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Terms and Conditions
	To be an authorized affiliate of Records By Mail, you agree to abide by the terms and conditions contained in this agreement. Please read this agreement carefully before registering and using the Records By Mail service as an affiliate. By signing up for the Records By Mail affiliate program, you indicate your acceptance of this agreement and its terms and conditions. Affiliate Terms and Conditions This Agreement ("Agreement"), sets forth the terms and conditions that will apply to participation in the Records By Mail Affiliate Program described herein (the "Program"). By your acceptance of this Agreement, you ("Affiliate") agree to these terms between Affiliate and Records By Mail ("Records By Mail"), to be effective as of the date of your acceptance (the "Effective Date"). 1. Definitions a. As used herein, the term "site" means an Internet site and, depending on the context, refers either to the Records By Mail site located at the URL http://www.recordsbymail.com or any page within such site to which Affiliate will link as authorized under this Agreement, or to any Internet site that Affiliate will link to the Records By Mail site. b. As used herein, the term "Special Links" refers to links to the Records By Mail site placed on Affiliate's site pursuant to this Agreement which properly utilize the special link format provided by Records By Mail pursuant to Section 2(a) below. 2. Links to the Records By Mail Site a. Affiliate may provide on Affiliate's site one or more links to the offer page at the Records By Mail site which will be located at a URL to be identified by Records By Mail in materials to be provided to Affiliate (the "Linked Page"). i. Linking. Affiliate may provide a link on Affiliate's site to any page on the Records By Mail website. Records By Mail will provide Affiliate with guidelines and graphical artwork to use in linking. To permit accurate tracking, reporting, and accrual of Commission (which term includes Initial Referral Fees and Bounties as defined in Appendix A below), Records By Mail will provide Affiliate with special link formats to be used in all links between Affiliate's site and the Records By Mail site. Affiliate will ensure that each of the links between Affiliate's site and the Linked Site will properly utilize the special link format provided. Affiliate will be entitled to Commission with respect to activity on the Records By Mail site occurring directly through Special Links. Records By Mail will not be liable to Affiliate with respect to any failure by Affiliate to use Special Links, including any reduction in compensation or benefits otherwise due to Affiliate pursuant to this Agreement resulting from such failure. b. Order Processing. Records By Mail will process orders placed by customers who use Special Links. Records By Mail reserves the right to reject any orders that do not comply with the requirements of Records By Mail. Records By Mail will prepare order forms, process payments, process cancellations, process returns, handle customer service, and be responsible for all other aspects of order processing and fulfillment in accordance with its usual policies. c. Restrictions. Affiliate may not purchase products or services during sessions initiated through the links on Affiliate's site for resale or commercial use of any kind. In addition, Affiliate may not: (a) directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of any rebate or other money, or granting of any discount or other benefit) for using Special Links on Affiliate's site to access the Records By Mail site (e.g., by implementing any Commission program for persons or entities who use Special Links on Affiliate's site to access the Records By Mail site); (b) read, intercept, record, redirect, interpret or fill in the contents of any electronic form or other material submitted to Records By Mail by any person or entity; (c) in any way modify, redirect, suppress or substitute the operation of any button, link or other interactive feature of Records By Mail site; (d) make any orders, subscription requests or engage in other transactions of any kind on Records By Mail site on behalf of any third party, or authorize, assist or encourage any other person or entity to do so; (e) take any action which could reasonably cause any customer confusion as to Records By Mail's relationship with Affiliate, or as to the site on which any functions or transactions (e.g., search, order, browse, etc.) are occurring; or (f) post or serve any advertisements or promotional content around or in conjunction with the display of the Records By Mail site (e.g., through any "framing" technique or technology or pop-up windows), or assist, authorize or encourage any third party to take any such action. If Records By Mail determines, in its sole discretion, that Affiliate has engaged in any of the foregoing activities, Records By Mail may (without limiting any other rights or remedies available to it) withhold any compensation otherwise payable to Affiliate under this Agreement in addition to Records By Mail'ss right to immediately terminate this Agreement. d. Identification as an Associate. Records By Mail will make available to Affiliate a graphic image that identifies Affiliate's site as a Program participant. Affiliate will display this logo/banner on Affiliate's site at its discretion. Records By Mail may modify the text or graphic image of this logo from