Massachusetts Bay Trading Company
By completing and sending in the accompanying registration form you are agreeing to the terms and conditions of this Agreement, and entering into a legal agreement with Massachusetts Bay Trading Company ("MBTC"), which contains all of the terms and conditions below and governs your participation in the Massachusetts Bay Trading Company Affiliate program.
For purposes of this Agreement, the following terms will have the indicated meanings:
1. Affiliate: The name of the company or individual or other corporate entity provided in the registration form which is the owner or operator of an Internet web site that displays descriptions and links to MBTC for its viewers.
2. Affiliate's Web Site: The web pages of Affiliate, as indicated in Affiliate's registration form "URL of Site."
3. Merchant: An MBTC customer that sells products and/or services on the Internet.
4. Licensed Materials: The Affiliate Links and the software code, functionality and/or URL's that enable an end user of Affiliate Links to access MBTC.
5. Effective Date: The date when Affiliate agrees to this Agreement by completing and sending in this Agreement's accompanying registration form.
III.GRANT OF LICENSE
1. License: Subject to the terms and conditions of this Agreement, MBTC grants to Affiliate a limited, non-exclusive, non-assignable, non-transferable, non-sub-licensable royalty-free license during the term of this Agreement to display the Licensed Materials on Affiliate's Web Site, solely in connection with the exercise of Affiliate's rights under this Agreement.
2. Use: Affiliate shall apply, use, display and reproduce the Licensed Materials, in the size, place, and manner MBTC may indicate from time to time, on Affiliate's Web Site and related materials. Affiliate shall display such Licensed Materials only in a manner that complies in all material respects with MBTC's Usage Guidelines found on MBTC's website at http://www.massbaytrading.com, and as modified from time to time by MBTC in its sole discretion.
3. Ownership: Affiliate acknowledges that all right, title and interest in the Licensed Materials are exclusively owned by MBTC and/or its licensors, and that no right other than the limited license granted herein is provided to Affiliate. Affiliate shall not assert copyright, trademark or other intellectual property ownership or other proprietary rights in the Licensed Materials or in any element, derivation, adaptation, variation or name thereof. Without limiting the foregoing, Affiliate hereby assigns to MBTC all worldwide right, title and interest in the Licensed Materials and in any material objects consisting of the Licensed Materials and/or any MBTC trademark, trade name or service mark.
4. Ownership of Goodwill: Affiliate agrees that its use of the Licensed Materials, including all MBTC trademarks, service marks and/or trade names incorporated therein, inures to the benefit of MBTC. All goodwill or reputation in the Licensed Materials shall automatically vest in MBTC when the Licensed Materials are used by Affiliate pursuant to this Agreement. Affiliate shall not contest the validity of any of the MBTC trademarks, service marks or trade names or MBTC's exclusive ownership of them. During the term of this Agreement, Affiliate shall not adopt, use, or register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, any of the MBTC trademarks, service marks or trade names, or any word or mark confusingly similar to them in any jurisdiction.
IV. MBTC'S RIGHTS AND RESPONSIBILITIES
1. Affiliate Link: MBTC will provide to Affiliate an Affiliate Link that will enable a user to click on hyperlinked text that will enable such end users of Affiliate's Web Site to access MBTC .
2. MBTC Placement at Affiliate's Site: The Affiliate link will be displayed on Affiliate's Web Site, in a form, manner and presentation in accordance with the Usage Guidelines attached hereto as Exhibit B and instructions posted by MBTC, as modified by MBTC from time to time.
V. AFFILIATE'S RESPONSIBILITIES
1. Affiliate's Implementation Responsibilities: Affiliate shall enable end users of Affiliate's Web Site to enter MBTC in order to make purchases from MBTC.
2. Changes: Affiliate shall not change the Licensed Materials or any other material that may be licensed to Affiliate. Additionally, Affiliate may not subvert any part of MBTC's system by adding, deleting or changing any portion of Affiliate Links and Affiliate may not frame or cache MBTC.
3. Affiliate's Site: Affiliate agrees that it is solely responsible for the development, maintenance and operation of Affiliate's Web Site and for all materials and content that appear on Affiliate's Web Site.
