SublimX® eAffiliate Operating Agreement
- Parties.
- The parties to this Agreement are Virtual Media Technologies, Inc.
[hereinafter sometime referred to as "We" or "we"] and you [the eAffiliate].
- If you list a company name when you register, then the eAffiliate is considered
to be the company and you are deemed to be the contact person for the
company. In such a case, the referral fee checks will be issued
to the order of the company.
- Becoming an eAffiliate.
- To become an eAffiliate, you must submit a completed eAffiliate
Application via our web site. We will evaluate your application
and will notify you of your acceptance or rejection in a timely
manner. We retain complete discretion to reject an application
at our sole discretion without providing any reason whatsoever.
You should note that we will refuse, or discontinue, a site if it
contains objectionable materials, including pornography, explicit
language or content, or supports violent or hate groups.
- Referral fees are paid only for qualifying sales originating from
approved web sites. You may add or delete web sites associated
with your eAffiliate account at any time. Deletion of a web site
from your eAffiliate Account will take effect immediately upon your
request. Addition of a web site to your eAffiliate Account will
require our approval. We will send you an email as soon as the
proposed web site is approved by us.
- We retain complete discretion to reject or discontinue a web site or to terminate
an eAffiliate account at any time at our sole discretion and without
providing any reason whatsoever. All commissions earned, pursuant
to this Agreement, prior to such termination, will be paid pursuant to
the terms of this Agreement.
- Our Rights and Responsibilities.
- We will make available to you the materials for a variety of graphic
and textual links [hereinafter referred to as "Link" or "Links"] that
you may display as often and in as many areas on your sites as you desire
(subject to the terms of this Agreement). The Links will serve to
identify your site as a member of our eAffiliate Program and will establish
a link from your web site to SublimX.com. The Links may connect to any
non-private area at our site. The Links may NOT link to any page
in our B2B and DownloadCenter areas, i.e. the links may not start with the
following directories: (i) www.SublimX.com/B2B or (ii) www.SublimX.com/DownloadCenter
- We will be solely responsible for processing every order placed by a
customer following a Link from your site and for tracking the volume
and amount of sales generated by your site. We will be responsible for
order entry, payment processing, shipping, cancellations, returns, and
related customer service.
- We have the right in our sole discretion to monitor your site at any
time and from time to time, to determine if you are in compliance with
the terms of this Agreement.
- You will be given a password and have the ability to
enter a password-protected area of our site to receive your sales statistics as you
wish.
- Your Rights and Responsibility.
- You agree to display Links prominently throughout your site as you see fit.
- You agree that in utilizing the Links, you will fully cooperate with us to establish
and maintain the Links current. You will display in your site only those
graphic or textual materials indicating a Link that we provide, and you
will update such images and textual materials with the new materials provided
by us from time to time throughout the term of this Agreement. The Links
connecting users of your site to our site shall in no way alter the look, feel,
or functionality of our site.
- You shall not create, publish, distribute, or permit any written
material that makes reference to us without first submitting such material
to us and receiving our written consent.
- You will be solely responsible for the development, operation, and
maintenance of your site and for all materials that appear on your site.
Such responsibilities include, but are not limited to, the technical
operation of your site and all related equipment; creating and posting
product reviews, descriptions, and references on your site and linking
those descriptions to our catalogue; the accuracy and propriety of
materials posted on your site (including, but not limited to, all SublimX
product-related materials); ensuring that materials posted on your site do
not violate or infringe upon the rights of any third party and are not
libelous or otherwise illegal. We disclaim all liability for all such
matters. Further, you will indemnify and hold us harmless from all
claims, damages, and expenses (including, without limitation, attorney's
fees) relating to the development, operation, maintenance, and contents
of your site.
- You agree that your site will not, in any way, copy or resemble the
look and feel of our site nor will you create the impression that your site
is our site or is a part of our site, NOR WILL YOU FRAME any page on the
SublimX.com site being viewed by a user of your site who links to the
SublimX.com site through a Link.
- You agree that your site will not contain any content of our
site or any materials which are proprietary to Virtual Media Technologies,
Inc. except (i) with our prior written permission, or (ii) materials which
are obtained by you from the Resource page of our eAffiliate Support Center
in accordance with policies therein and the terms of this Agreement.
- You agree that (i) your domain name does not and will not contain
the words "Virtual Media", "Subliminal" and "SublimX" or any variation thereof,
(ii) your domain name does not resemble any of the trademarks of Virtual Media
Technologies, and (ii) that you will not purchase or otherwise contract with a
third party to exploit any of the trademarks of Virtual Media Technologies, Inc.,
for the purpose of causing any of your web site to appear as a search result or
for any other reason.
