Merchant Agreement - LinkShare Corp. and FindWhat.com
MERCHANT AGREEMENT between LinkShare Corporation, a Delaware corporation
("LinkShare"), and the undersigned merchant ("Merchant" or "You"), dated July
13, 1999.
The LinkShare Network-TM- includes member websites that are potential on-line
sales affiliates for merchants ("LinkShare Sales Affiliates"). Using its
proprietary LinkShare Synergy-TM- software, LinkShare offers services to
facilitate establishing links between merchants and sales affiliates and
tracking sales through those links. This Agreement contains the terms agreed to
by the parties for Merchant's access to the LinkShare Network-TM- and use of
LinkShare's services as an on-line merchant.
1. LINKSHARE NETWORK SERVICES. As a LinkShare merchant, Merchant may use the
relevant area of a LinkShare Website (the "LSN Site") to post offers to
establish Qualifying Links with LinkShare Sale Affiliates, receive and
respond to any counteroffers and, if agreement is reached, conclude binding
link exchange engagements with LinkShare Sales Affiliates. The detailed
procedures and rules governing those activities will be the same as those
applicable to LinkShare Merchants generally and posted on the LSN Site from time
to time.
2. PRIVATE LABEL SERVICES. If you select LinkShare's optional Private Label
Network Services, a special area of the LSN Site (the "PLN Site") under Your
brand or distinctive name Network will be available for You to establish
Qualifying Links with Your own sales affiliates who are not LinkShares Sales
Affiliates ("PLN Sales Affiliates"). Attachment C to this Agreement is part of
this Agreement if you have selected Private Label Network Services.
3. QUALIFYING LINKS; LICENSES SITES. A "Qualifying Link" is a hypertext link
between the website of a LinkShare Sales Affiliate or PLN Sales Affiliate (in
either case, a "Sales Affiliate") with whom You conclude an Engagement to a
Licensed Site of Merchant, with that link being established through the
interface of the LSN Site or the PLN Site using a code that is generated by
LinkShare Synergy client server software You install in the server for Your
relevant Licensed Site and an additional tracking code added at the LSN Site or
PLN Site by LinkShare's software. A "Licensed Site" is each of Your Websites
with the respective URLs identified below Your signature to this Agreement, as
well as any "mirror site" You designate in writing to LinkShare at least ten
business days before its first use in the LinkShare Network, in each case so
long as the site is owned and operated by You.
4. LINKSHARE'S PRICES. You agree to pay LinkShare the application fees and
charges provided for in the attached Pricing Schedule, as and when due. Your
obligations to pay any unpaid fees and charges accruing before expiration or
termination of this Agreement will survive expiration and termination.
5. MONTHLY REPORTS. Within ten business days after the end of each calendar
month during which You have a Qualifying Link, LinkShare will provide You,
online at a password-protected area of the LSN Site or PLN Site, with a report
showing Your attributable Gross Sales, calculated as explained in the attached
Pricing Schedule. To the extent Your Engagements provide for You to compensate a
Sales Affiliate by a commission based on Gross Revenues from sales through the
relevant Qualifying Link, that report will also show the commissions due from
You to that Sales Affiliate for the month. Our obligation to furnish such
reports or perform other tracking,
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date collection or reporting functions is conditioned on such links being
properly established, formatted and maintained in accordance with LinkShare's
requirements.
6. INTEROPERABILITY. LinkShare will provide You with the client server software
for the interface of each Licensed Site with the LinkShare website contemplated
by this Agreement. LinkShare will provide Merchant, at no separate charge, up to
four hours of telephonic technical assistance with regard to installing the
LinkShare software and establishing such interface. Additional technical
assistance may be purchased as provided in the Pricing Schedule. All technical
assistance will be provided on the same terms and conditions as LinkShare
provides it to LinkShare Merchants generally.
7. CERTAIN OTHER AGREEMENTS OF MERCHANT. Merchant agrees that it will not, and
will cause its corporate affiliates not to, directly or indirectly: (i) enter
into any agreement, arrangement or understanding or engage in any course of
conduct with the intent of reducing payments to which LinkShare otherwise would
be entitled hereunder or to otherwise take unfair advantage of LinkShare or its
services or that has any such effect, (ii) utilize or offer to affiliated or
unaffiliated third parties any service or software package (whether proprietary
to Merchant or a third party) that is in competition with or a substitute for
the LinkShare software or services made available pursuant to this Agreement, or
(iii) develop or actively assist a third party in the development of a system,
software, network or service that is competitive with or could serve as a
substitute for the LinkShare software, network or services made available
pursuant to this Agreement. If this Agreement is terminated during the initial
or any renewal term by LinkShare because of a material breach of this Agreement
by You or for just cause, Your obligations under this Section 7 shall continue
for a period of time after such termination equal in length to the unexpired
balance of such term as of the time of such termination plus an additional
twelve months.
8. TERM AND TERMINATION. (a) Unless terminated sooner as provided below, this
Agreement will remain in effect for an initial term of six consecutive months
beginning as of the date of this Agreement. Unless either party gives the other
written notice of termination no later than ten business days prior to the
expiration date of the then-existing initial or renewal term, this Agreement
will automatically renew for consecutive twenty-four months terms.