4. Publicity: Affiliate may not create, publish, or distribute any item that references MBTC without first submitting those items to MBTC and receiving MBTC's written consent. Affiliate may not issue any press release or other public statements regarding this Agreement without MBTC's prior written approval. The failure to obtain the prior written approval of MBTC shall be deemed a material breach of this Agreement.
5. Wrongful Acts: Affiliate shall not access the Licensed Material through any of the following: (a) "blind links" (i.e. where end users do not know that they will be accessing MBTC; (b) links in which an end user is persuaded to perform a MBTC General Store purchase in order to obtain some other benefit; (c) searches from or after "404 errors" or other error messages; (e) "exit traffic" (i.e. when the end user is presented with Affiliate Link functionality or required to perform an Affiliate Link prior to exiting a web page); (f) Affiliate Link required of the end user in order for the user to do another function, such as leaving a web page or closing a pop-up window; (g) Affiliate Link performed upon an end user hitting the back button or any other element of the browser; (h) Affiliate Link in pop-up windows; (i) Affiliate Link from adult sites; (j) Affiliate Link originating outside of the United States, Canada, United Kingdom, Ireland, or Germany or those other countries where MBTC is authorized to conduct business; (k) the syndication or delivery of the Licensed Material to any site or application not approved in writing by MBTC or to any third party not approved in writing by MBTC; and (l) any other method or mechanism that violates MBTC's written policies, as communicated to Affiliate from time to time (including communication through Affiliate-related areas of MBTC's web site). If Affiliate violates any provision of this Section, then MBTC may terminate this Agreement immediately upon notice to Affiliate, and the related terms of Section X (Termination) and Section VI (Consideration) apply.
6. Confusing URLs: Affiliate shall not make available the Licensed Material, or maintain web pages, at URLs that are confusingly similar to those of any other web sites.
1. Consideration: After the first thirty (30) days, MBTC will pay Affiliate a commission expressed as a percentage for purchases made at MBTC tax excluded according to the following schedule:
Standard MBTC Partners: 5%
MBTC has no obligation to pay Affiliate for commissions that are in violation of the Section titled "Wrongful Acts" or any other provision of this Agreement. If Affiliate has been acting in violation of this Agreement, then MBTC will assume all purchases to have been generated by those actions, unless Affiliate can provide proof that such purchases were valid purchases.
2. Terms: MBTC will pay Affiliate sixty days (60) after the end of each calendar month for all commissions earned under Section VI.1 during the prior month, less any taxes MBTC may be required to withhold, and less any amount MBTC determines, in its sole discretion, was not validly earned from proper use of the Licensed Materials on Affiliate's Web Site. If commissions earned during any calendar month are less than $25, then MBTC, in its sole discretion, may hold those commissions until the month in which the total amount due is at least $25 or (if earlier) until this Agreement is terminated. Payments will be made in immediately available U.S. Dollar funds.
3. Reporting: MBTC will provide Affiliate with the ability to obtain a password that will enable Affiliate to enter a password-protected site or an area of a site communicated to Affiliate by MBTC. Affiliate may use the password to log in to that site solely to access information about the number of times the Affiliate Link on Affiliate's Web Site has generated a purchase. Affiliate understands and agrees that MBTC pays commissions solely on a percentage basis, and that in the case of returned sales, the dollar amount of purchases may be adjusted.
4. Other: Affiliate's commissions are for Affiliate's use only and therefore may not be offered, directly or indirectly, in whole or in part, to end users in the form of rebates, coupons, commissions, refunds or any other manner.
VII. REPRESENTATIONS AND WARRANTIES
1. MBTC's Warranties: MBTC represents and warrants that it has full power and authority to enter into this Agreement. MBTC does not warrant that MBTC or the Licensed Materials will meet all of Affiliate's requirements or that performance of MBTC or Licensed Materials will be uninterrupted or error-free. MBTC AND ITS LICENSORS MAKE NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NONINFRINGEMENT.
