This Operating Agreement contains the complete
terms and conditions that apply to you as an Affiliate in the
Affiliate Program of Inc-It-Now.com, owned and operated by Hubbard
Inc., D/B/A HUBCO, and the establishment of links from your
web site to our web site. By submitting an application to
join the Inc-It-Now.com Contract Affiliate Program, you are
confirming that you have read this Operating Agreement and agreed
to be bound by its terms and conditions.
Inc-It-Now.com Affiliate Agreement Definitions
"We", "Our", "Us", "Merchant"
- Inc-It-Now.com Contract, owned and operated by Hubbard Inc.,
D/B/A HUBCO.
"You", "Your" - the business, individual
or entity applying for participation in the Inc-It-Now.com
Affiliate Program.
"Affiliate(s)" - the business, individual
or entity that displays the Merchant's products, services
and/or promotions on its internet site in exchange for receiving
remuneration from the Merchant for sales resulting from such
display.
"Affiliate Site" - the Affiliate's internet
site which displays the Merchants products, services and/or
promotions.
Requirements:
1. Enrollment in the Affiliate Network
To begin the enrollment process, you must submit a completed
Affiliate Application Form. The Application can be found by
logging on to www.Inc-It-Now.com. We will evaluate your application
in good faith and will notify you of your acceptance or rejection
in a timely manner. We may reject your application if we determine
(in our sole discretion) that your site is unsuitable for
our Affiliate Program for any reason, including, but not limited
to, inclusion of content that is, in our opinion, unlawful,
harmful, threatening, defamatory, obscene, harassing, or racially,
ethnically, or otherwise objectionable. If we reject your
application, you are welcome to reapply to the Inc-It-Now.com
Affiliate Program at any time.
2. Promotion of Our Affiliate Relationship
If you qualify and agree to participate as an Affiliate Site,
we will make available to you a variety of graphic and textual
links (each of these links sometimes being referred to herein
as "Links" or, individually, as a "Link"),
which, subject to the terms and conditions hereof, you shall
display prominently throughout your site as you see fit and
with our consent. The Links will serve to identify your site
as a member of the Inc-It-Now.com Affiliate Program and will
establish a link from your site to ours. The Links may connect
to any area of our site.
In utilizing the Links, you agree that you will cooperate
fully with us in order to establish and maintain such Links.
You also agree that you will display on your site only those
graphic or textual images (indicating a Link) provided by
us, and you will substitute such images with any new images
provided by us from time to time throughout the term of this
Agreement. All Affiliate Sites shall display such graphic
and/or textual images prominently in relevant sections of
their site. Any information with respect to us that is going
to be displayed on your site must be provided by us or approved
by us in writing in advance of any display. Affiliates are
not permitted to establish any Links to us in any community,
forum, chat room or electronic bulletin board. All Links may
be modified and/or expanded from time to time throughout the
term of this Agreement pursuant to the mutual agreement of
the parties hereto. You are not allowed to post any coupon
information unless we have given you written permission. Each
Link connecting users of your site to the pertinent area of
our site will in no way alter the look, feel, or functionality
of our site. In addition, we encourage (but do not require)
you to include a Link to the home page of our site. We are
not responsible for missing or lost revenue/sales in the case
where the Affiliate alters the Link in any way. Promotions
of Inc-It-Now.com's product offers can only be promoted in
the exact manner promoted by Inc-It-Now.com, which includes
the posting of expiration dates, availability of the offer
and any related legal disclaimers. Affiliates may establish
a Link only on URL's, which have been approved by Inc-It-Now.com
in the application process.
3. Commissions
You will be entitled to receive a twenty percent (20%) commission
on the Net Revenue all sales generated by customers who follow
the special link from your web site to the Inc-It-Now.com
web site. Net Revenue is defined as the total revenue received
on an order less state filing fees, shipping, handling and
taxes, and less the cost of returns and charge backs. Commissions
will be paid to you on a monthly basis. There is no minimum
commission that you must accrue before receiving payment.
