Online Study Affiliate Marketing Agreement

Transcription

1 Online Study Affiliate Marketing Agreement This Affiliate Marketing Agreement (the "Agreement") contains the complete terms and conditions that apply to your participation as an Affiliate Marketer ("you," "your," yours," or "Affiliate Marketer") of LifeWay Christian Resources ( we, our, ours, LifeWay ) and the establishment of a promotions page and links from your web site(s) (the "Affiliate Marketer site") to our web site located at In consideration of the agreements and obligations set forth herein, the parties hereto hereby agree as follows: 1. PROMOTION PAGE, LINKS AND CONTENT. a. Promotions Page. As promptly as practicable after the date hereof, LifeWay will provide to you: (i) content in html format: a promotions page already coded/designed for integration with your existing site. This content may be reformatted in order to best fit your web page construction. (ii) images and promotions blurbs: a collection of online images and suggested marketing verbiage available for Affiliate Marketer to use in associated promotions of this online study. (iii) guidelines for use: a list of recommended ways to implement and maintain the promotions page and other online marketing of this study. (iv) links: unique link(s) to that will accommodate the affiliate relationship outlined in this agreement. b. Agreements Regarding Promotions Page. (i) You agree to cooperate fully with LifeWay in order to establish and maintain the promotions page, links and content. You also agree to display on the promotions page only those LifeWay-branded images or LifeWay content which are provided, or approved in writing, by LifeWay. (ii) You agree that the Affiliate Marketer site will not in any way copy or resemble the look and feel of the LifeWay.com site, nor will you create the impression that the Affiliate Marketer site is the LifeWay.com site or is a part of the LifeWay.com site. You also agree that the Affiliate Marketer site will not contain any content of the LifeWay.com site or any materials which are proprietary to LifeWay (iii) You agree the Affiliate Marketer site domain name(s) do not and will not contain the words "LifeWay," "LifeWay Christian Resources", other trademarks or trade names of Lifeway or any variation thereof. (iv) You agree to reproduce, and agree not to remove or obscure, any proprietary rights legends (such as copyright notices, among others) or license terms and conditions included with any LifeWay content provided in connection with this Agreement. 2. RESPONSIBILITIES OF LIFEWAY. a. LifeWay will be solely responsible for providing to Affiliate all content, images, links, sample marketing verbiage and usage guidelines as described in 1.a above. b. LifeWay will be solely responsible for processing every online study sale linked directly from the Affiliate site. c. LifeWay will track all online study sales attributable to Affiliate for the purpose of Affiliate payment as outlined in this document. LifeWay will supply Affiliate reports of online study sales attributable to Affiliate on a weekly basis via . Last printed: 9/22/2004 Page 1

2 d. LifeWay will process payment on a monthly basis to Affiliate based on online study sales attributable to Affiliate. Revenue accrued to Affiliate must equal or exceed $100 for a monthly payment to be processed. If accrued revenue for any month is less than $100, the accrued revenue will be carried over and applied to the next subsequent month. e. LifeWay will pay Affiliate based on the number of sales of the online study attributable to Affiliate. A schedule of payment amounts is described in the Addendum attached to this Agreement. f. LifeWay will be responsible for handling all customer service issues related to the online study process, including but not limited to, sign-up, purchase, access, interaction and general inquiries. This excludes all such customer service issues related to the promotion of the online study on the Affiliate site. 3. RESPONSIBILITIES OF AFFILIATE. a. Affiliate will be solely responsible for the development, operation and maintenance of its LifeWay online study promotion page and for all materials that appear on it. Such responsibilities include, but are not limited to: (i) ensuring the technical operation of its page; (ii) ensuring the accuracy and appropriateness of materials posted on the page; (iii) ensuring content posted on its page does not violate any law, rule or regulation, or infringe upon the rights of any third party (including, for example, copyright, trademarks, privacy or other personal or proprietary rights); and (iv) ensuring content posted on its page is not libelous or otherwise illegal. b. Affiliate will be responsible for all online and offline promotions of the Bible study represented on the Affiliate site. c. Affiliate will be responsible for handling all customer service issues related to the promotion of the online study on the Affiliate site. 4. LICENSES. a. Subject to the terms and conditions of this Agreement, LifeWay hereby grants to you a