- You remain responsible to promptly advise us of any changes in your address,
phone numbers, and email address. You agree to promptly provide us with your Tax ID,
if you are a United States taxpayer and if the total commissions paid to you
during a calendar year equals or exceeds $600.00. Further, you agree that you
must use the forms provided in the eAffiliate Support Center of our web site to submit
the foregoing information to us.
- You agree to promptly change the initial password issued to you by visiting the
eAffiliate Support Center of our web site and using the forms provided there and to
employ utmost care to protect your password.
- You agree to provide us the root name of your web site according to the guidelines
established at our web site and to check the list of domain names associated with
your account to ensure that they are properly listed under your account.
- If you change your name or your company name, you must cancel your account and
start a new account.
- Term of the Agreement
The term of this Agreement will begin upon the acceptance of any of your web sites
in the eAffiliate Program 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.
You are only eligible to earn referral fees on sales occurring during the
term and for sales resulting by referrals from approved web sites. Referral
fees earned through the date of termination will remain payable only if the related
SublimX product orders are not cancelled or returned and only if we receive payment
for such orders. We may withhold your final payment for a reasonable time to
ensure that the correct amount is paid.
- Referral Fee
- You will be paid fifteen percent (15%) of the total purchase by a referred
customer less any discounts, shipping costs, or sales taxes collected.
The discounts may include, among others and without limitations, coupons,
gift certificates, and claim checks. You will not receive a commission
if, for any reason, we do not collect the sale price from the customer.
These reasons may include, among others and without limitations, returns and
credit card farud. You start earning commission with the first dollar
of sale.
- Only products manufactured by Virtual Media Technologies, Inc. that are (i) sold
by us, (ii) at SublimX.com, (iii) purchased by customers linking to our web
site (at www.SublimX.com) directly from your web site with an authorized
eAffiliate Link and make a purchase during the session which started when
they arrived at our site, and (iv) for which we have received full payment
qualify for a referral fee. We do not require to place a cookie on the
customer's computer or read such a cookie. However, we do require
the ability to use the session cookie to complete the sale or
trcak your credit.
- An eAffiliate Link is authorized when (i) the link contains the eAffID which
was issued to you, (ii) the link originates from a web site which you have designated as
one of your web sites and we have approved as a web site eligible
to carry an eAffiliate Link to our web site, and (ii) the link points to
www.SublimX.com/Default.aspx, a public page in www.SublimX.com/Pages folder (directory),
OR www.SublimX.com/Purchase/Purchase.aspx.
- Sales made prior to the approval of a web site or after the cancellation of
an affiliate account or a web site do not qualify for referral fees.
- Referral fee is paid only for consumer sales. Business-to-business sales
and sales to such entities as retailers, etailers, resellers, distributors,
and like entities do NOT qualify for the referral fee. Further, sales to
the B2B (Business-to-Buiseness) and administrative users of the web site
(i.e. eAffiliate, Retailers, Sales Representatives, and our staff who have
a B2B or administrative account on our web site) do not qualify for referral
fees.
- Payments will be made on a quarterly basis, as long as you have accumulated
fifty dollars ($50.00) or more in commission. Payments will be made by
the end of the month following each quarter. If your commission for any
quarter is less than $50.00, the total amount will be carried to the next
quarter. Payments for December, January, and February will be made by
the end of March. Payments for March, April, and May will be made by
the end of June. Payments for June, July, and August will be made by
the end of September. Payments for Septemeber, October, and November
will be made by the end of December. If your eAffiliate membership
is terminated for any reason, either by you or by us, you will receive your
final check on the schedule noted above. The final check will be issued
even if it is for less than $50.00. However, we reserve the right to pay
off your account, regardless of the amount, at any time before the deadlines
established above.
- Payment shall be deemed made when we deposit with the United States Mail,
postage prepaid, an envelope containing the payment and addressed to you at
the address you have provided us by using the forms provided in the
eAffiliate Support Center of our web site.
- If a sale for which you have been paid later becomes uncollectible, the
corresponding commission payment will be deducted from your next commission
payment. If the account is closed or if you do not earn sufficinet
commission in the following quarter, a bill will be sent to you.
- Policies and Prices.
