Affiliate Operating Agreement
This Affiliate Operating Agreement ("Agreement") contains the complete terms and conditions that govern an individual's or entity's participation in the GPS City affiliate program (the "Program"). As used in this Agreement, "Company", "we", and "our" means Imagine GPS, Inc. dba GPS City, and "Affiliate", "you", and "your" means the applicant. "Company Site" means the gpscity.com web site and "Affiliate Site" means any site that you will link to the Company Site.
1. Acceptance of Application.
Affiliate will submit a complete Program application via the Company Site to indicate its interest in becoming a Company affiliate. Company will evaluate Affiliate application in good faith and will notify Affiliate of its acceptance or rejection. Company may reject Affiliate application if Company determines (in its sole discretion) that Affiliate site is unsuitable for the Program.
2. Promotional Materials and Affiliate Website Links.
Company shall make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate website (the "Promotional Materials"). Affiliate shall display the Promotional Materials on Affiliate's website prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Materials to Company's website, as specified by Company.
3. Use of Promotional Materials.
The Affiliate's use and display of the Promotional Materials on the Affiliate's site shall conform to the following terms, conditions and specifications:
a. Affiliate may not use any graphic, textual or other materials to promote Company's website, products or services other than the Promotional Materials, unless Company agrees to such other materials in writing prior to their display.
b. Affiliate may only use the Promotional Materials for the purpose of promoting Company's website (and the products and services available thereon), and for linking to Company's website.
c. The Promotional Materials will be used to link only to Company's website, to the specific page and address as specified by Company.
d. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from Company for such alteration of modification.
4. License.
Company hereby grants to Affiliate a nonexclusive, nontransferable, revocable license (the "License") to use the Promotional Materials as specified under the terms and conditions of this Agreement. The term of the License shall expire upon the expiration or termination of this Agreement.
5. Intellectual Property.
Company retains all right, ownership, and interest in the Promotional Materials, and in any copyright, trademark, or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License, as set forth in Section 3.
6. Relationship of Parties.
This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between Company and Affiliate. Affiliate shall provide services for Company as an independent contractor. Affiliate shall have no authority to bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company in any respect.
7. Commissions.
a. In exchange for Affiliate's display of the Promotional Materials, and for Affiliate's compliance with and performance of the terms and conditions of this Agreement, Company shall pay to Affiliate a commission (the "Commission") a percentage of the completed sale based on the product category of each unit sold, less any returns, as follows:
- GPS Units, 2% of sale price
- GPS Accessories, 3% of sale price
- GPS Mapping Data, 3% of sale price
- RAM Mounts, 5% of sale price
- Geocaching Items, 3% of sale price
b. The Company's website uses cookies to allocate orders placed by incoming affiliate shoppers from the Affiliate's website. Any orders placed by the affiliate shopper's visit over a 24 hour period (beginning from the first visit to the Company's website) will accrue to the Affiliate account, whether they originated from the Affiliate website or not.
c. Company retains the sole right in determining the product category and commission structure for all items.
d. Company shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate. Affiliate shall be given reasonable access to these records upon request. Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods shall be rectified by Company within 14 days of discovering such discrepancy.
e. Company shall pay all Commissions accrued and payable to Affiliate within 60 days following the end of each calendar month (the "Commission Payment Date"). If on any Commission Payment Date, the amount of total Commissions accrued and payable to Affiliate is less than $50, then such accrued and payable balance shall be held over to the following month, and paid together with the Commissions due for that month. If at any time, the balance of accrued and payable Commissions is held over for 2 consecutive months, then Company shall pay all accrued and payable Commissions to Affiliate in the third month, regardless of the total amount owed.
f. In the event that Affiliate materially breaches this Agreement and Company terminates this Agreement within 30 days of such breach, then any accrued and payable Commissions owing to Affiliate shall be forfeited, and Company shall not be obligated to pay such Commissions to Affiliate.
8. Affiliate's Representations and Warranties. Affiliate represents and warrants the following:
a. Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.
b. Affiliate's website does not contain any materials that are:
i. Sexually explicit, obscene, or pornographic;
ii. Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
iii. Graphically violent, including any violent video game images; or
iv. Solicitous of any unlawful behavior
c. Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate's website. Nothing on Affiliate's website infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.
d. Affiliate will not use the Promotional Materials in any manner other than those set forth in Section 2 above.
e. Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
f. Affiliate will not publish or otherwise distribute any advertising materials for Affiliate's website that reference Company or Company's website unless Company gives prior written consent to the distribution of such materials. Affiliate will not use Company's name (or any name that is confusingly similar to Company's name) for any purpose on its website, in its promotional materials, or in any other context except to promote Company's website as specified in this Agreement. Affiliate will not register any domain name that incorporates Company's name, or that is confusingly similar to Company's name.
g. Affiliate will not engage in the distribution of any unsolicited bulk emails (spam) in any way mentioning or referencing Company or Company's website.
h. AFFILIATE ACKNOWLEDGES THAT AFFILIATE HAS READ THIS AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. AFFILIATE UNDERSTANDS THAT COMPANY MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH AFFILIATE 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.
9. Indemnification.
Affiliate shall indemnify Company and hold harmless Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate's warranties set forth in Section 7 above. Affiliate shall also indemnify and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.
10. Confidentiality.
Any information that Affiliate is exposed to by virtue of its relationship with Company under this Agreement, which information is not available to the general public, shall be considered to be "Confidential Company Information." Affiliate may not disclose any Confidential Company Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from Company.
11. Term.
a. The term of this Agreement shall begin upon our acceptance of the Affiliate application and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section 10.
b. Either Party shall have the right to terminate this Agreement at any time, with or without cause, buy giving the other Party written notice of termination.
c. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to the Company Website, and all of the Company's trademarks, trade dress, and logos, and all other materials provided by or on behalf of Company to Affiliate in connection with the Program.
12. Taxes.
Company shall not be responsible for any taxes owed by Affiliate arising out of Affiliate's relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Affiliate.
13. Limitation of Liability.
Company shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement. In addition, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total commission fees paid or payable to Affiliate under this Agreement.
14. Modification.
Company may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement on the Company Site. Modifications may include, for example, changes in the commission structure, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, ITS ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. AFFILIATE'S CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE COMPANY SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
15. Disclaimers.
Company makes no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, it makes no representation that the operation of the Company Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
16. Miscellaneous.
This Agreement will be governed by the laws of the United States and the state of Nevada, without reference to rules governing choice of laws. Affiliate may not assign this Agreement, by operation of law or otherwise, without Company prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Company failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
17. Severability.
If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
18. Headings.
The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
19. Entire Agreement.
This Agreement constitutes the entire agreement between Company and Affiliate, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. |
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