non-exclusive, nontransferable, revocable and limited license to reproduce and display the LifeWay trademarks and logos provided by LifeWay to you hereunder (the "LifeWay Trademarks") and LifeWay content as contemplated in this Agreement. Any use and display of such LifeWay Trademarks except as contemplated under this agreement must be approved in writing by LifeWay prior to use. This license may be revoked in whole or in part by LifeWay in its sole discretion by written notice to you. Furthermore, this license shall terminate upon the effective date of the expiration or termination of this Agreement, and you shall immediately cease using and remove all LifeWay Trademarks and content from the Affiliate site and any other of your materials. b. Subject to the terms and conditions of this Agreement, you hereby grant to LifeWay a non-exclusive, nontransferable, limited license to reproduce and display all Affiliate Marketer logos, trademarks, trade names and similar identifying material provided by you hereunder (the "Affiliate Trademarks") for LifeWay to refer to you as a participant in the LifeWay Affiliate Agreement. Any use and display of such Affiliate Trademarks except as contemplated under this agreement must be approved in writing by Affiliate prior to use. Such license shall terminate upon the effective date of the expiration or termination of this Agreement, and LifeWay shall immediately cease using and remove all Affiliate Trademarks from the LifeWay site and any other LifeWay materials. 5. CONSIDERATION. Qualifying Purchase. A qualifying purchase is defined as a paid enrollment in the specific LifeWay online Bible study covered in this Affiliate Agreement. The paid enrollment must be directly attributable to the Affiliate through the use of a unique trackable Internet link supplied by LifeWay to the Affiliate. A paid Last printed: 9/22/2004 Page 2

3 enrollment will cease to be a qualifying purchase if the enrollee cancels enrollment in the online study within thirty (30) days of enrollment. 6. POLICIES AND CUSTOMER INFORMATION. LifeWay considers all users who purchase the online study to be customers of LifeWay. Accordingly, all LifeWay rules, policies and operating procedures concerning sales and customer service will apply to those customers. LifeWay may change its policies and operating procedures at any time. The parties hereto agree that LifeWay shall have no obligation to share any customer information collected by LifeWay, including but not limited to the name, address, address of the customer, or any related products ordered. Furthermore, to the extent LifeWay shares with you any customer information collected by or on behalf of LifeWay, you shall maintain such information in confidence as LifeWay confidential and trade secret information in accordance with Section 9 hereof. 7. REPRESENTATIONS AND WARRANTIES. a. You hereby represent and warrant to LifeWay as follows: (i) This Agreement has been duly and validly executed and delivered by you and constitutes the legal, valid and binding obligation of you, enforceable against you in accordance with its terms. (ii) You are duly organized, validly existing and in good standing under the laws of your State of organization, and have full corporate power and authority to execute, deliver and perform this Agreement. (iii) The execution, delivery and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time or both, conflict with or violate (A) any provision of law, rule or regulation to which you are subject, (B) any order, judgment or decree applicable to you or binding upon your assets or properties, (C) any provision of your organizational documents, or (D) any agreement or other instrument applicable to you or binding upon your assets or properties. (iv) You are the owner or licensee of the Affiliate Trademarks and have all the rights and power to license to LifeWay (A) the Affiliate Trademarks and (B) all materials provided by you to LifeWay hereunder. Furthermore, such license does not and will not (1) breach, conflict with or constitute a default under any agreement or other instrument applicable to you, your assets or properties, the Affiliate Trademarks or the materials provided by you, or (2) infringe upon any trademark, trade name, service mark, copyright or other proprietary right of any other person or entity. (v) To the best of your knowledge, no consent, approval or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery and performance of this Agreement or the taking by you of any other action contemplated hereby. (vi) To the best of your knowledge there is no pending or threatened claim, action or proceeding against you, or any affiliate thereof, with respect to the execution, delivery or consummation of this Agreement and, to the best knowledge of you, there is no basis for any such claim, action or proceeding. b. LifeWay hereby represents and warrants to you as follows: (i) This Agreement has been duly and validly executed and delivered by LifeWay and constitutes the legal, valid and binding obligation of LifeWay, enforceable against LifeWay in accordance with its terms. (ii) LifeWay is duly organized, validly existing and in good standing under the laws of the State of Tennessee, and has full power and authority to execute, deliver and perform this Agreement. (iii) The execution, delivery and performance by LifeWay of this Agreement and the consummation by it of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time or both, conflict with or violate (A) any provision of law, rule or regulation to which LifeWay is subject, Last printed: 9/22/2004 Page 3