All customers visiting our web site shall be deemed to be customers of Virtual
Media Technologies, Inc., regardless of how they may arrive at or be referred
to our web site. Accordingly, all of our rules, policies, and operating
procedures concerning sales, use of our web site, customer orders, and customer
service will apply to those customers. We may change our policies and
operating procedures at any time. For example, we will decide the prices
to be charged for the products products sold under the eAffiliate Program in
accordance with our own pricing policies at our sole discretion. Prices and
availability of products may vary from time to time. Because price changes
may affect products that you already have listed on your site, you
may not include price information in your product descriptions. We will
use commercially reasonable efforts to present accurate information, but
we cannot guarantee the availability or price of any particular product.
- Licenses and Use of Logos and Trademarks.
- We grant you a NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE right to
(i) access our web site through the Links solely in accordance with the
terms of this Agreement and (ii) solely in connection with creating and
maintianing such Links to use trademarks of Subliminal Technologies, a
division of Virtual Media Technologies, Inc., and similar identifying
materials relating to us that appear on the Resource page of our eAffiliate
Program's Support Center [hereinafter collectively referred to as Licensed
Materials] for the sole purpose of linking your site to our site, where your
users can purchase SublimX products. You may NOT alter or modify the
Licensed Materials in any way. You are only entitled to use the Licensed
materials to the extent that you are a member in good standing of the eAffiliate
Program.
- You shall not make any specific use of any Licensed Materials for
purposes other than selling SublimX products on your site for Virtual Media
Technologies, Inc., without first submitting a sample of such to us and
obtaining the prior written consent of Virtual Media Technologies, Inc.
You agree not to use the Licensed Materials in any manner that is disparaging
or that otherwise portrays us or our products in a negative light. We reserve
all of our rights in the Licensed Materials and of our other proprietary rights.
We may revoke your license at any time and without giving any reason whatsoever,
by sending you an email at the email address you have provided us.
- You grant to us a non-exclusive license to utilize your names, titles, and logos,
as amended from time to time [hereinafter collectively referred to as eAffiliate Marks],
to advertise, market, promote, and publicize in any
manner. You agree, however, that we shall not be required to so advertise, market,
promote, or publicize. This license shall terminate upon the effective
date of the expiration or termination of this Agreement.
- Relationship of Parties. You and Virtual Media Technologies, Inc.
are independent contractors, and nothing in this
Agreement will create any partnership, joint venture, agency, franchise,
sales representative, or employment relationship between the parties. You
will have no authority to make or accept any offers or representations on
behalf of Virtual Media Technologies, Inc. You will not make any statement,
whether on your site or otherwise, that reasonably would contradict anything in this
section.
- Representations and Warranties.
- This Agreement has been duly and validly executed and delivered by
you and constitutes your legal, valid, and binding obligation, enforceable
against you in accordance with its terms.
- 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 (i) any provision of law, rule, or regulation to
which you are subject, (ii) any order, judgment, or decree applicable to
you or binding upon your assets or properties, (iii) any provision of your
by-laws or certificate of incorporation, or (iv) any agreement or other
instrument applicable to you or binding upon your assets or properties.
- You are the sole and exclusive owner of the eAffiliate Marks and
have the right and power to grant to us the license to use your trademarks
in the manner contemplated herein, and such grant does not and will not
(i) breach, conflict with, or constitute a default under any agreement or
other instrument applicable to you or binding upon your assets or
properties, or (ii) infringe upon any trademark, trade name, service mark,
copyright, or other proprietary right of any other person or entity.
- 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.
- There is no pending or, to the best of your knowledge, threatened
claim, action, or proceeding against you, or any affiliate of yours, with
respect to the execution, delivery, or consummation of this Agreement, or
with respect to your trademarks, and, to the best of your knowledge, there
is no basis for any such claim, action, or proceeding.
- You are an adult of at least 18 years of age and have the legal and mental
capacity to enter into this Agreement.
- Indemnification. You hereby agree to indemnify and hold harmless Virtual Media Technologies,
Inc., its subsidiaries, divisions, affiliates, and suppliers, and their directors,
officers, employees, agents, shareholders, partners, members, and other owners, against
any and all claims, actions, demands, liabilities, losses,
damages, judgments, settlements, costs, and expenses (including reasonable
attorneys' fees) (any or all of the foregoing hereinafter referred to as
"Losses") insofar as such Losses (or actions in respect thereof) arise out of or
are based on (i) any claim that our use of your trademarks infringes on any
trademark, trade name, service mark, copyright, license, intellectual
property, or other proprietary right of any third party, (ii) any
misrepresentation of a representation or warranty or breach of a covenant
and agreement made by you herein, or (iii) any claim related to your site,
including, without limitation, content therein not attributable to
us.
