VinoClassics Affiliate Program Agreement
This VinoClassics Affiliate Program Agreement, dated this _________ day of ____________________, 2008, is between) VinoClassics, with offices at 15 Pamaron Way Suite D, Novato, CA 94949 and _______________________ (“Merchant”) located at _________________________ ________________________________. As used in this Agreement, the terms “we”, “us” and “our” refer to VinoClassics and the terms “you” or “your” refers to Merchant. This Agreement explains our obligations to you, and your obligations to us, in relation to the VinoClassics Affiliate Program (“Program”). By completing and submitting your Merchant Application or otherwise participating in our Program, you agree to be bound by the terms and conditions of this Agreement.
1. Merchant Program Overview
VinoClassics will provide an online service that includes a virtual shop for Participating Merchants. VinoClassics helps online shoppers locate local merchants for the purchase of products and services. Services include general wine purchases, and wedding and gift registries.
1.1 Fees and Payments
Merchants will be charged a one time sign-up fee, monthly membership fee, and 5% commission on any wines purchases through VinoClassics.
2. Merchant Obligations
You agree to observe the rules and guidelines of the Program as provided to you from time to time. In
addition to other obligations set forth herein, you further agree to the following.
2.1 Accurate Information
You represent that all information you provide to us, including but not limited to, the Affiliate
Application, and all other information about your business you provide in connection with the Program, will be accurate, complete and current, to the best of your knowledge.
2.2 Website Compliance
You represent and warrant that the content placed in the VinoClassics virtual shop:
(i) do not violate any law or regulation;
(ii) do not infringe in any manner any copyright, patent, trademark, trade secret or other intellectual property right of any third party;
(iii) do not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; and
(iv) are not false, misleading, defamatory, libelous, slanderous or threatening.
3. Proprietary Rights and Licenses
You acknowledge our exclusive right, title, and interest in and to our trademarks, service marks, and content on our website(s) and we acknowledge your exclusive right, title, and interest in and to your trademarks, service marks, and content on your Website(s) You
acknowledge and agree that you shall not have or obtain any rights in any of the VinoClassics Marks, and we shall not have or obtain any rights in any of the Merchant Marks, except as otherwise provided in writing.
Each party acknowledges and agrees that its use of the other's marks will not create in such party any right, title or interest in such marks and that all such use of the marks of the other party and the goodwill generated thereby will be to the benefit of the other party. Subject to the terms and conditions hereof, each party hereby grants to the other for the term of this Agreement a nonexclusive, nontransferable,
royalty-free license to use the VinoClassics Marks and Merchant Marks solely in connection with the Affiliate Program and for associated publicity and related purposes.
4. Confidentiality
VinoClassics and Merchant may make available to each other various confidential data, materials and
information relating to their respective businesses (collectively, the “Confidential Information”). This section shall apply to all Confidential Information disclosed to the other party, regardless of how the information is made available, except that the definition of Confidential Information shall not apply to
(i) any information which the recipient can establish was already in the public domain at the time of the disclosure;
(ii) is subsequently learned from an independent third party free of any restriction and without breach of this Agreement;
(iii) is or becomes publicly available through no wrongful act of either party; or
(iv) is independently developed by one party without reference to any Confidential Information of the other. Each party may make use of such Confidential Information for its own internal purposes, subject to the limitations of this section. Both parties hereby agree that they will maintain the confidentiality of the other party’s Confidential Information and will not disclose the Confidential Information to any third party, except as may be required by law, and then only after having given the other party prior notice and a reasonable opportunity to obtain a protective order.
5. Limitation of Liability
ANY LIABILITY OF A PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF ALL FEES PAID AND PAYABLE BY YOU TO VINOCLASSICS, FOR THE TWELVE MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, OR ANY THIRD PARTY, FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
6. Limited Warranty
THE SERVICES OFFERED IN THE PROGRAM ARE AVAILABLE ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NEITHER VINOCLASSICS NOR ANY OF ITS AGENTS MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE PROGRAM, ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE PROGRAM OR ANY OTHER VINOCLASSICS SERVICE, OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF. VINOCLASSICS HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ITS AGENTS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, (1) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF THE PROGRAM, OR ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE PROGRAM OR ANY OTHER VINOCLASSICS SERVICE, OR AS TO THE BENEFITS TO BE GENERATED BY THE PROGRAM, OR THAT THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE; AND (2) ANY WARRANTIES OF TITLE OR WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Termination
This Agreement begins on the date you submit your Affiliate application and shall be effective for twelve (12) months from the date your first Virtual Store is active at the VinoClassics web site.
7.1 Termination for Convenience
Either party may terminate this Agreement for any reason upon ten (10) days written notice to the other party.
7.2 Termination for Cause
Either party may terminate this Agreement if the other party breaches this Agreement and fails to cure such breach within seven (7) days of receipt of written notice from the non-breaching party of the existence and nature of the breach. Notwithstanding the foregoing, VinoClassics may terminate this Agreement immediately or suspend your participation in the Program upon notice if you violate any of your obligations set forth in Sections 1 and 2. If this Agreement is terminated because of Merchant breach, Merchant shall not be eligible to enter into a new Agreement with VinoClassics, and any attempt to do so shall be null and void. No Merchant shall have any vested right or enforceable interest to participate in the Program.
7.3 Renewal Term(s) and Annual Maintenance Fee
After the Initial Term, this Agreement shall automatically renew for additional 12 month terms, unless
either party provides notice of non-renewal at least thirty (30) days before the end of the applicable Term.
Upon each renewal, VinoClassics shall assess and invoice Merchant an annual maintenance fee, set currently at $0. VinoClassics reserves the right to adjust this Annual Fee.
7.4 Effect of Termination
Upon termination of this Agreement, Merchant virtual store will be immediately removed from our Site.
8. General Provisions
8.1 Notices
We may give general notices to participating Merchants using commercially reasonable efforts to notify you via email of any such general notices, and you agree to be bound thereby. Notices specific to you will be sent, if possible, by electronic mail to your email address, or otherwise by U.S. mail or overnight delivery service. You may give notice to us by email to info@vinoclassics.com, or otherwise by U.S. mail or overnight delivery service.
8.2. Modification
We may modify this Agreement from time to time by sending a notice of such modification by using commercially reasonable efforts to notify you, and your continued participation in the Program following such modification notices will be deemed to be your acceptance of the terms of such modification.
8.3. Relationship of the Parties
The relationship of the parties to this Agreement shall be solely that of independent contractors.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
written above, with the effective date as per the Term indicated above.
VinoClassics Merchant
By: _______________________ By: _______________________
Name:_____________________ Name:_____________________
Title:______________________ Title:______________________