time to time at its discretion. Affiliate may not make any press release with respect to this Agreement or its participation in the Program without Records By Mail's prior written consent, which consent may be given or withheld in Records By Mail's sole discretion. Affiliate may not in any manner exaggerate or otherwise misrepresent the relationship between Affiliate and Records By Mail, or express or imply any relationship or affiliation between Records By Mail and Affiliate or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that Records By Mail supports, sponsors, endorses or contributes money to any charity or other cause). e. Limited License. Records By Mail grants to Affiliate a nonexclusive, revocable right to use the graphic image and text described in this Section 2 above and such other images for which Records By Mail grants express written permission, solely for the purpose of identifying Affiliate's site as a Program participant and to assist in generating product sales. Affiliate may not modify the graphic image or text, or any other of Records By Mail's images, in any way. Records By Mail reserves all of its rights in the graphic image and text, any other images, Records By Mail's trade names and trademarks, and all other intellectual property rights. Affiliate agrees to follow Records By Mail's trademark guidelines, as such guidelines may be issued and/or changed by Records By Mail from time to time. 3. Compensation. The compensation to be paid by the parties is set forth on Appendix A. All payments to be made pursuant to his Agreement shall be made in U.S. dollars. 4. Representations and Warranties of Affiliate. Affiliate represents and warrants that: a. If Affiliate is a natural person, Affiliate is at least the age of majority (18 years); b. If Affiliate is a corporation, Affiliate is duly organized and authorized to do business; c. Affiliate will not use information received from Records By Mail to disseminate unsolicited e-mail messages (i.e., "spam"); d. Affiliate will charge no fees in connection with the use of any link to the Records By Mail site, it being understood that Affiliate will not be in breach of this representation and warranty by charging a subscription or usage fee to access Affiliate's site in general; e. Affiliate's site will not: i. promote sexually explicit materials, ii. promote violence, iii. promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, iv. promote illegal activities, v. include "Records By Mail" or variations or misspellings thereof in any of its domain names, vi. otherwise violate any intellectual property rights, or vii.contain any material that is libelous or otherwise violates the rights of third parties; f. Affiliate's site will comply with all applicable laws; g. The contact information provided to Records By Mail by Affiliate is accurate and will be timely updated; h. Affiliate will not artificially inflate traffic to the Records By Mail site; and i. Affiliate will pay all taxes imposed as a result of Affiliate's commercial activities. 5. Indemnification. Affiliate agrees to indemnify and hold Records By Mail harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to (a) the development, operation, maintenance, and content of Affiliate's site and/or (b) breach by Affiliate of any representation or warranty set forth in Section 4 above. 6. Additional Affiliate Responsibilities. Affiliate will be solely responsible for the technical operation of Affiliate's site and all related equipment, and the accuracy and appropriateness of materials posted on Affiliate's site (including, among other things, all materials referring to Records By Mail and/or its products or services). 7. Term and Termination. The term of this Agreement will begin on the Effective Date and will end when terminated by either party. Either of Affiliate or Records By Mail 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, Affiliate will immediately cease use of, and remove from Affiliate's site, all links to the Records By Mail site, and will immediately cease use of all Records By Mail trademarks, trade dress and logos, and all other materials provided by or on behalf of Records By Mail to Affiliate pursuant hereto or in connection with the Program. 8. Representations and Warranties of Records By Mail. Records By Mail represents and warrants that: a. Records By Mail is a corporation duly organized and authorized to do business; b. Records By Mail's site will comply with all applicable laws; and c. The contact information provided to Affiliate by Records By Mail is accurate and will be timely updated. 9. Relationship of Parties. The rights granted to Affiliate hereunder are non-exclusive. Affiliate and Records By Mail are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate will have no authority to make or accept any offers or representations on Records By Mail's behalf. Affiliate will not make any statement, whether on Affiliate's site or otherwise, that could reasonably be interpreted to contradict anything in this Section. 10. Limitation of Liability. Records By Mail 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 Records By Mail has been advised of the possibility of such damages. Records By Mail's aggregate liability arising with respect to this Agreement and the Program will not exceed the total Commission paid or payable to Affiliate pursuant to this Agreement. 