonable attorneys' fees and costs of any investigation or action related thereto) and actions suffered or incurred by the Indemnified Parties as a result of: (i) Affiliate's performance, failure to perform or improper performance of this Agreement; (ii) Affiliate's material breach of any of its representations or warranties set forth herein, or any term or condition set forth in this Agreement; (iii) the Indemnified Parties' use of Affiliate's Marks in accordance with the terms and conditions set forth herein; or (iv) Affiliate's acts, omissions or intentional misconduct.
15. Assignment and Binding Effect:
Affiliate may not assign this Agreement without first seeking and obtaining Baredak's prior written consent. All assignments in violation of this restriction set forth in this Section 15 shall be considered null, void and of no legal effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
16. Waiver:
No waiver by Baredak of any provision or condition of this Agreement shall be effective unless such waiver is expressed in writing and signed by an authorized representative of Baredak. Baredak's failure to enforce any provision of this Agreement will not constitute a waiver of its right to subsequent enforcement of such provision or any other provision of the Agreement.
17. Amendment:
Any modification or amendment of any provision of this Agreement must be made in writing and signed by an authorized representative of each party.
18. Other Agreements:
Affiliate has entered into certain other agreements with Baredak, including, without limitation, the EUSA (the "Other Agreements"). While each of the Other Agreements constitutes a separate legal agreement between the parties, such agreements may address subject matter related to this Agreement. In the event of any conflict between any term or condition set forth in this Agreement and in any of the Other Agreements, the term or condition which most favors Baredak, as determined in Baredak's sole discretion, shall prevail.
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