AFFILIATE AGREEMENT
Agreement made this 27th day of October, 1999, by and between
XxxxXxxx.Xxx, a Nevada corporation, 000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx
Xxxx, Xxx Xxxx 00000 and iChargeit Inc., a Texas corporation, 000 Xxxxxxx
Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000.
WHEREAS, iChargeit, hereinafter known as iChargeit, operates an internet
web site at xxx.xxxxxxxxx.xxx (the "Website"); and
WHEREAS, XxxxXxxx.xxx operates an internet web site at xxx.Xxxxxxxx.xxx
and provides search services to visitors of its site; and
WHEREAS, iChargeit desires to affiliate with XxxxXxxx.xxx and allow
visitors of its web site to link to the search results displayed by
XxxxXxxx.xxx;
NOW, THEREFORE, in consideration of and in reliance upon the covenants,
conditions, representations and warranties contained herein, the parties
hereto agree as follows:
1. XxxxXxxx.xxx shall allow iChargeit to link to its web site search
results for display of XxxxXxxx.xxx search results in response to searches
entered by iChargeit Website visitors. The search results will be displayed
on the xXxxxxxxx.xxx Website. iChargeit will receive an initial payment of
three cents per search request for all requests submitted to XxxxXxxx.xxx
from the xxxxxxxxx.xxx website. This 3 cents per search commission iChargeit
receives will be replaced by 15% of all click through commissions
XxxxXxxx.xxx receives through searches generated by the xxxxxxxxx.xxx website
paid to iChargeit. This 15% commission structure will take effect whenever
and if XxxxXxxx.xxx chooses to deploy this functionality.
2. iChargeit may not alter the display of XxxxXxxx.xxx search results
in any manner. The look and feel of the search results will be co-branded
xxxxxxxxx.xxx and XxxxXxxx.xxx. iChargeit will be able to display their own
banners and navigation links at the top of each page of search results.
iChargeit will have it's own look and feel branding at the top of each page
of search results. XxxxXxxx.xxx will have the right to approve the look and
feel co-branding created and displayed by iChargeit.
3. iChargeit shall not save or cache any search results provided by
XxxxXxxx.xxx but shall merely display to its Website visitors the search
results provided by the link to XxxxXxxx.xxx.
4. Wherever iChargeit offers to provide search results on its Website
it will display next to the search query box the XxxxXxxx.xxx logo, in the
form to be supplied by XxxxXxxx.xxx, and state that the search results are
provided or "powered" by XxxxXxxx.xxx. The XxxxXxxx.xxx logo shall also be
visible on the search result pages.
5. iChargeit represents and warrants that its Website does not and
shall not: (a) promote sexually obscene materials; (b) promote violence; (c)
promote discrimination based on race, sex, religion, nationality, disability,
sexual orientation, or age; (d) engage in hate activity whether racial or
otherwise; (e) promote or engage in illegal activities; or (f) violate the
rights of third parties, including intellectual property rights.
6. iChargeit represents and warrants that it has the right to publish
the contents of its Website and that the contents, material and activities of
its Website do not violate any national, international or local laws or any
rights of third parties, including, but not limited to, infringement or
misappropriation of any copyright, patent, trademark, trade secret, music,
image or other proprietary right, false advertising, unfair competition,
defamation, invasion of privacy or rights of celebrity, or any other right of
any person or entity.
7. iChargeit agrees to indemnify and hold XxxxXxxx.xxx harmless from
and against any losses, costs, damages or expense (including reasonable
attorneys' fees) resulting from claims or actions arising out of or in
connection with its Website content or iChargeit's breach of any agreement,
representation or warranty hereunder, including, without limitation, claims
for infringement of copyright or other intellectual property rights and
violation of rights of privacy and publicity.
