Terms of Agreement - Active Videos Affiliates Program

AFFILIATE PROGRAM AGREEMENT

This Agreement contains the complete terms and conditions that apply to your participation as an affiliate in the Affiliates Program of Active Videos and the establishment of links from your affiliate Web site to our Web site "Active Videos". As used in this Agreement, "we" or "us" means Active Videos, "you" or "your" or "our" means the applicant, and "Product" means any item offered for sale by us on the Active Videos web site or on your web site by means of placing HTML code provided by us.

1. Agreement

By completing and submitting the Affiliate Program Registration Form, you are entering into a legal agreement with Active Videos on the terms and conditions set forth below.

2. Understanding of Affiliate Program Terms

You acknowledge that you have read this Agreement and agree to all of its terms and conditions. You understand that Active Videos may, at any time (directly or indirectly) solicit from others linking services on terms that differ from those contained in this Agreement, or from others who operate sites that are similar to or compete with your site. You acknowledge that you independently have evaluated the desirability of participating in Active Videos Affiliate Program and are not relying on any representation, guarantee or statement other than as set forth in this Agreement.

3. Enrollment in the Affiliate Program

To begin the enrollment process, you will submit an Affiliate Registration form via our web site. We will evaluate your application in good faith and will notify you of your acceptance or rejection. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Affiliate Program for any reason, including, but not limited to, if your site incorporates images or content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable, such as sites that facilitate illegal activity, depict sexually explicit images; promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promote illegal activities or incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights (collectively "Content Restrictions").

4. Commissions

Active Videos will pay you a commission equal to fifteen (15%) percent (the "Commission Rate") of the Net Sales derived by Active Videos from the purchase of Product by users of your site who purchase such Product by accessing the Active Videos site through the link from your site to our site, and then placing an order and paying for such order on-line. For the purposes of this Agreement "Net Sales" shall mean sales revenues of shipped product less amounts collected by us for sales taxes, duties, shipping, handling, gift wrapping, credit card fees and similar charges. The Commission Rate is subject to change at any time or from time to time, in our sole and absolute discretion. You will be notified of any change in the Commission Rate. Net Sales will also be reduced for amounts due to credit card fraud, bad debts, cancellations and credits for returned goods. Active Videos will pay you commissions on a monthly basis. Within 30 days or a reasonable time after the end of each calendar month, Active Videos will send you a check for the commissions earned during that month, less any taxes that Active Videos may be required to withhold. However, if the commissions you earned during any calendar month are less than $25, then Active Videos will hold those commissions until the month in which the total amount due to you meets or exceeds $25, or until this Agreement is terminated (if earlier).

Only Product that is sold by us to users of your site through Links to our site, shipped to a customer and for which we have received full payment will qualify for a commission. For a sale to generate a commission, the customer must follow the Link from your site to our site, purchase the product or products in question using our online ordering system, accept delivery of the item at the shipping destination, and remit full payment to us.

5. Order Processing.

We will be responsible for providing all information necessary to allow you to make appropriate Links from your site to our site. However, all Links must be approved by us. We will process orders placed by customers who follow the Links from your site to the Active Videos web page(s). We reserve the right to reject orders that do not comply with certain requirements, that we periodically may establish. We will be solely responsible for all aspects of order processing and fulfillment, including order entry, payment processing, shipping, cancellations, returns and related customer service. We will track the volume and amount of sales generated by your site and will make unaudited reports, summarizing this sales activity, available to you on a monthly basis. The form, content, and frequency of the reports may vary from time to time in our discretion.

6. Policies and Pricing.

Customers who buy Product through the Affiliate Program will be deemed to be customers of Active Videos. Accordingly, all Active Videos rules, policies, and operating procedures concerning customer orders, customer service, and sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for Product sold under the Affiliate Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular Product.

7. Reporting

Active Videos will provide you with an automated email copy of every order placed through your site at the moment the order is placed, and an end of the month emailed summation of your totals.

8. Publicity

You shall not create, publish, distribute or permit any written material that makes reference to us, without first submitting such material to us and receiving our written consent.

9. Obligations Regarding Your Site

You are solely responsible for the development, operation and maintenance of your site and for all materials and content that appear on your site. Active Videos will not be responsible for any of the foregoing. You agree to indemnify and hold Active Videos harmless from all damages, claims, fees (including attorneys' fees) and expenses relating to the development, operation or maintenance of your site, including content not attributable to Active Videos.