2. Affiliate's Warranties: Affiliate represents and warrants that: (i) it has full power and authority to enter into this Agreement; (ii) Affiliate either resides in the United States or Canada if an individual, or has its main place of business in the United States or Canada for all other entities; (iii) Affiliate has the legal capacity to enter into his agreement; and (iv) the content on Affiliate's Web Site, and/or the technology used by Affiliate in connection with Affiliate's Web Site and/or the means by which users access Affiliate's Web Site: (a) are owned, validly licensed for use by Affiliate or in the public domain; (b) do not constitute defamation, libel, obscenity, hate, discrimination; (c) do not violate applicable law or regulations; (d) do not infringe or violate any copyright, patent, trademark or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of any person or entity, including without limitation, rights of privacy and publicity; and (e) do not result in any consumer fraud, product liability, breach of contract to which Affiliate is a party or cause injury to any third party.
1. During the term of this Agreement, Affiliate may have access to certain non-public information of MBTC, which information a reasonable person would consider confidential or which is marked as "confidential" or "proprietary" by MBTC ("Confidential Information"). Confidential Information does not include information that is generally known and available, or in the public domain through no fault of Affiliate's. Affiliate agrees (i) not to disclose any Confidential Information to any third parties, (ii) not to use any Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement, and (iii) to keep the Confidential Information confidential using the same degree of care Affiliate uses to protect its own confidential information, as long as Affiliate uses at least reasonable care. Each party acknowledges and agrees that due to the unique nature of the Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow one party or third parties to unfairly compete with the other party resulting in irreparable harm to non-breaching party and, therefore, that upon any such breach or threat thereof, the non-breaching party shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law. In addition, if the non-breaching party prevails in any legal dispute hereunder, it shall be entitled to collect its reasonable attorneys' fees and expenses. The sole jurisdiction and Affiliate for actions related to the subject matter hereof shall be the Massachusetts state and U.S. federal courts having within their jurisdiction the location of MBTC's principal place of business, or in the county of Middlesex, Massachusetts. Each party consents to the jurisdiction of such courts. All obligations under this Section VIII survive for five (5) years after termination of the Agreement.
1. MBTC's Indemnification: MBTC shall defend and/or settle, and pay damages awarded pursuant to, any third party claim brought against Affiliate, which alleges facts that would constitute a breach of any warranty or representation made by MBTC under this Agreement; provided that Affiliate promptly notifies MBTC in writing of any such claim, promptly tenders the control of the defense and settlement of any such claim to MBTC (at MBTC's expense and with MBTC's choice of counsel), and cooperates fully with MBTC (at MBTC's request and expense) in defending or settling such claim, including but not limited to providing any information or materials necessary for MBTC to perform the foregoing.
2. Affiliate Indemnification: Affiliate shall defend and/or settle, and pay damages awarded pursuant to, any third party claim brought against MBTC, which would constitute a breach of any warranty, representation or covenant made by Affiliate under this Agreement; provided that MBTC promptly notifies Affiliate in writing of any such claim and promptly tenders the control of the defense and settlement of any such claim to Affiliate at Affiliate's expense and with Affiliate's choice of counsel. MBTC shall cooperate with Affiliate, at Affiliate's expense, in defending or settling such claim. Affiliate will not enter into any settlement or compromise of any such claim without MBTC's prior consent, which shall not be unreasonably withheld.
3. Limitation of Liability: EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO BREACH OF THE CONFIDENTIALITY PROVISIONS HEREIN OR OBLIGATIONS UNDER SECTION IX, NEITHER PARTY OR ANY OF MBTC'S LICENSORS WILL BE LIABLE FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT, PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE, AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL MBTC'S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE NET AMOUNT PAYABLE TO AFFILIATE UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
X. INDEPENDENT INVESTIGATION
AFFILIATE ACKNOWLEDGES THAT AFFILIATE HAS READ THIS AGREEMENT, HAS HAD AN OPPORTUNITY TO CONSULT WITH ITS OWN LEGAL ADVISORS IF AFFILIATE SO DESIRED, AND AGREES TO BE BOUND BY ALL OF THIS AGREEMENT'S TERMS AND CONDITIONS. AFFILIATE AGREES THAT, IN INTERPRETING THIS AGREEMENT, NO WEIGHT SHALL BE PLACED UPON THE FACT THAT THIS AGREEMENT HAS BEEN SUBSTANTIALLY DRAFTED BY MBTC, AND THAT AFFILIATE SHALL NOT ASSERT THAT THIS AGREEMENT IS UNENFORCEABLE OR INVALID ON THE GROUNDS THAT IT IS A CONTRACT OF ADHESION, THAT IT IS UNCONSCIONABLE, OR ANY SIMILAR THEORY. AFFILIATE UNDERSTANDS THAT MBTC MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT. MBTC MAY ALSO SOLICIT AFFILIATE RELATIONSHIPS WITH ENTITIES THAT OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH AFFILIATE'S WEB SITE. AFFILIATE FURTHER UNDERSTANDS THAT MBTC MAY AT ANY TIME OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH AFFILIATE'S WEB SITE. AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
1. Term: The term of this Agreement (the "Term") shall commence on the date Affiliate agrees to the terms and conditions of this Agreement and shall continue in force thereafter, unless earlier terminated as provided herein.