If you earn any commission, regardless of amount, Inc-It-Now.com
will send you a check. However, if you do not earn any commission
in a particular month, you will not receive notification from
us. You will be entitled to a 20% residual commission from
any referred customers who make purchases within a six-month
period beginning from date of first purchase. We utilize cookie
technology in our tracking software, which allows us to retain
information on customers. We will offer residual income as
mentioned above unless said customer deletes or removes the
cookie we have placed on their machine. Without this cookie,
we can no longer track the customer and therefore will be
unable to offer residual income.
Commission Determination
Only products and services that are (i) sold by us, (ii) purchased
by Customers linking to our site from your site pursuant to
a Link, (iii) shipped and/or supplied by us, and (iv) fully
paid for will qualify for a commission (each, a "Qualifying
Purchase"). If a product or service that generated a
commission is returned, we will deduct the corresponding amount
from your next quarterly payment. If there is no subsequent
payment, we will bill you for the amount of the commission
erroneously paid. Commission rates will be based on the amount
actually paid to us for Net Revenue of qualifying purchases.
Net Revenue is defined as the total revenue received on an
order less state filing fees, shipping, handling and taxes,
and less the cost of returns and charge backs.
4. Reports of Sales
You will be given a password and have the ability to enter
a password-protected site to receive your sales statistics
on a daily basis. Commission status information will be included
in your report.
5. Obligations Regarding your Site
a. You will be solely responsible for the development, operation,
and maintenance of your site and for all materials that appear
on your site. Such responsibilities include, but are not limited
to, the technical operation of your site and all related equipment;
creating and posting product reviews, descriptions, and references
on your site and linking those descriptions to our site; the
accuracy and propriety of materials posted on your site (including,
but not limited to, all Inc-It-Now.com Product and Services-related
materials); ensuring that materials posted on your site do
not violate or infringe upon the rights of any third party
and are not libelous or otherwise illegal. We disclaim all
liability and responsibility for such matters.
b. We have the right in our sole discretion to monitor your
site at any time and from time to time to determine if you
are in compliance with the terms of this Agreement. If you
are not in compliance we may terminate this Agreement immediately.
6. Inc-It-Now.com Responsibilities
We will be responsible for providing all information necessary
to allow you to make appropriate Links from your site to our
site. We will be solely responsible for processing every order
placed by a customer following a special Link from your site,
for tracking the volume and amount of sales generated by your
site, and for providing information to Affiliate Sites regarding
sales statistics. We will be responsible for order entry,
payment processing, shipping, cancellations, returns, and
related customer service. Any determination made by Inc-It-Now.com
regarding the foregoing shall be binding absent manifest error.
7. Policies and Pricing
Customers who buy Inc-It-Now.com Products or Services through
the Affiliate Network will be deemed to be our customers.
Accordingly, all of our rules, policies, and operating procedures
concerning customer orders, customer service, and Inc-It-Now.com
Product and Services 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 Inc-It-Now.com Products and Services sold under the Affiliate
Network in accordance with our own pricing policies. Prices
and availability of Inc-It-Now.com Products and Services may
vary from time to time and region to region. Because price
changes may affect products that you have listed on your site,
you may or may not be able to include price information in
your product descriptions. We will use commercially reasonable
efforts to present accurate information, but we cannot guarantee
the availability or price of any particular product.
8. Emails and Publicity
You shall not create, publish, distribute, permit, or transmit
any written material or electronic communications that makes
reference to us without first submitting such material to
us and receiving our written consent, which shall not be unreasonably
withheld.
