FORM OF MASTER AGREEMENT
Any site can use the following form of master agreement (the "Form”)
owner selling products and services ("Merchant") and any site owner that wishes
to promote and link to the Merchant's site ("Partner"), to confirm the terms and
conditions that will apply to advertising and commission engagements they enter
into via The AWIN Network(tm). The Form also includes certain terms in
favor of The AWIN Network(TM) and AWIN which Merchant and
Partners are required to use as registered members of The AWIN Network(TM)
(see "AWIN Required Provisions" in the Form).
AWIN provides the Form solely for the convenience of
participants in the The AWIN Network(TM) and makes no representation or
warranty of any kind about the Form, including, but not limited to, any
representation that the Form is fair or complete or that it will be updated by
AWIN. Participants in The AWIN Network(tm) use the Form
entirely at their own risk.
You are permitted to access, copy, download, and modify the
form solely for purposes of use as the basis of an agreement between
participants in The AWIN Network(tm). The Form may not be used for any
other purpose, including, but not limited to, use as the basis of an agreement
between Merchant and Partner for transactions that are not conducted through The
AWIN Network(tm).
To confirm your understanding of the above and obtain access to the Form,
please click the "I Accept" button below. Otherwise, click on the "back"
button on your browser to return to the previous page.
[I ACCEPT]
MASTER AGREEMENT
This Master Agreement ("Agreement") is between Bake Me A Wish!
("Merchant") and undersigned entity ("Partner").
BACKGROUND
Partner and Merchant are each enrolled in The AWIN Network(TM).
Partner and Merchant each desire to establish the general terms and conditions
which shall govern advertising and commission arrangements between Partner and
Merchant, which results from their participation in The AWIN Network(TM).
TERMS AND CONDITIONS
In consideration of the promises set forth below, we agree as follows:
1. Offers and Engagements.
1.1. Occasionally, Merchants may post on The AWIN Network(TM) offers to
pay other participants a specified commission in return for certain
advertising services leading to a Qualifying Link (defined below). If such
offers receive an identification number from The AWIN Network(TM), they
shall be deemed an "Offer" for this Agreement. The term
"Offer" shall also include any counter-offers resulting from an Offer.
1.2. If the other party accepts an Offer made by one party by the Offer's terms via The AWIN Network(TM), an "Engagement" will havebeen formed. Each Engagement shall have the same identification number as the original Offer that led to the Engagement and shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Engagement and this Agreement,
the terms of the Engagement shall govern.
1.3. At any time before Partner provides a Qualifying Link, Merchant may, with
or without notice (a) change, suspend, or discontinue any aspect of an Offer or
an Engagement or (b) remove, alter, or modify any graphic or banner ad submitted
by Merchant for an Offer or an Engagement. Partner agrees to implement promptly
any request from the Merchant to remove, alter, or modify any graphic or banner ad
submitted by the Merchant that the Partner is using as part of an Engagement.
2. Partner's Responsibilities.
2.1. Partner will link its site to areas within Merchant's site using special
URLs specified in the Engagement (the "Required URLs"). Partner may post as many
links to the Required URLs and the rest of Merchant's site as it likes on
Partner's site. The position, prominence, and nature of links on the Partner's
site shall comply with any requirements specified in the Engagement but
otherwise will be at the Partner's discretion.
2.2. Partner agrees not to make any representations, warranties, or other
statements concerning Merchant, Merchant's site, any of Merchant's products, or
services, or Merchant's site policies, except as expressly authorized by the
Engagement.
2.3. Partner is responsible for notifying Merchant and The AWIN Network(TM)
of any malfunctioning of the Required URLs or other problems with the Partner's
participation in the Engagement. Merchant will respond promptly to all concerns
upon notification by Partner.
2.4 Partner agrees not to bid on any keyword in Pay per Click Search Engines (PPCSEs)
that is a Merchant trademark (derivation of a trademark or any other word or term
likely to confuse its affiliation with Merchant). Some examples
of these keywords include, but are not limited to:
Bake Me A Wish!, Bake Me A Wish, bakemeawish.com, www.bakemeawish.com,
bake me a wish.com, bake a wish, bake a wish.com
Merchant may, at its sole discretion, modify this list from time to time to include any other
word or phrase.