4 (B) any order, judgment or decree applicable to LifeWay or binding upon its assets or properties, (C) any provision of the organizational documents of LifeWay or (D) any agreement or other instrument applicable to LifeWay or binding upon its assets or properties. (iv) LifeWay is the owner or licensee of the LifeWay Trademarks and has all the rights and power to license to Affiliate Marketer (A) the LifeWay Trademarks as provided hereunder and (B) all materials provided by LifeWay to Affiliate Marketer hereunder. Furthermore, such license does not and will not (1) breach, conflict with or constitute a default under any agreement or other instrument applicable to LifeWay, LifeWay's assets or properties, the LifeWay Trademarks or the materials provided by LifeWay, or (2) infringe upon any trademark, trade name, service mark, copyright or other proprietary right of any other person or entity. (v) To the best of its knowledge, no consent, approval or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by LifeWay in connection with the execution, delivery and performance of this Agreement or the taking by LifeWay of any other action contemplated hereby. (vi) To the best of its knowledge there is no pending or threatened claim, action or proceeding against LifeWay, with respect to the execution, delivery or consummation of this Agreement and, to the best knowledge of LifeWay, there is no basis for any such claim, action or proceeding. 8. TERM; TERMINATION. a. The term of this Agreement will begin upon our mutual acceptance of the content herein and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. b. Upon the effective date of termination or expiration of this Agreement, (i) each party shall return to the other party any confidential information of the other party, and shall immediately cease to use any of the other party's trademarks and Content, (ii) the rights and obligations of each party herein shall terminate, and (iii) LifeWay will pay Affiliate any accrued revenue attributable to the sale of the online study. 9. CONFIDENTIALITY. Except as otherwise provided in this Agreement or with the consent of the other party hereto, you and LifeWay each agrees that all information ("Confidential Information") including, without limitation, the terms and conditions of this Agreement, business and financial information, customer and vendor lists and pricing and sales information, concerning you or LifeWay (each herein, a "Disclosing Party"), or any affiliates (by common ownership) of the Disclosing Party, shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by or on behalf of the party receiving such information (each herein, a "Receiving Party") for its own business purposes or for any other purpose. As used herein "Confidential Information" shall not include information that (i) is already known to the Receiving Party at the time such information is obtained from the Disclosing Party; (ii) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by the Receiving Party in violation of this Agreement; (iii) is or becomes available to the Receiving Party on a non-confidential basis from a source, other that the Disclosing Party, which to the knowledge of the Receiving Party is not prohibited from disclosing such information by a contractual, legal or fiduciary obligation; or (iv) has been independently developed by the Receiving Party without violating any of its obligations under this Agreement. 10. PUBLICITY. Subject to Sections 4(b) and 9 hereof, neither party shall (i) create, publish, distribute or permit any written material which makes reference to the other party hereto without first submitting such material to the other party and receiving the prior written consent of such party, nor (ii) disclose to the public or any third party the relationship between them or the transactions contemplated by this Agreement without receiving the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Neither party hereto shall issue a press release describing the relationship or the terms of this Agreement without the other Last printed: 9/22/2004 Page 4

