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Affiliate Agreement

 
1. Overview

This Agreement contains the complete terms and conditions that govern your participation in the OSDisc.com Inc Affiliate Program (the "Program"). The purpose of the Program is to permit you to advertise Products on your site and to earn advertising fees for Qualifying Purchases made by your end users. "We," "us," and "our" refer to OSDisc.com Inc. "You" and "your" refer to the affiliate.

2. Enrollment

To begin the enrollment process, you must complete and submit the Program application. We may reject your application if we determine that your site is unsuitable for our Program, including if it:

(a) Promotes or contains sexually explicit materials;
(b) Promotes violence;
(c) Promotes or employs discriminatory practices based on race, sex, religion, nationality, disability, sexual orientation, or age;
(d) Promotes illegal activities;
(e) Includes any trademark of OSDisc.com, or a variant or misspelling of a trademark of OSDisc.com, in its domain name;
(f) Incorporates any materials which infringe or assist others to infringe on any copyright, trademark, or other intellectual property rights;
(g) Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, or otherwise objectionable to us in our sole discretion.

You will ensure that the information in your Program application and otherwise associated with your account, including your email address, other contact information, and identification of your site, is at all times complete, accurate, and up-to-date. We may send communications relating to the Program to the email address associated with your account. You will be deemed to have received all communications sent to that email address, even if the email address associated with your account is no longer current.

3. Links on Your Site

After you have been notified that you have been accepted into the Program, you may display Special Links on your site. "Special Links" are links to the OSDisc.com site that you place on your site that properly utilize the special "tagged" link formats we provide. Special Links permit accurate tracking, reporting, and accrual of advertising fees.

Links may be created by you or made available to you by us. You may add or delete Links from your site at any time without our approval. You must not make inaccurate, overbroad, deceptive, or otherwise misleading claims about any Product, the OSDisc.com site, or any of our policies, promotions, or prices. Links and related references to limited time promotions must be removed from your site on or before the expiration date of that promotion.

You are solely responsible the content, style, and placement of each Link that you place on your site and for ensuring that Special Links (whether created by you or made available to you by us) include the appropriate formatting necessary for us to properly track referrals of customers from your site.

We will have no obligation to pay you advertising fees if you fail to properly format the Links on your site to the OSDisc.com site as Special Links, including to the extent that such failure may result in any reduction of advertising fee amounts that would otherwise be paid to you under this Agreement.

4. Qualifying Purchases

We will pay you advertising fees on Qualifying Purchases only. A "Qualifying Purchase" occurs when a customer clicks through a Special Link on your site to the OSDisc.com site and during a single Session places an order for a Product.

A "Session" begins when a customer clicks through a Special Link on your site to the OSDisc.com site and ends upon the first occurrence of any of the following: (a) 30-days elapses from the customer's last click-through; (b) the customer places an order for a Product; or (c) the customer follows a link to the OSDisc.com site that is formatted with an Affiliate's tag that is not assigned to you.

Qualifying Purchases exclude the following: (i) any Product purchased through a Special Link by you or on your behalf; (ii) any Product that is canceled or returned; (iii) any Product purchased by a customer who is referred to the OSDisc.com site through a link that is generated or displayed on a Search Engine in response to a general Internet search query or keyword; and (iv) any Product purchased after the termination of this Agreement.

5. Advertising Fees

Advertising fee rates are calculated as a percentage of Qualifying Revenues. "Qualifying Revenues" mean amounts we receive from customers' Qualifying Purchases, excluding shipping, handling, taxes, and service charges, and less any rebates, credit card or PayPal processing fees, and returns.

The advertising fees you may earn will vary depending on the category of Products that are shipped. The advertising fee rates for each category of Products is listed in Table 1. We will determine the classification of Products in each category listed in Table 1.

TABLE 1 - Advertising Fee Rates
CDs and DVDs40%
Software Repositories40%
USB Flash Drives25%
SD & SDHC Flash Cards25%
Books10%

6. Advertising Fee Payment

We will pay you advertising fees on a monthly basis for Qualifying Purchases shipped in a given month. Payments are made approximately thirty days following the end of each calendar month when your account balance reaches twenty-five dollars or more. Payments will be sent to the PayPal account associated with your Program account.

If you are a U.S. citizen, U.S. resident, or U.S. corporation, or if your business is otherwise taxable in the U.S., we may be obligated by law to obtain tax information from you. If we request tax information from you and you do not provide it to us, we may (in addition to any other rights or remedies available to us) withhold your advertising fees until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.

7. Policies and Pricing

Customers who buy products through this Program are our customers with respect to all activities they undertake in connection with the OSDisc.com site. Accordingly, as between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on the OSDisc.com site will apply to those customers, and we may change them at any time.

8. 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 you and us. 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 contradicts or may contradict anything in this section. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Agreement, you will be deemed to have taken the action yourself.

9. Limited License

Subject to the terms of this Agreement and solely for the limited purposes of advertising Products on, and directing end users to, the OSDisc.com site in connection with the Program, we hereby grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to copy and display content from the OSDisc.com site solely on your site.

The license set forth in this section will immediately and automatically terminate upon termination of the Agreement. In addition, we may terminate the license set forth in this section in whole or in part upon written notice to you.

10. Reservation of Rights

Other than the limited licenses expressly set forth in Section 9, we reserve all right, title, and interest in and to the Program, Special Links, Content, any domain name owned or operated by us, our trademarks and logos, and any other intellectual property or technology that we provide or use in connection with the Program.

11. Compliance with Laws

In connection with your participation in the Program you will comply with the U.S. CAN-SPAM Act of 2003, and all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over you.

12. Term and Termination

The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either you or us. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. We may withhold accrued unpaid advertising fees for a reasonable period of time following termination to ensure that the correct amount is paid (e.g., to account for any cancelations or returns).

13. 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 revised agreement on the osdisc.com site. 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 REVISED AGREEMENT ON THE OSDISC.COM SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.

14. Limitation of Liability

WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT, THE PROGRAM, THE OSDISC.COM SITE, OR THE SERVICE OFFERINGS (DEFINED BELOW), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS AGREEMENT, THE PROGRAM, THE OSDISC.COM SITE, AND THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL ADVERTISING FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.

15. Disclaimers

THE PROGRAM, THE OSDISC.COM SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE OSDISC.COM SITE, ANY SPECIAL LINKS, CONTENT, OSDISC.COM DOMAIN NAME, OUR TRADEMARKS AND LOGOS, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED BY US IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS." WE DO NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. WE DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. WE WILL NOT BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAM, CONTENT, OR THE OSDISC.COM SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, WE WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (I) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (II) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (III) ANY TERMINATION OF THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.

16. Disputes

Any dispute relating in any way to the Program or this Agreement will be adjudicated in any state or federal court in Denver County, Colorado, and you hereby consent to exclusive jurisdiction and venue in those courts. The laws of the State of Colorado, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between you and us. Notwithstanding anything to the contrary in this Agreement, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our intellectual property or proprietary rights. You further acknowledge and agree that our rights in the Content are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.

17. Miscellaneous

You acknowledge and agree 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 sites that are similar to or compete with your site. You may not assign this Agreement, by operation of law or otherwise, without our express prior written approval. 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 this provision or any other provision of this Agreement. Whenever used in this Agreement, the terms "include(s)," "including," and "e.g.," mean, respectively, "include(s), without limitation," "including, without limitation," and "e.g., without limitation." Any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under this Agreement, may be made, taken, or given in our sole discretion.