10. Term of the Agreements.

The term of this Agreement will begin upon our acceptance of your Affiliate Program 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 notice of termination. Notice by e-mail, to your address on our records, is considered sufficient notice for to terminate this Agreement. Upon such notice, you agree to promptly destroy or return to Active Videos all artwork pertaining to Active Videos in your possession or control and you shall immediately remove from your site any or all Active Videos Marks, links to the Active Videos site, and all references to Active Videos and the Active Videos site. If this Agreement is terminated because you have violated the terms of this Agreement or if this Agreement is terminated because your site becomes subject to the Content Restrictions set forth in Section 3, you are not eligible to receive any commissions payments, even for commissions earned prior to the date of termination. If this Agreement is terminated for any other reason, you are only eligible to earn a commission on sales occurring during the term of the Agreement, and commissions earned through the date of termination will remain payable only if the related orders are not cancelled or returned. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.

11. Modification

Active Videos may modify any of the terms and conditions contained in this Agreement upon notice. Active Videos will notify you via e-mail. If a modification is unacceptable, you may terminate this Agreement by giving notice of termination to Active Videos and following the procedures in Section 10 (Terms of Agreement). If you do not give Active Videos notice and continue to display the Links on your site, then you will be considered to have accepted the modifications.

12. Relationship of the Parties

The relationship between you and Active Videos is that you are an independent contractor of Active Videos, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales representative or employment relationship between you and Active Videos. You understand that you do not have authority to make or accept any offers or make any representations on behalf of Active Videos. You may not make any statement, whether on your site or otherwise, that would contradict anything in this section.

13. Indemnification.

You hereby agree to indemnify, defend and hold harmless Active Videos, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, demands, losses, liabilities, damages or expenses (including attorneys' fees and costs) of any nature whatsoever incurred or suffered by us (collectively the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of, are related to, or are based on (i) any claim or threatened claim that our use of the Affiliate Trademarks infringes on the rights of any third party; (ii) the breach of any representation or warranty made by you herein; or (iii) or any claim related to your site.

14. Disclaimers

EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, ACTIVE VIDEOS MAKES NO, AND EXPRESSLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AFFILIATE PROGRAM, THE LINKS, WEB SITE PAGES, OR ANY OTHER SERVICE PROVIDED BY ACTIVE VIDEOS HEREUNDER, OR ANY OTHER SERVICE, CONTENT, TOOLS OR RELATED DOCUMENTS OR MATERIALS (IN ELECTRONIC FORM OR OTHERWISE) PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, ACTIVE VIDEOS EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY, FUNCTIONALITY OR ANY OTHER ASPECT OF ACTIVE VIDEOS' SITE. You understand that the operation and/or use of the Links or the Active Videos Site Pages may not be uninterrupted or error free, and that the Pages may have errors or omissions. You agree that Active Videos will not be liable for any interruptions or errors in using the Links or Pages. The provisions of this Section survive termination or expiration of the Agreement.

15. Limitation of Liability

ACTIVE VIDEOS WILL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ACTIVE VIDEOS' AFFILIATE PROGRAM, EVEN IF ACTIVE VIDEOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LOSS OF DATA OR LOSS OR INTERRUPTION OF SERVICES OR COMMUNICATIONS. FURTHER, ACTIVE VIDEOS' AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE TOTAL COMMISSION FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT. THE PROVISIONS OF THIS SECTION SURVIVE TERMINATION OR EXPIRATION OF THE AGREEMENT.

16. Confidentiality

We may disclose to you certain information as a result of your participation as part of the Affiliate Program, which information we consider to be confidential (herein referred to as "Confidential Information"). For purposes of this Agreement, the term "Confidential Information" shall include, but not be limited to, any modifications to the terms and provisions of this Affiliate Program Agreement made specifically for your site and not generally available to other members of the Affiliate Program, website, business and financial information relating to Active Videos' customer and vendor lists relating to Active Videos and pricing and sales information for Active Videos and any members of the Affiliate Program, other than you. Confidential Information shall also include any information that we designate as confidential during the term of this Agreement. You agree not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or if same is required by law or legal process. We make no warranty, expressed or implied, with respect to any information delivered hereunder, including implied warranties of merchantability, fitness for a particular purpose or freedom from patent, trademark or copyright infringements, whether arising by law, custom or conduct, or as to the accuracy or completeness of the information and we shall not have any liability to you or to any other person resulting from your or such third person’s use of the information.

17. Miscellaneous Provisions

THIS AGREEMENT WILL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF TEXAS AND THE UNITED STATES OF AMERICA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. This is the entire Agreement between you and Active Videos with respect to the Active Videos Affiliate Program. You may not assign this Agreement, by operation or law or otherwise, without Active Videos 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. Active Videos failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of Active Videos' right to subsequently enforce that provisions, or any other provisions of this Agreement. The provisions of this Section survive termination or expiration of the Agreement.

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