5 party's prior written approval. Neither party shall misrepresent the relationship between the parties hereunder (such as making any reference to any endorsement or sponsorship of the other party) in any communication. 11. CONTENT. a. Affiliate acknowledges LifeWay.com contains information, data, software, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material that are protected by copyrights, trademarks, trade secrets, or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. In addition to the copyright protection for individual works, all content is copyrighted as a collective work under the U.S. copyright laws, and LifeWay owns or has a license to a copyright in the selection, coordination, arrangement, and enhancement of such content. Affiliate may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Third Party Content, in whole or in part unless expressly provided by LifeWay. b. Each party hereby covenants and agrees the trademarks, trade names, service marks, copyrights and other proprietary rights of the other party are and shall remain the sole and exclusive property of that party and neither party shall hold itself out as having any ownership rights with respect thereto or, except as specifically granted hereunder, any other rights therein. In addition, except as expressly permitted hereunder, each party hereby covenants and agrees that it will make no use of the trademarks, trade names, service marks, copyrights and other proprietary rights of the other party. Any and all goodwill associated with any such rights shall inure directly and exclusively to the benefit of the owner thereof. 12. INDEMNIFICATION. a. LifeWay shall defend, indemnify and hold harmless Affiliate from and against any suit, proceeding, assertion, damage, cost, liability, and expenses (including court costs and reasonable attorneys' fees) incurred as a result of claims by a third party against Affiliate arising from or connected with a claim that the LifeWay Content infringes any intellectual property right under the laws of the United States. b. Affiliate acknowledges that by entering into and performing its obligations under this Agreement, LifeWay does not assume and should not be exposed to the business and operational risks associated with Affiliate's business, or any aspects of the operation or content of Affiliate s web site(s). Accordingly, Affiliate shall defend, indemnify, and hold harmless LifeWay from and against any suit, proceeding, assertion damage, cost, liability, and expenses (including court costs and reasonable attorneys' fees) incurred as a result of claims of customers or other third parties claim against LifeWay and its affiliates, licensors, suppliers, officers, directors, employees and agents arising from or connected with any Affiliate Content or the Affiliate Site (including without limitation any activities or aspects thereof or commerce conducted thereon), Affiliate s misuse of the services provided by LifeWay hereunder or unauthorized modification or use of the services and materials provided by LifeWay hereunder. c. The indemnification obligations set forth in clauses (a) and (b) above are contingent upon the following conditions: (i) the indemnified party must promptly notify the indemnifying party in writing of the claim (however, failure of the indemnified party to so promptly notify the indemnifying party will not relieve the indemnifying party of its indemnification obligations hereunder, except to the extent it has been damaged thereby);(ii) the indemnified party will reasonably cooperate with the indemnifying party in the defense of the matter; and (iii) the indemnifying party will have primary control of the defense of the action and negotiations for its settlement and compromise; provided, however, that: (1) the indemnified party will have the right to approve any settlement or compromise that will impose any obligation upon it or which may materially and adversely affect its rights under this Agreement or its rights to any matter or item subject to copyright, patent, trade secret or trademark protection; and (2) the indemnified party may, at its own cost, obtain separate counsel to represent its interests. d. THE PROVISIONS OF THIS SECTION STATE THE SOLE AND EXCLUSIVE OBLIGATIONS OF EITHER PARTY FOR ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT AND ARE IN LIEU OF ANY WARRANTIES OF NON- INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED. Last printed: 9/22/2004 Page 5

6 13. LIMITATION OF LIABILITY; DISCLAIMERS. a. EXCEPT WITH RESPECT TO LIABILITIES ARISING UNDER SECTION 12 HEREOF, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE OR LOST PROFITS, ARISING FROM ANY PROVISION OF THIS AGREEMENT, EVEN IF SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. b. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, NEITHER PARTY MAKES ANY REPRESENTATION THAT THE OPERATION OF ITS SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND SUCH PARTY WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. 14. NOTICES. All notices, consents, requests, instructions, approvals, and other communications made, required or permitted hereunder (each herein, a "Notice") shall be given in writing and delivered: (i) by personal delivery, (ii) by electronic mail, (iii) by certified or registered mail (return receipt requested), or (iv) by a nationally recognized courier. If the Notice is to you, it shall be addressed to the electronic or postal address you have provided on this Agreement; if the Notice is to LifeWay, it shall be addressed to the electronic or postal address also set forth on this Agreement. The effective date of such Notice shall be deemed to be the date upon which any such Notice is delivered to the addressee. 