Failure to comply with this Section may result in suspension or termination from the Merchant's
affiliate program. If placed on suspension, Partner will be prohibited from participating in the
For a minimum of 14 days, the merchant's Affiliate Program will be ineligible to receive any
commissions on the sales generated during the suspension period. After the initial
suspension period, and if in complete compliance with this Agreement and the Engagement, Partners can opt back into the Merchant's Affiliate Program once
in complete compliance with this Section. A second violation of this Section may result in
permanent termination from the Merchant's affiliate program. Merchant’s failure to terminate or otherwise discipline an Affiliate for violations shall not be an implicit acceptance of the Affiliate’s action or a waiver of the Merchant’s right to seek recourse for past or future violations thereafter.
3.
Commissions.
3.1. Merchant agrees to pay Partner the commission specified in the Engagement if
Merchant sells to a visitor to Merchant's site (a "Customer") a product or
service that is the subject of the Engagement and if that Customer has accessed
Merchant's site and purchased the product or service via a Qualifying Link.
3.2. A "Qualifying Link" is a link from the Partner's site to Merchant's using one
of the Required URLs or any other URL provided by Merchant for use in The
AWIN Network(tm) if it is the last link to the Merchant's site that the
Customer uses during a Session where a sale of a product or a service to
Customer occurs. A "Session" is the period beginning with a Customer's
initial contact with Merchant's site via a link from the Partner's site and
terminating when the Customer either returns to the Merchant's site via a link
from a site other than the Partner's site, or the Engagement expires or is
terminated.
3.3. Merchants shall have the sole right and responsibility for processing all
orders made by Customers. Partner acknowledges that all agreements relating to
sales to Customers shall be between the Merchant and the Customer.
3.4. All determinations of Qualifying Links and whether a commission is payable
will be made by The AWIN Network(tm) and will be final and binding on both
Merchant and Partner. Product prices will be set solely by the Merchant at
its discretion.
3.5. At no time will Shipping Fees, Charges for Shipping, or any other related costs
to shipping and logistics be made commissionable. These amounts are excluded from final totals.
4. Ownership and Licenses.
4.1. Each party owns and shall retain all rights, title, and interest in its
names, logos, trademarks, service marks, trade dress, copyrights, and proprietary
technology, including, without limitation, those names, logos, trademarks,
service marks, trade dress, copyrights, and proprietary technology currently used
or which may be developed and/or used by it in the future.
4.2. Merchant grants Partner a revocable, non-exclusive, worldwide license to
use, reproduce, and transmit the name, logos, trademarks, service marks, trade
dress and proprietary technology, as designated in the Engagement or during the
registration process in The AWIN Network(TM), on Partner's site solely for
the purpose of creating links from the Partner's site to the Merchant's site during
Engagements. Except as expressly outlined in this Agreement or permitted by
applicable law, Partner may not copy, distribute, modify, reverse engineer, or
create derivative works from the same. Partner may not sublicense, assign, or
transfer any such licenses for the use of the same, and any attempt at such
sublicense, assignment, or transfer is void.
4.3. Partner grants Merchant a non-exclusive, worldwide, royalty-free license to
use, reproduce, and transmit any graphic or banner ad submitted solely
for co-branding purposes or as a return link from Merchant's site to Partner's
site. Merchant will remove such graphic or banner ad upon Partner's request.
5. Termination.
5.1. Either party may terminate any Engagement at any time by deleting their
acceptance through The AWIN Network(TM). Termination of
an Engagement shall not terminate this Agreement or any other Engagement.
5.2. Either party may terminate this Agreement at any time, for any reason,
provided they provide at least five days prior written notice of such
termination to the other party and The AWIN Network(TM). Termination of
this Agreement shall also terminate any outstanding Engagements. However, all
rights to payment, causes of action, and any provisions which by their terms are
intended to survive termination shall survive termination of this Agreement.
