||This Agreement contains the complete terms and conditions
that apply to your participation in the Great Lecture Library Affiliate
Program (the "Program"). As used in this Agreement, "we" means Digitell,
Inc. and "you" means the Affiliate. "Site" means a World Wide Web Site and,
depending on the context, refers either to Digitell's Site located at www.thegreatlecturelibrary.com,
or to the Site that you will link to our Site (and which you will identify
in your Program application).
1) Enrollment and Term of the Agreement: The term of this Agreement will begin upon our acceptance of your Affiliate application 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. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your Site, all links to our Site, and all Digitell trademarks and logos, and all other materials provided by or on behalf of us to you in connection with the Program. You are only eligible to earn referral fees on our sales of Subscriptions occurring during the term, and referral fees earned through the date of termination will remain payable only if the related orders are not cancelled or refunded. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. We may reject your application if we determine, in our sole discretion, that your Site is unsuitable for the Program. If your Site is determined unsuitable at any time, we may terminate this Agreement.
2) Modification: We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on Digitell's Site. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
3) Link on Your Site: We will provide you with guidelines and graphical artwork to use in linking to our home page. To permit accurate tracking, reporting, and referral fee accrual, we will provide you with specific "tagged" link formats to be used in all links between your Site and our Site. You must ensure that each of the links between your Site and our Site properly utilizes such specific link formats. Links to our Site placed on your Site pursuant to this Agreement and which properly utilize such specific link formats are referred to as "Specific Links." You will only earn referral fees with respect to Qualifying Orders (defined below). We will not be liable to you with respect to any failure by you to use Specific Links, including to the extent that such failure may result in any reduction of amounts which would otherwise be paid to you pursuant to this Agreement. We may cancel this agreement at our option, at any time, if you fail to display the specific link in a prominent location on your Site. You may also advertise Digitell's Site, and your Affiliate Code assigned by us, "offline" in classified ads, magazines, newsletters and newspapers, subject to our advance approval of the ad copy and the publication in which the ad will be placed.
4) Order Processing: We will process Subscription orders placed by customers: (a) who follow Specific Links from your Site to our Site; or (b) who arrive at our Site without using another affiliate and who enter your affiliate code on the order form (each a "Qualifying Order"). We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments and cancellations, and handle customer service. We will track Qualifying Orders.
5) Referral Fees: We will pay you a 20% referral fee on eligible Subscription sales to third parties for both the initial sale and all renewal sales. For a Subscription sale to be eligible to earn a referral fee, the customer must place a Qualifying Order and remit full payment to us. Referral fees are paid on Subscription sales excluding taxes, service charges, credit card processing fees, and bad debt.
6) Referral Fee Payment: We will pay you referral fees on a quarterly basis. Approximately 30 days following the end of each calendar quarter, we will send you a check for the referral fees earned on our sales of Digitell Subscriptions during that quarter, less any taxes that we are required by law to withhold. However, if the referral fees payable to you for any calendar quarter are less than $200, we will hold those referral fees until the total amount due is at least $200 or (if earlier) until this Agreement is terminated. If a Subscription that generated a referral fee is cancelled by the customer and refunded by us, we will debit your account in the amount of the referral fee credited to your account. If the corresponding referral fee debited to your account exceeds the amount of accrued referral fees due you, the difference will be billed you or deducted from your next quarterly payment. If there is no subsequent payment, we will send you a bill for the referral fee which you will agree to remit within 30 days of invoice. We reserve the right to pay referral fees more frequently than on a quarterly basis. Prior to receiving any payment, you must provide information required by federal or state tax laws for reporting taxes if such information is requested by us.
7) Policies and Pricing: Customers who buy Subscriptions through this Program will be deemed to be customers of Digitell. Accordingly, all Digitell rules, policies, and operating procedures concerning customer orders, customer service, and Subscription sales will apply to those customers. We may change our policies and operating procedures at any time. We will determine the prices to be charged for Subscriptions sold under this Program in accordance with our own pricing policies. Subscription prices and availability may vary from time to time, and therefore, you may not include Subscription price information in your Site.
8) Limited License: We grant you a nonexclusive, revocable right to use the graphic image provided to you by us for which we grant express permission, solely for the purpose of identifying your Site as a Program participant and to assist in generating Subscription sales. You may not modify the graphic image or text, or any other of our images, in any way, except for resizing. We reserve all of our rights in the graphic image and text, any other images, our trade names and trademarks, and all other intellectual property rights. You agree to follow our Trademark Guidelines, as those guidelines may change from time to time. We may revoke your license at any time by giving you written notice. Affiliate may not use any marketing materials or promotions (electronic or print) except for materials or promotions furnished by Digitell or approved in advance by Digitell.
9) Responsibility for Your Site: You will be solely responsible for the development, operation, and maintenance of your Site and for all materials that appear on your Site. For example, you will be solely responsible for: the technical operation of your Site and all related equipment, ensuring that materials posted on your Site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights) and ensuring that materials posted on your Site are not libelous or otherwise illegal. We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your Site.
10) Relationship of Parties: You and we 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 our behalf. You will not make any statement, whether on your Site or otherwise, that reasonably would contradict anything in this Section.
11) Limitation of Liability: We will not be liable for indirect, special or consequential damages, or any loss of revenue, profits or data, arising in connection with this Agreement or the 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 Program will not exceed the total referral fees paid or payable to you under to this Agreement.
12) Disclaimers: We make no express or implied warranties or representations with respect to the Program or 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.
13) Independent Investigation: 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. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
14) Miscellaneous: This Agreement will be governed by the laws of the United States and the State of New York, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Jamestown, New York and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our 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. 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 provision or any other provision of this Agreement.