(b) Either party may terminate this Agreement if the other party
materially breaches its obligations hereunder and such breach remains uncured
for thirty days following written notice of the breach given to the breaching
party. Any rights or remedies of either party arising out of a breach or
violation of any terms of this Agreement by the other party will survive
expiration or termination of this Agreement.
(c) LinkShare may terminate or suspend Merchant's or any Sales
Affiliate's access to all or part of the LinkShare Network, the LSN Site and the
PLN Site for just cause, including, but not limited to, default in payment
obligations to LinkShare or Sales Affiliates, inappropriate use, persistent
failure to comply with the rules applicable to users generally, the posting of
content that is libelous, defamatory, obscene, pornographic, "adult-oriented,"
relates to gambling or use of illegal substances, abusive or overly violent or
LinkShare's good faith determination
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that Merchant's use adversely impacts LinkShare's reputation or good relations
with its merchants and Sales Affiliates generally or violates any law or any
third party's rights.
9. CERTAIN LIABILITY LIMITATIONS. (a) EXCLUSION OF WARRANTIES. TO THE FULLEST
EXTENT PERMISSABLE PURSUANT TO APPLICABLE LAW, EACH PARTY DISCAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NONINFRINGEMENT.
(b) NO CONSEQUENTIAL DAMAGES. EXCEPT AS PROVIDED BELOW, NEITHER PARTY
WILL HAVE ANY LIABILITY IN CONNECTION WITH OR RESULTING FROM THIS AGREEMENT OR
ANY OF THE CONTEMPLATED LINKS, SERVICES, ACTIVITIES OR RELATIONSHIPS FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES, EVEN IF SUCH
PARTY WAS AWARE THAT SUCH DAMAGES COULD RESULT. The foregoing exclusion shall
not apply for the benefit of the breaching party in the case of any breach of
the provisions relating to confidentiality or intellectual property, any breach
of Section 7 or any purported termination of this Agreement not permitted by its
terms. This section 9(b) shall survive failure of an exclusive or limited
remedy.
(c) MAXIMUM LIABILITY. EXCEPT AS PROVIDED BELOW, THE MAXIMUM AGGREGATE
LIABILITY OF EACH PARTY UNDER OR RELATED TO THIS AGREEMENT IS LIMITED, FOR
LINKSHARE, TO THE AMOUNT OF FEES ACTUALLY PAID TO LINKSHARE BY MERCHANT DURING
THE TERM OF THIS AGREEMENT AND, FOR MERCHANT, TO THE AMOUNT OF FEES AND CHARGES
PAID OR ACCURED DURING THE TERM. The foregoing limitation shall not apply for
the benefit of the breaching party in the case of a breach of the provisions
relating to confidentiality or intellectual property, a breach of Section 7 or a
purported termination of this Agreement not permitted by its express terms.
(d) This Section 9 will survive any expiration or termination of this
Agreement.
10. MISCELLANEOUS. (a) The parties are independent contractors. Nothing in this
Agreement and no course of dealing between the parties will confer upon Merchant
any exclusive rights with respect to the LinkShare Network or LinkShare's
software or services.
(b) This Agreement may not be assigned by either party, in whole or in
part, without the express prior written consent of the other party, which will
not be unreasonably withheld or delayed. Reasonable grounds for LinkShare
withholding any such consent shall include, without limitation, that a proposed
assignee is a competitor or a corporate affiliate of a competitor. Assignment of
this Agreement to a successor to substantially all of either party's business
will not require the other party's consent, but LinkShare may terminate this
Agreement if direct or indirect control of your on-line merchandising business
is acquired by a LinkShare competitor.
(c) This Agreement shall be governed by the internal laws of the State
of New York. This Agreement is the entire agreement between the parties
pertaining to its subject matter and
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all written or oral agreements, representations, warranties or covenants, if
any, previously existing between the parties are canceled. The statements about
the LinkShare Network or LinkShare's Software or services on its Website or
otherwise are not representations, warranties or other contractual obligations.
Any amendments of this Agreement must be in writing and signed by both parties.
No failure or delay in exercising any power, right, or remedy under this
Agreement will operate as a waiver. A waiver, to be effective, must be written
and signed by the waiving party.
EACH PARTY HAS READ THIS AGREEMENT, INCLUDING THE ATTACHED PRICING SCHEDULE,
ATTACHMENT B AND, IF APPLICABLE, ATTACHMENT C, AND AGREES TO BE BOUND BY ALL THE
TERMS AND CONDITINS HEREOF (INCLUDING SUCH ATTACHMENTS).
LINKSHARE CORPORATION
BeFirst.com
---------------------------------- By: /s/ Heidi S. Messer
[Insert Name of Merchant] --------------------------------
By: /s/ Courtney Jones
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Name/Title: Courtney Jones
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Chairman BeFirst
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LICENSED SITE URL(S) INITIALS OF PARTIES
www.befirst.com
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www.findwhat.com
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