2. Termination for Breach: If Affiliate breaches any covenant, representation and/or warranty of this Agreement, if Affiliate engages in any acts prohibited in this Agreement (including in the Wrongful Acts section,) or if Affiliate engages in any action that, in MBTC's sole discretion, reflects poorly on MBTC or otherwise disparages or devalues MBTC's trademarks, service marks, tradename, reputation or goodwill, MBTC may terminate the Agreement immediately upon notice to Affiliate. If MBTC terminates this Agreement under this Section, then MBTC may retain, as an administrative fee, amounts otherwise due up to $100.
3. Termination for Convenience: Either party may terminate this Agreement on thirty (30) days written notice to the other party for any reason and without liability for that termination.
4. Termination Due to Insolvency: Either party may suspend performance and/or terminate this Agreement if the other party makes any assignment for the benefit of creditors or has any petition under bankruptcy law filed against it, which petition is not dismissed within 60 days of such filing, or has a trustee or receiver appointed for its business or assets or any party thereof.
5. Effect of Termination: Upon the termination of this Agreement for any reason all license rights granted herein shall terminate immediately, and Affiliate shall immediately cease use of the Licensed Materials and of all MBTC trademarks, service marks and tradenames incorporated in the Licensed Materials.
1. Survival. In the event of any termination or expiration of this Agreement for any reason, Sections III.3., III.4., VII., VIII., IX., X, XI.5. and Section XII. shall survive termination.
2. Notice. All notices to MBTC shall be given electronically to legal@Massbaytrading.com with a written copy to Massachusetts Bay Trading Company, 120 Concord Road, Weston, Massachusetts, 02493 or to 603-691-0248 (fax), Attention: General Counsel. All notices to Affiliate shall be given electronically to the electronic mail address listed in the accompanying registration form with a written copy to Affiliate at the physical address also listed in the accompanying registration form. All notices must be sent to the addresses described above, or to such other address that the receiving party may have provided for the purpose of notice in accordance with this Section. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid.
3. Assignment. Neither party may assign its rights or delegate its obligations under this Agreement without the other party's prior written consent, except to the surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets, so long as such surviving entity or purchaser shall expressly assume in writing the performance of all of the terms of this Agreement.
4. No Third Party Beneficiaries. All rights and obligations of the parties hereunder are personal to them. This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
5. Governing Law. This Agreement will be governed and construed, to the extent applicable, in accordance with United States law, and otherwise, in accordance with California law, without regard to conflict of law principles. Except for requests for injunctive relief, any dispute or claim arising out of or in connection with this Agreement shall be finally settled by binding arbitration in the City of Weston, the County of Middlesex, Massachusetts under the Commercial Rules of the American Arbitration Association by one arbitrator appointed in accordance with said rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
6. Independent Contractors. The parties are independent contractors. This Agreement shall not be construed to create a joint venture or partnership between the parties. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.
7. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party.
8. Compliance with Law. Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under this Agreement.
9. Entire Agreement. This Agreement (including the Agreement, these Terms and Conditions and all exhibits attached thereto) constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any other prior or collateral agreements (including without limitation, any warranties) with respect to the subject matter hereof. Any amendments to this Agreement must be in writing and executed by an authorized officer of the parties.
10. Severability. If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties hereto and has like economic effect.
11. Waiver. The terms or covenants of this Agreement may be waived only by a written instrument executed by the party waiving compliance. The failure of either party at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce the same. No waiver by either party of the breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach or a waiver of the breach of any other term or covenant contained in this Agreement.
12. Section Headings. The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.