15. ACCOUNTING. a. LifeWay will compute Affiliate Marketer's earnings on the 15 th day of each month for the prior calendar month. Statements and any earnings due will be sent to Affiliate Marketer within 30 days from the date such earnings are calculated. Statements shall not be required for periods during which no earnings accrue. In computing the number of online studies sold, only online studies for which LifeWay has been paid or credited shall be deemed sold, and LifeWay shall have the right to deduct returns and credits of any nature, including cancellations within 30 days of enrollment. b. All Statements shall be binding upon Affiliate Marketer and not subject to objection unless specific objection in writing, stating the basis of the objection, is given to LifeWay within one year from the date of the statement. Failure to make specific objection within the time period shall be deemed approval of the statement. Affiliate Marketer will not have the right to sue LifeWay in connection with any royalty accounting, or to sue LifeWay for earnings on copies of the Manuscript sold during the period a royalty accounting covers, unless Affiliate Marketer commences the suit within one year after written objection is given to LifeWay. c. Affiliate Marketer may, at Affiliate Marketer's own expense, directly audit LifeWay's books and records relating to this agreement that report the sales of the Manuscript for which earnings are payable hereunder. Affiliate Marketer may make such audit only for the purpose of verifying the accuracy of statements sent to Affiliate Marketer hereunder and only as provided herein. Affiliate Marketer shall have the right to audit said books by notice to LifeWay at least (30) days prior to the date Affiliate Marketer intends to commence the audit. However, no examination may be conducted during the month of October. Said audit shall be conducted by a reputable independent certified public accountant experienced in publishing audits and shall be conducted in such a manner so as not to disrupt LifeWay's other functions and shall be completed promptly. Affiliate Marketer may make such an examination for a particular statement only once and only within the time period in which Affiliate Marketer is allowed to make written objections to the royalty period. Any such audit shall be conducted only during LifeWay's usual business hours and at the place where it keeps the books and records to be examined. Affiliate Marketer's auditor shall review his tentative findings with a member of LifeWay's finance staff designated by LifeWay before rendering a report to Affiliate Marketer so as to remedy any factual errors and clarify any issues that may have resulted from misunderstanding. Last printed: 9/22/2004 Page 6

7 d. All contracts or agreements between Affiliate Marketer and LifeWay are fully cross-collateralized. 16. MISCELLANEOUS. a. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without giving effect to the conflict of law principles thereof. b. Addendum 1, which contains the pricing, payment, and other information is attached and made a part of this Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreement, written and oral, with respect thereto. c. Headings herein are for reference only and shall not affect the meaning of any terms. d. This Agreement does not constitute either party an agent, legal representative, joint venturer, partner or employee of the other for any purpose whatsoever and neither party is in any way authorized to make any contract, agreement, warranty or representation or to create any obligation, express or implied, on behalf of the other party hereto. e. Each provision of this Agreement shall be considered severable and if, for any reason, any provision hereof is determined to be invalid and contrary to, or in conflict with, any existing or future law or regulation by any court or agency having valid jurisdiction, such provision shall be given the maximum permissible effect, and such invalidity or illegality shall not impair the operation or affect the remaining provisions of this Agreement; and the latter shall continue to be given full force and effect and bind the parties hereto and such invalid provisions shall be deemed not to be a part of this Agreement. f. Neither party shall be liable to fulfill its obligations hereunder, or for delays in performance, due to causes beyond its reasonable control, including, but not limited to, acts of God, acts or omissions of civil or military authority, fires, strikes, floods, epidemics, riots or acts of war. Accepted and agreed to: Affiliate Name LifeWay Christian Resources Signature of authorized representative Signature of authorized representative Title: Title: Date: Date: Contract may be: 1) Faxed to ) Or mailed to: Online Studies Affiliate Program LifeWay Christian Resources MSN 123 One LifeWay Plaza Nashville, TN Last printed: 9/22/2004 Page 7