9. Licenses and Use of the Inc-It-Now.com Logos
a. WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE
RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS SOLELY IN ACCORDANCE
WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION
WITH SUCH LINKS, TO USE THE INC-IT-NOW.COM LOGO AND SIMILAR
IDENTIFYING MATERIAL RELATING TO US (BUT ONLY IN THE FORM(S)
THAT THEY ARE PROVIDED BY US) (COLLECTIVELY, THE "LICENSED
MATERIALS"), FOR THE SOLE PURPOSE OF SELLING INC-IT-NOW.COM
PRODUCTS AND SERVICES ON YOUR SITE FOR INC-IT-NOW.COM. YOU
MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN
ANY WAY. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS
TO THE EXTENT THAT YOU ARE A MEMBER IN GOOD STANDING OF THE
INC-IT-NOW.COM AFFILIATE PROGRAM.
b. You shall not make any specific use of any Licensed Materials
for purposes other than selling Inc-It-Now.com Products and
Services, without first submitting a sample to us and obtaining
the prior written consent of your Inc-It-Now.com account executive,
which consent shall not be unreasonably withheld. You agree
not to use the Licensed Materials in any manner that is disparaging
or that otherwise portrays us in a negative light. We reserve
all of our rights in the Licensed Materials and of our other
proprietary rights. We may revoke your license at any time,
by giving you written notice. If not revoked, this license
shall terminate upon expiration or termination of this Agreement.
c. You grant to us a non-exclusive license to utilize your
names, titles, and logos, as the same may be amended from
time to time (the "Affiliate Trademarks"), to advertise,
market, promote, and publicize in any manner our rights hereunder;
provided, however, that we shall not be required to so advertise,
market, promote, or publicize the Affiliate Trademarks. This
license shall terminate upon the expiration or termination
of this Agreement.
10. Term of the Agreement
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
written notice of termination. You are only eligible to earn
commission on sales occurring during the term, and commissions
earned through the date of termination will remain payable
only if the related Inc-It-Now.com Products or Services orders
are not canceled or returned. We may withhold your final
payment for a reasonable time to ensure that no overpayment
is made.
11. Modification
We may modify any of the terms and conditions contained in
this Agreement at any time in our sole discretion. You will
be notified by email and a change notice will be posted on
our site. Modifications may include, but are not limited to,
changes in the scope of available commissions, commission
schedules, payment procedures, and Affiliate Program rules.
If any modification is unacceptable to you, your only recourse
is to terminate this agreement. Your continued participation
in the Affiliate Program following our posting of a change
notice or new agreement on our site will constitute binding
acceptance of the change.
12. Disclaimers
We make no express or implied warranties or representations
with respect to the Affiliate Program or any Inc-It-Now.com
Products or Services sold through the Affiliate Program (including,
without limitation, WARRANTIES OF FITNESS, MERCHANTABILITY,
NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF
COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). In addition,
we make no representation that the operation of our site will
be uninterrupted or error free, and we will not be liable
for the consequences of any interruptions or errors.
13. Relationship of Parties
You and Inc-It-Now.com are independent contractors, and nothing
in this Agreement will create any partnership, joint venture,
agency, franchise, sales representative, or employment relationship
between the parties. 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 reasonably would contradict anything in this Section.
14. Representations and Warranties
You hereby represent and warrant to us as follows:
a. This Agreement has been duly and validly executed and delivered
by you and constitutes your legal, valid, and binding obligation,
enforceable against you in accordance with its terms.
b. The execution, delivery, and performance by you of this
Agreement and the consummation by you of the transactions
contemplated hereby will not, with or without the giving of
notice, the lapse of time, or both, conflict with or violate
(i) any provision of law, rule, or regulation to which you
are subject, (ii) any order, judgment, or decree applicable
to you or binding upon your assets or properties, (iii) any
provision of your by-laws or certificate of incorporation,
or (iv) any agreement or other instrument applicable to you
or binding upon your assets or properties.
c. You are the sole and exclusive owner of the Affiliate Trademarks
and have the right and power to grant to us the license to
use your trademarks in the manner contemplated herein, and
such grant does not and will not (i) breach, conflict with,
or constitute a default under any agreement or other instrument
applicable to you or binding upon your assets or properties,
or (ii) infringe upon any trademark, trade name, service mark,
copyright, or other proprietary right of any other person
or entity.
