Operation AgreementeBags, Inc. ("eBags") invites you to apply to become a participant in our Affiliate Program (the "Program"). Subject to the terms and conditions of this Agreement (the "Agreement") and our acceptance of your application, you may earn referral fees from eBags for certain purchases of eBags products made by customers acquired through links from your website. All references in this Agreement to "you" or "your" refer to the Program participant and all references to "we," "us" or "our" refer to eBags. PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE "APPROVAL" LINK BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS BELOW, EBAGS IS UNWILLING TO CONSIDER YOUR APPLICATION FOR PARTICIPATION IN THE PROGRAM AND YOU SHOULD CLICK ON THE "DO NOT ACCEPT" LINK BELOW TO DISCONTINUE THE APPLICATION PROCESS. 1. PROMOTION OF EBAGS ON YOUR WEBSITE. You agree (i) to maintain one or more links from your website to our website in accordance with the format instructions on the "How To Set Up Links" page on our site (each a "Link") and (ii) to promote eBags on your website. The Links and home page promotion shall contain only such graphics, trademarks, trade names, service marks or other promotional material or intellectual property provided on the "Logo Images" page of our site (the "Promotional Material") and shall appear on your site in a manner reasonably satisfactory to us. You agree to correctly spell and punctuate the eBags name as either "eBags" or "eBags.com." If you purchase media, including but not limited to placements in any cost per click search or comparison engine or other search engine in which search result page listing order is determined by payment to the engine or other third party, You agree to correctly spell and punctuate the eBags name as either "eBags" or "eBags.com." If you purchase media, including but not limited to placements in any cost per click search or comparison engine or other search engine in which search result page listing order is determined by payment to the engine or other third party, you agree to (a) not bid on the keywords "eBags" or "eBags.com" or any phrase containing these and (b) not link directly to the eBags.com site. Any paid placement must first land on a site maintained by you. In the event we elect to discontinue the use of any Promotional Material, we will notify you and you shall promptly discontinue the use of such Promotional Material. You agree not to alter or modify the Promotional Material in any manner without our prior written consent or to promote eBags through unsolicited emailing (i.e., spamming), newsgroup postings, or any other method of mass communication. You acknowledge and agree that, except for the limited rights granted herein, we retain all right, title and interest in and to the Promotional Material. We retain the right, in our sole discretion, to require you to immediately remove all Links and other eBags promotions if, in our opinion, your site infringes on or violates any applicable law, rule or regulation; any proprietary right of any third party; is defamatory, obscene, offensive or controversial, or is otherwise inappropriate for the promotion of eBags. You also agree not to cut and paste graphic links from eBags site that are not provided for your use on an affiliate network. State of New York, North Carolina, or Rhode Island members enrolled in the eBags, Inc. affiliate program may not include eBags in any means of solicitation in their state targeted at potential customers within their state outside the use of website links to eBags.com. This includes but is not limited to newsletters, telephone calls and emails specifically listing eBags targeting potential customers residing in their respective state. New York, North Carolina, and Rhode Island Members are defined as Principals residing in, headquartered in or incorporated in the state of New York, North Carolina, or Rhode Island. 2. Site Management; Ownership. You shall be solely responsible for creating, operating and maintaining your site at your own expense, including, but not limited to, reviewing, deleting, editing, creating, updating and otherwise managing all content and services available on or through your site. You agree to promptly inform us of any information related to your site that could reasonably lead to a claim, demand, or liability of or against us by any third party. We shall retain all right, title, and interest in and to our site and you shall retain all right, title, and interest in and to your site. 3. Order Processing. We will be responsible for processing orders placed by customers acquired through the links. We reserve the right to reject orders that do not comply with any requirements that we may periodically establish. We currently ship only to addresses in the U.S. 4. Policies and Procedures. Customers who buy products from our site will be deemed to be our customers, and will be subject to all of our rules, policies, and operating procedures. We reserve the right to change our policies, operating procedures, and prices at any time, in our sole discretion. 5. FEES; PAYMENT. 5.1 Fees. For each Qualified Purchase completed during the term of this Agreement, we will pay you a one-time referral fee equal to the product obtained by multiplying (x) the purchase price we received (less discounts, credits, taxes, shipping and handling and credit card fees) by (y) the applicable revenue share percentage set forth below (the "Referral Fee"). "Qualified Purchase," means the purchase of a product from our site by a customer within 60 days after the customer is transported from your site to our site through a properly formatted Link. All Referral Fees are for your use only and therefore may not be offered, directly or indirectly, in whole or in part, to our customers in the form of rebates, coupons, commissions, refunds or otherwise, without our prior written consent. For purposes of the Referral Fees payable under this Agreement, the following revenue share percentages will apply; provided, however, that we may increase or decrease the revenue share percentages at any time in our sole discretion:
**Measured each calendar month, beginning on the 1st of the month. 5.2 Cancellations; Returns. We will have no obligation to pay any Referral Fee for orders that are (i) cancelled or returned or (ii) placed after the termination of this Agreement. All Referral Fees previously paid with respect to orders that are cancelled or returned shall be deducted from the next payment due. 5.3 Payment; Accrual of Fees. Approximately forty-five (45) days after the end of each calendar month during the term of this Agreement, we will pay you the Referral Fees due for the month. All Referral Fees will be paid in United States Dollars. Notwithstanding the foregoing, no payment will be made for any month in which less than twenty-five dollars ($25.00) in Referral Fees were earned (the "Minimum Payout"); such Referral Fees will be accrued and paid in accordance with this Section 5 once at least twenty-five dollars ($25.00) in Referral Fees has been earned. The Minimum Payout amount may be changed at any time in our sole discretion. eBags may choose to pay Referral Fees on a more frequent basis at its discretion. We reserve the right to delay payment of Referral fees earned on orders in excess of Five Hundred Dollars ($500.00) for a reasonable time in order to ensure the validity of the order. 6. REPORTS. You will have access to monthly online reports on the activity originating from your site, which may include information on impressions, click-throughs, orders, shipments and Referral Fees earned. You acknowledge and agree that the names and addresses of our customers, and all related information, shall be the property of eBags exclusively and no rights in or to such information are granted to you under this Agreement. 7. REPRESENTATIONS AND WARRANTIES. You represent and warrant that your site and the content thereon will not: (i) infringe any third party's copyright, patent, trademark, trade secret or other proprietary right or right of publicity or privacy; (ii) violate any law, statute, ordinance or regulation, including without limitation the laws and regulations governing export control; (iii) be defamatory or trade libelous; (iv) be pornographic or obscene; or (v) violate any laws regarding unfair competition, anti-discrimination or false advertising. 8. INDEMNIFICATION. You agree to indemnify and hold eBags, its officers, directors, employees and agents harmless from all third party claims, liabilities, damages, and expenses (including, without limitation, reasonable attorneys' fees) that arise out of or relate to any action or claim based on (i) any breach of the representations and warranties set forth in Section 7 above, (ii) any breach of any covenant, obligation or agreement to be performed by you hereunder or (iii) any intentional or negligent act, omission or misrepresentation by you. 9. DISCLAIMER OF WARRANTIES. EBAGS MAKES NO, AND SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER SUBJECT TO THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EBAGS MAKES NO WARRANTY THAT OPERATION OF THE EBAGS SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE AND EBAGS MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE EBAGS SITE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE EBAGS SITE. 10. LIMITATION OF LIABILITY. IN NO EVENT SHALL EBAGS BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF DATA, EQUIPMENT DOWNTIME OR LOST PROFITS), EVEN IF EBAGS KNOWS OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EBAGS' TOTAL AGGREGATE LIABILITY FOR CLAIMS ARISING UNDER THIS AGREEMENT EXCEED THE REFERRAL FEES PAID TO YOU HEREUNDER. 11. TERM AND TERMINATION. The term of this Agreement shall begin on the date we accept your application, and shall continue thereafter until either party provides written notice of termination. Upon the termination of the Agreement, you agree to immediately cease using the Promotional Material and to remove all Links and other eBags promotions on your site. Sections 2, 7, 8, 9, 10 and 13 shall survive the termination of this Agreement. 12. MODIFICATIONS. We may supplement these terms and conditions from time to time with additional terms and conditions applicable solely to, and for the duration of, special offers or promotions . In addition, 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 our site. Modifications may include, for example, changes in the commission schedule or payment procedures. 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 YOUR BINDING ACCEPTANCE OF THE MODIFIED TERMS. 13. GENERAL PROVISIONS. We are independent contractors and neither party shall be deemed an employee, agent, partner or joint venturer of the other. Neither party shall have the authority to make or accept any offers, representations or warranties on the other's behalf. 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 site. This Agreement is not assignable or transferable without the prior written consent of the other party and any attempt to do so shall be void. Any notice, report, approval or consent required or permitted hereunder shall be in writing to the address specified by the other party. Either party may change its contact information from time to time upon written notice to the other party. No failure or delay in exercising, on the part of either party, any privilege, power or rights hereunder will operate as a waiver thereof. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of Colorado. Any action relating to this Agreement must be brought in the federal or state courts located in Denver, Colorado and you irrevocably consent to the jurisdiction of such courts. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties authorized to bind the parties. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. ACKNOWLEDGED AND AGREED TO BY THE PARTIES: Affiliate Program
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