11. Disclaimers. Records By Mail make no express or implied warranties or representations with respect to the Program or any products or services sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). Records By Mail makes no representation that the operation of the Records By Mail site will be uninterrupted or error-free, and Records By Mail will not be liable for the consequences of any interruptions or errors. 12. Independent Investigation. AFFILIATE ACKNOWLEDGES THAT HE/IT HAS READ THIS AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. AFFILIATE UNDERSTANDS THAT RECORDS BY MAIL 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'S 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. 13. Mediation. If a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered in Portland, Oregon by the Records By Mail Lawyers. The language of the mediation shall be English. To facilitate such mediation, each party at each party's site shall identify a contact for disputes. 14. Confidentiality a. Affiliate acknowledges and agrees that the terms of this Agreement and all information provided to or in connection with Affiliate's performance under this Agreement shall be considered confidential and proprietary information ("Confidential Information") by Affiliate and shall not be disclosed to any third party without the prior written consent of Records By Mail unless specifically contemplated by this Agreement. Confidential Information shall include, without limitation: (i) marketing materials, strategies and targeting methods; (ii) business objectives, assets and properties; and (iii) programming techniques and technical, developmental, cost and processing information. b. Affiliate shall use Confidential Information only for the purpose of performing the terms of this Agreement and shall not accumulate in any way or make use of Confidential Information for any other purpose. Affiliate shall ensure that only its employees, authorized agents, or subcontractors who need to know Confidential Information to perform this Agreement will receive Confidential Information and that such persons agree to be bound by the provisions of this Section 14 and maintain the existence of this Agreement and the nature of their obligations hereunder strictly confidential. c. The obligations with respect to Confidential Information shall not apply to Confidential Information that: (ii) Affiliate or its personnel already know at the time it is disclosed as shown by their written records; (ii) is publicly known without breach of this Agreement; (iii) Affiliate received from a third party authorized to disclose it without restriction; (iv) Affiliate, its agents or subcontractors, developed independently without use of or references to Confidential Information; or (v) Affiliate is required by law, regulation or valid court or governmental agency order to disclose, in which case Affiliate must give timely notice to Records By Mail allowing it to seek a protective order. d. Affiliate agrees that any unauthorized use or disclosure of Confidential Information may cause immediate and irreparable harm to Records By Mail for which money damages may not constitute an adequate remedy. In that event, Affiliate agrees that injunctive relief may be warranted in addition to any other remedies Records By Mail may have. In addition, the Affiliate agrees promptly to advise Records By Mail in writing of any actual or suspected unauthorized misappropriation, disclosure or use by any person of the Confidential Information which may come to its attention and to take all steps at its own expense reasonably requested by Records By Mail to limit, stop or otherwise remedy such misappropriation, disclosure or use. e. Upon Records By Mail's demand, or upon the termination of this Agreement, Affiliate shall comply with Records By Mail's reasonable instructions regarding the disposition of Confidential Information, which may include return of any and all Confidential Information (including any copies or reproductions thereof). Such compliance shall be certified in writing, including a statement that no copies of Confidential Information have been kept. f. Except as necessary for its performance under this Agreement, Affiliate shall not use Records By Mail's name, or the name of any of its affiliates, subsidiaries or divisions in connection with any representation, solicitation, promotion, sale or marketing publication or advertisement, or make any public statement relating to Records By Mail, its affiliates, subsidiaries or divisions, without the prior full disclosure of same to Records By Mail, and the prior written consent of Records By Mail. g. The obligations of this Section 14 shall survive the termination of this Agreement for a period of two (2) years. 15. Miscellaneous a. Entire Understanding. This Agreement supersedes all prior agreements between the parties hereto with respect to its subject matter and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. b. Amendments. Records By Mail may modify any of the terms and conditions contained in this Agreement, at any time in its sole discretion, so long as such changes are not made in bad faith, by either (i) providing Affiliate with notice of the change by e-mail, or (ii) for changes not relating to commission rates or payment frequency, and any other changes that do not have any material adverse impact on Affiliate's rights or obligations under this Agreement, posting a change notice or a new agreement on the Records By Mail site. Modifications may include, for example but without limitation, changes in the scope