6. Representations.
6.1. Each party represents to the other that (a) it has the authority to enter
into this Agreement and sufficient rights to grant any licenses granted hereby,
and (b) any material which is provided to the other party and displayed on the
other party's site will not (i) infringe on any third party's copyright, patent,
trademark, trade secret, or other proprietary rights or right of publicity or
privacy; (ii) violate any applicable law, statute, ordinance, or regulation;
(iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v)
violate any laws regarding unfair competition, anti-discrimination, or false
advertising; (vi) promote violence or contain hate speech; or (vii) contain
viruses, trojan horses, worms, time bombs, cancelbots, or other similar harmful
or deleterious programming routines.
6.2. EXCEPT FOR THE ABOVE REPRESENTATIONS, NEITHER PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Cross-Indemnification.
7.1. Each party hereby agrees to indemnify, defend, and hold harmless the other
party and its affiliates, directors, officers, employees, and agents, from and
against any liability, claims, losses, damages, injuries or expenses
(including reasonable attorneys' fees) brought by a third party, arising out of
a breach, or alleged breach, of any of its representations or obligations
herein.
8. AWIN Required Provisions.
8.1. Merchant and Partner jointly and severally hereby agree to indemnify,
defend, and hold harmless The AWIN Network(TM) and AWIN
and its affiliates, officers, directors, employees, and agents (collectively,
"AWIN") from and against any liability, claims, losses, damages,
injuries or expenses (including reasonable attorneys' fees) directly or
indirectly arising from or relating to any Offer, Engagement, any other matter
related to this Agreement or the subject matter hereof, any dispute relating
thereto.
8.2. The parties agree that AWIN may rely on any data, notice, instruction
or request furnished to AWIN by either party, which is reasonably believed
by AWIN to be genuine and to have been sent or presented by a person
reasonably believed by AWIN to be authorized to act on behalf of one of the
parties. In the event of any dispute between the parties, the parties agree
that to the extent the parties contact and involve AWIN, AWIN may
consult with and use counsel of its own choice in connection with such dispute
and the reasonable fees and disbursements of AWIN's counsel shall be
within the costs and disbursements covered by the indemnity specified in Section
8.1 above.
8.3. The parties acknowledge and agree that this Agreement and the Engagements
are only made possible due to AWIN and that the parties shall not, for the
duration of this Agreement and for twenty-four (24) months thereafter, enter
into any advertising, collaborations, or other commercial arrangements with each
other in connection with their sites on the World Wide Web except via The
AWIN Network(tm).
8.4. Merchant and Partner acknowledge and agree that the nature of the Product
is such that in its regular operation, it may access and download elements of
software data from resources which are external to the computer or device
running the Product, such as Product-enabled servers. Merchant and Partner
acknowledge that AWIN has not undertaken to provide such external resources
or servers and expressly disclaims any representation or warranty as the
availability, quality, or performance of such resources or whether they may
contain any defects which may affect the performance of the Product or Merchant
or Partner's computer. AWIN shall not be responsible for the provision of any
communications facilities or the costs associated with such communications.
8.5. Merchant and Partner agree that AWIN is an intended third-party
beneficiary."
9. Limitation of Liability.
9.1. In no event shall either party be liable to the other party for any direct,
indirect, special, exemplary, consequential, or incidental damages, even if
informed of the possibility of such damages.
9.2. The parties agree that The AWIN Network(TM) and AWIN
and its affiliates, officers, directors, employees, and agents shall not be liable
to either party for any direct, indirect, special, exemplary, consequential, or
incidental damages, even if informed of the possibility of such damages.
10. General.
10.1. Each party shall act as an independent contractor and shall have no
authority to obligate or bind the other in any respect.
10.2. The parties agree that The AWIN Network(TM) and AWIN
Corporations are intended third-party beneficiaries under this Agreement.
10.3. This Agreement has been made in and shall be construed and enforced by the laws of the state of Merchant's headquarters. Any action to
enforce this Agreement shall be brought in the federal or state courts located
in that state. If you need to send official correspondence, send it via
registered mail to the Merchant's headquarters to the attention of the Merchant's legal
department.
10.4. This Agreement may be agreed to in more than one counterpart, each of
which shall form the same instrument. The parties agree that
execution may be achieved in any format convenient.
10.5. The provisions of this Agreement are independent of and separable from
each other and no provision shall be affected or rendered invalid or
unenforceable because for any reason, any other or others of
them may be invalid or unenforceable in whole or in part.