d. No consent, approval, or authorization of, or exemption
by, or filing with, any governmental authority or any third
party is required to be obtained or made by you in connection
with the execution, delivery, and performance of this Agreement
or the taking by you of any other action contemplated hereby.
e. There is no pending or, to the best of your knowledge,
threatened claim, action, or proceeding against you, or any
Affiliate of yours, with respect to the execution, delivery,
or consummation of this Agreement, or with respect to your
trademarks, and, to the best of your knowledge, there is no
basis for any such claim, action, or proceeding.
f. During the term of the Agreement, you will not include
in your site content that is, in our opinion, unlawful, harmful,
threatening, defamatory, obscene, harassing, racially, ethically,
or otherwise objectionable.
g. You are at least eight-teen (18) years of age.
h. Your Affiliate site is operated within the confines of
the United States of America.
15. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR
DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE
PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH
RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT
EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER
THIS AGREEMENT.
16. Indemnification
You hereby agree to indemnify and hold harmless us and our
subsidiaries and Affiliates, and their directors, officers,
employees, agents, shareholders, partners, members, and other
owners, against any and all claims, actions, demands, liabilities,
losses, damages, judgments, settlements, costs, and expenses
(including reasonable attorneys' fees) (any or all of the
foregoing hereinafter referred to as "Losses") insofar
as such Losses (or actions in respect thereof) arise out of
or are based on (i) any claim that our use of the Affiliate
Trademarks infringes on any trademark, trade name, service
mark, copyright, license, intellectual property, or other
proprietary right of any third party, (ii) any misrepresentation
of a representation or warranty or breach of a covenant and
agreement made by you herein, or (iii) any claim related to
your site, including, without limitation, it's development,
operation, maintenance and content therein not attributable
to us.
17. Confidentiality
Each of the parties agree that all information including,
without limitation, the terms of this Agreement, business
and financial information, customer and vendor lists, and
pricing and sales information, shall remain strictly confidential
and shall not be utilized for any purpose outside the terms
of this Agreement except and solely to the extent that any
such information is (a) already lawfully known to or independently
developed by the receiving party, (b) disclosed in published
materials, (c) generally known to the public, or (d) lawfully
obtained from any third party not having any obligation of
confidentiality to the discloser hereunder. Notwithstanding
the foregoing, each party is hereby authorized to deliver
the copy of any such information (a) to any person pursuant
to a valid subpoena or order issued by any court or administrative
agency of competent jurisdiction, (b) to its accountants,
attorneys, or other agents on a confidential basis, and (c)
otherwise as required by applicable law, rule, regulation,
or legal process including, without limitation, the Securities
Exchange Act of 1933, as amended, and the rules and regulations
promulgated there under, and the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
there under.
18. Independent Investigation
YOUR APPLICATION SUBMISSION ACKNOWLEDGES THAT YOU HAVE READ
THIS AGREEMENT AND AGREE TO BE BOUND BY ALL ITS TERMS AND
CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY
OR INDIRECTLY) SOLICIT CUSTOMER RELATIONSHIPS ON TERMS THAT
MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT. WE MAY
ALSO SOLICIT CUSTOMER RELATIONSHIPS WITH ENTITIES THAT OPERATE
WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE.
YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING
IN THE INC-IT-NOW.COM AFFILIATE PROGRAM AND ARE NOT RELYING
ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN
AS SET FORTH IN THIS AGREEMENT.
19. Governing Law
This Agreement will be governed by the laws of the United
States and the State of New York, without reference to rules
governing choice of laws. Any action relating to this Agreement
must be brought in the federal or state courts located in
New York and you irrevocably consent to the jurisdiction of
such courts. You may not assign this Agreement, by operation
of law or otherwise, without our 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. 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 a provision or any other provision of this Agreement. |