of available Commission, Referral Fee Schedules, payment procedures, and Program rules. AFFILIATE AGREES THAT IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, AFFILIATE'S SOLE RECOURSE WILL BE TO TERMINATE THIS AGREEMENT AND THAT AFFILIATE'S CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE RECORDS BY MAIL SITE OR OTHER NOTIFICATION OF A CHANGE WILL CONSTITUTE AFFILIATE'S BINDING ACCEPTANCE OF THE CHANGE. Except as otherwise provided above, this Agreement may not be amended, modified or supplemented except by an instrument in writing executed by Records By Mail. c. Severability. If any provision of this Agreement is held void, invalid or unenforceable by a court of competent jurisdiction, it will be enforced to the maximum extent possible and the legality and enforceability of the other provisions of this Agreement will remain in full force and effect (the "Reformation"), unless the result of such Reformation would be to materially and adversely affect the benefits or rights reasonably expected by either party in entering into this Agreement, in which case this Agreement shall be null and void. d. Non-assignment. This Agreement (i) may be assigned by Records By Mail to any affiliated entity or to any transferee of substantially all of the stock or assets of Records By Mail, and (ii) may be assigned by Records By Mail to any other third party who assumes the obligations of Records By Mail under this Agreement provided either (A) you provide your consent, which consent may not be withheld unreasonably, or (B) Records By Mail guaranties the obligations of the assignee. You may not assign any of your duties or obligations under this Agreement to another party without Records By Mail's written consent, which consent may not be withheld unreasonably. e. Binding upon Successors. Subject to the restrictions stated above, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and permitted assigns. f. Applicable Law. This Agreement will be governed by the laws of the U.S.A. and the State of Oregon, without reference to rules governing choice of laws. g. Choice of Forum. Any action relating to this Agreement must be brought in the federal or state courts located in State of Oregon, and you irrevocably consent to the jurisdiction of such courts. h. Non-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 provision or any other provision of this Agreement. APPENDIX A Compensation Records By Mail will pay Commission Fees on product sales to third parties. For a product sale to be eligible to earn a Commission, the customer must follow a Special Link from Affiliate's site to the Records By Mail site, select and purchase the product and remit full payment to Records By Mail. Records By Mail will not pay Commission on any product purchased after a customer has reentered the Records By Mail site (other than through a Special Link) as determined by Records By Mail, even if the customer previously followed a link from Affiliate's site to the Records By Mail site. 1. Referral Fee Schedule. Affiliate earns Commission based on the acceptance by Records By Mail of any product or subscription purchased as a direct result of affiliate link pursuant to terms of this agreement. a. Fees. The current Referral Fee Schedule, which may be changed by Records By Mail in accordance with the guidelines set forth in this Agreement, is: 10% of total product(s) purchase. b. Approximately ten (10) days following the end of each calendar month, Records By Mail will send Affiliate a check for all Commissions earned during that month, less any taxes that Records By Mail is required by law to withhold. If the Commission payable to Affiliate for any calendar month is less than Fifty Dollars ($50.00), Records By Mail will hold such Commission until the earlier of (a) when the total amount due is at least Fifty Dollars ($50.00) or (b) until this Agreement is terminated. 2. Policies and Pricing. Customers who buy products through this Program will be deemed to be customers of Records By Mail. Accordingly, all Records By Mail rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. Records By Mail may change its policies and operating procedures at any time. Records By Mail will determine the prices to be charged for products sold under this Program in accordance with its own pricing policies. Product prices and availability may vary from time to time. Because price changes may affect products that Affiliate has listed on Affiliate's site, Affiliate may not include price information in its product descriptions. Records By Mail will use commercially reasonable efforts to present accurate information but cannot guarantee the availability or price of any particular product. 3. Eligibility for Fees. Affiliate may earn Commission on sales by Records By Mail occurring during the Term. Commission earned through the date of termination will remain payable only if the related orders are not canceled or returned. Records By Mail may withhold final payment for a reasonable time to ensure that the correct amount is paid. 4. Order Tracking. Records By Mail will be responsible for the tracking of sales made to customers who make purchases using Special Links. Affiliate on-line reports summarizing relevant sales activity will be available on a daily basis. Records By Mail will not be held liable for any disruption to this tracking service, but will endeavor to keep the service accurate, up-to-date and operational.
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