8. XXXXXXXX.XXX MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESSED OR
IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE
SERVICE FOR A PARTICULAR PURPOSE. XXXXXXXX.XXX SHALL NOT BE LIABLE FOR ANY
LOSS, COSTS, DAMAGE OR EXPENSE (INCLUDING REASONABLE ATTORNEY'S FEES)
INCURRED BY iCHARGEIT INCLUDING, WITHOUT LIMITATION, FOR ANY TECHNICAL
MALFUNCTION, COMPUTER ERROR OR LOSS OF DATA OR OTHER INJURY DAMAGE OR
DISRUPTION TO iCHARGEIT. ICHARGEIT'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH
UNDER THIS AGREEMENT SHALL BE THE TERMINATION OF THIS AGREEMENT. IN NO EVENT
SHALL XXXXXXXX.XXX BE LIABLE FOR ANY COMPENSATORY, INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS
AGREEMENT EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT
XXXXXXXX.XXX HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. XXXXXXXX.XXX WILL
NOT BE LIABLE FOR, OR CONSIDERED TO BE IN BREACH OF OR IN DEFAULT, ON ACCOUNT
OF ANY DELAY OR FAILURE TO PERFORM AS ANTICIPATED BY THE PARTIES OR IF IT IS
NOT ABLE TO SUPPLY SEARCH RESULTS OR BECOMES INCAPABLE OF PERFORMING AS
INTENDED. XXXXXXXX.XXX MAKES NO REPRESENTATIONS THAT ITS SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE, AND WILL NOT BE LIABLE FOR THE CONSEQUENCES OF
ANY INTERRUPTIONS OR ERRORS. XXXXXXXX.XXX DOES NOT WARRANT THAT THE GENERAL
LINKS OR SEARCH BOX LINKS PROVIDED WILL PERFORM AS INTENDED OR MEET ALL OF
iCHARGEIT'S REQUIREMENTS. iCHARGEIT IS SOLELY RESPONSIBLE FOR THE
DEVELOPMENT, OPERATION AND MAINTENANCE OF ITS SITE AND FOR ALL MATERIALS THAT
APPEAR ON ITS SITE AND XXXXXXXX.XXX DISCLAIMS ALL LIABILITY FOR THESE MATTERS.
9. XxxxXxxx.xxx grants to iChargeit a limited, non-exclusive,
non-assignable license during the term of this Agreement to use the graphic
images and text contained in the links and search boxes supplied to
iChargeit. iChargeit acknowledges and agrees that XxxxXxxx.xxx's logos,
tradenames, trademarks and servicemarks are and shall remain the sole
property of XxxxXxxx.xxx and nothing in this Agreement shall confer to
iChargeit any right of ownership in such intellectual property, and that it
does not now and shall not in the future contest the validity of
XxxxXxxx.xxx's trademarks and servicemarks. iChargeit agrees to comply with
all requirements and guidelines provided to it by XxxxXxxx.xxx in connection
with its use of any links and search boxes provided to it under this
Agreement and shall not alter in any manner such search boxes or links or use
them in
2
any manner which may in any way negatively reflect upon XxxxXxxx.xxx or
dilute, diminish or otherwise damage XxxxXxxx.xxx's rights and goodwill in
any of its intellectual property. iChargeit agrees not to use such links or
search boxes in a manner which may imply sponsorship or endorsement by
XxxxXxxx.xxx of its site, services or products, or the sites, services and
products of others.
10. This agreement shall be governed by and construed in accordance
with the substantive laws of the State of New York and jurisdiction and venue
of all matters relating to this agreement shall be vested exclusively in the
Southern District of New York or New York Supreme Court, County of New York,
and the parties agree to the jurisdiction of such Courts. No waiver,
modification or addition to this agreement shall be valid. This agreement
constitutes the entire agreement between the parties relating to the subject
matter of this agreement. This agreement supersedes all prior and
contemporaneous agreements and the parties have not relied upon any
representations, oral or otherwise, not contained within this agreement.
11. This Agreement may be terminated by either party with or without
cause, by giving the other party written notice of termination.
12. This Agreement may not be assigned by either party. iChargeit shall
not provide, distribute, resell or transfer XxxxXxxx.xxx's search results or
the ability to obtain search results provided by its link to XxxxXxxx.xxx
hereunder to any third party.
XXXXXXXX.XXX CORPORATION
By: /s/ Xxxxx X. Xxxxxxx-Xxxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx-Xxxxxxxxx
President/CTO
iCHARGEIT
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: CEO and President
3