- Disclaimers. WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS, AND
EXPRESSLY DISCLAIM ALL WARRANTIES, WITH RESPECT TO THE
EAFFILIATE PROGRAM OR ANY PRODUCTS OF VIRTUAL MEDIA TECHNOLOGIES, INC. SOLD THROUGH THE
EAFFILIATE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS,
MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT
OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, WE MAKE
NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR
ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY
INTERRUPTIONS OR ERRORS.
- Limitation of Liability. WE WILL NOT BE LIABLE FOR INDIRECT OR
CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN
CONNECTION WITH THIS
AGREEMENT OR THE EAFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH
RESPECT TO THIS AGREEMENT AND THE EAFFILIATE PROGRAM WILL NOT EXCEED THE
TOTAL REFERRAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
- Independent Investigation and Decision. YOU ACKNOWLEDGE THAT YOU
HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU
UNDERSTAND THAT WE 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 YOUR WEB SITE. YOU
HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE
SUBLIMX.COM EPARTNER PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION,
GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
- Confidentiality. Except as otherwise provided in this Agreement or with
the consent of the other party hereto, each of the parties hereto agrees that all
information including, without limitation, the terms of this Agreement,
business and financial information, customer and vendor lists, and pricing
and sales information, concerning us or you, respectively, or any of our
affiliates provided by or on behalf of any of them shall remain strictly
confidential and secret and shall not be utilized, directly or indirectly,
by such party for its own business purposes or for any other purpose
except and solely to the extent that any such information is generally
known or available to the public through a source or sources other than
such party hereto or its affiliates. Notwithstanding the foregoing, each
party is hereby authorized to deliver a copy of any such information (i)
to any person pursuant to a subpoena issued by any court or administrative
agency, (ii) to its accountants, attorneys, or other agents on a
confidential basis, and (iii) otherwise as required by applicable law, rule,
regulation, or legal process including, without limitation, the Securities
Act of 1933 and the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
- Assignability. You may not assign this Agreement by operation of law
or otherwise, without our prior written consent. Subject to the foregoing
restriction, this Agreement will be binding on, inure to the benefit of, and
enforceable against the parties and their respective successors and assigns.
- Modification. We may modify any of the terms and conditions contained
in this Agreement at any time in our sole discretion. You will be notified by
email and a change notice will
be posted on our site. Modifications may include, but are not limited to,
changes in the scope of available referral fees, referral fee schedules,
payment procedures, and other policies and procedures. If any
modification is unacceptable to you, your only recourse is to terminate this
Agreement. Your continued participation in the eAffiliate Program
following our posting of a change notice or new Agreement on our site will
constitute binding acceptance of the change.
- Waivers. Any waiver of the provisions of this Agreement shall be in
writing and signed by the party allowing such waiver. Our failure to enforce
your strict performance of any provision of this Agreement will not constitute
a waiver of our right to subsequently enforce such a provision or any other provision
of this Agreement.
- Consents. Any consent, approval, permission, or like measures envisioned
in or by this Agreement shall be in writing and signed by the applicable party.
- Entirety of Agreement. This Agreement is the entire agreement between us,
superseding any other agreement or discussions, oral or written, and may not
be changed except by a written agreement signed by a duly authorized officer
of Virtual Media Technologies, Inc.
- Governing Law. This Agreement shall be governed and construed in
accordance with the laws of United States of America and the State of Indiana,
United States of America, excluding the application of their conflicts of law
rules. This Agreement will not be governed by the United Nations Convention
on Contracts for the International Sale of Goods, the application of which
is expressly excluded.
- Dispute Resolution. Any claim in connection with, arising under, or
in any way whatsoever relating to (i) this Agreement, (ii) the relationship
created by this Agreement, and (iii) the applicability and scope of this Agreement
shall be brought and maintained in a court sitting in the City of
Indianapolis, County of Marion, State of Indiana, United States of America,
and you irrevocably consent to the jurisdiction of such courts.
- Severability. If any provision of this Agreement is declared
by a court of competent jurisdiction to be invalid, illegal, or unenforceable,
such a provision shall be severed from the Agreement and the other provisions
shall remain in full force and effect.
- Language. The parties have requested that this Agreement
and all documents contemplated hereby be drawn up in English.
- Construction. This Agreement shall be construed reasonably and
not against any particular party. The titles given to the paragraphs and
subparagraphs of this Agreement are for the convenience of the parties.
This Agreement shall be construed without regard to such titles.
Last Updated: October 5, 2005
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