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  1. #1
    Affiliate Manager Allen Nance's Avatar
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    January 18th, 2005
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    Affiliate Network Operating Agreement

    This Affiliate Network Operating Agreement ("Agreement") contains the complete terms and conditions that apply to your participation in Net Apparel’s Affiliate Network, which is administered by The LinkShare Network, and the establishment of Links from your web site to the Net Apparel Site.


    1. Definitions

    "Affiliate" means any business, individual or entity whose application to participate in the Affiliate Network has been accepted, and that displays and/or provides Links to the Net Apparel Site in exchange for receiving remuneration from Net Apparel for sales resulting from such display in accordance with this Agreement.

    "Affiliate Network" means the Affiliate Sites of all Affiliates, collectively.

    "Affiliate Site" means each Affiliate's web site which, pursuant to an agreement with Net Apparel, provides Links to the Net Apparel Site.

    "Net Apparel" means Net Apparel LLC.

    "Net Apparel Site" means Net Apparel's web site, www.justmysize.com.
    2. Enrollment in the Affiliate Network

    To begin the enrollment process, submit a complete Affiliate Membership Agreement via the LinkShare Site or the Net Apparel Site. Net Apparel will notify you of its acceptance or rejection in a timely manner. Net Apparel may reject your application for any reason, in its sole discretion. Without limiting the foregoing, Net Apparel will reject your application if your web site includes content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable.

    3. Links

    A. Once your web site has been accepted into the Affiliate Network and becomes an Affiliate Site, Net Apparel will make available to you a variety of graphical and textual links that point to specific URLs ("Links"), which, subject to the terms and conditions hereof, you may display on your Affiliate Site. The Links will identify your Affiliate Site as a member of the Affiliate Network and will establish a link from your Affiliate Site to the Net Apparel Site. You may display on your Affiliate Site any number or combination of Links.

    B. You agree to:

    (i) cooperate fully with Net Apparel in order to establish and maintain the Links;

    (ii) display on your Affiliate Site only those Links to the Net Apparel Site that are provided to you by Net Apparel;

    (iii) upon request by Net Apparel, promptly replace any Link with a new Link provided by Net Apparel from time to time; and

    (iv) display such Links prominently in the relevant sections of your Affiliate Site.

    C. You acknowledge that, through your use of the Links, Net Apparel may receive information from or about users of your Affiliate Site, and you consent that Net Apparel may use and disclose any such information.

    D. You will in no way alter the look, feel or functionality of a Link, nor will you alter the URL to which it points.

    E. In addition, Net Apparel encourages (but does not require) you to include a Link to the home page of the Net Apparel Site.

    4. Commissions

    A. You will receive commissions only with respect to those Net Apparel products that are (i) sold by Net Apparel via the Net Apparel Site during the term of this Agreement, (ii) purchased by a customer during a visit to the Net Apparel Site that was accomplished either (a) via a Link from your Affiliate Site, or (b) within seven days after accessing the Net Apparel Site via a Link from your Affiliate Site; provided that, (I) the customer used the same computer and browser during both the initial visit and the visit during which the purchase was made, and (II) the customer did not, during the seven-day period following the initial visit, delete (or set the computer to automatically delete) the cookie placed by Net Apparel on the customer’s computer at the time of the initial visit, (iii) shipped by Net Apparel, and (iv) for which Net Apparel has received full payment; (each, an "Eligible Purchase"). You acknowledge that Net Apparel, in its sole discretion, may reject any order that it receives via your Affiliate Site. Eligible Purchases must occur during the term of this Agreement (i.e., before you give or receive notice of termination), and commissions earned before the date of termination will remain payable only if the applicable orders are not canceled or returned. Commissions will be based on the aggregate amount actually paid to Net Apparel for Eligible Purchases, excluding amounts collected by Net Apparel for sales and other taxes, duties, gift-wrapping, shipping, handling, and similar charges, amounts due to credit card fraud and bad debt, and credits for returned products ("Net Sales"). Affiliates receive a commission of 5% of Net Sales for each Eligible Purchase.

    B. Within thirty (30) days after the end of each calendar month, Net Apparel will send you (i) a commission check for applicable commissions earned by you during such month (less any taxes required to be withheld under applicable law), and (ii) a statement of activity, provided, however, that Net Apparel will not send you a commission check unless you have accumulated at least $25 in commissions. Notwithstanding the foregoing, if this Agreement terminates before you have accumulated at least $25 in commissions, Net Apparel will send you a check for the total commissions accumulated by you after such termination, in accordance with the procedures set forth in Section 8(B)(ii).

    C. You shall be responsible for any taxes required to be paid with respect to commissions Net Apparel pays to you.


    5. Net Apparel's Obligations

    A. You shall not be a party to any transaction between Net Apparel and a customer who purchases from Net Apparel via your Affiliate Site. All such customers shall be subject to Net Apparel's standard applicable polices and procedures, as such polices and procedures may change from time to time. Net Apparel will be solely responsible for all customer service related to any order placed by a customer via your Affiliate Site.

    B. Net Apparel will give you a password that will allow you to access a web site that is updated each business day with a record of Eligible Purchases made via your Affiliate Site. Notwithstanding the foregoing, Net Apparel may, at any time, change the method by which it informs you of sales activities generated by your Affiliate Site.

    6. Licenses and Use of the Net Apparel Logos and Trademarks

    A. Net Apparel grants to you a non-exclusive, non-transferable, revocable, limited right and license to: (i) display the Links (or any other text or graphics that Net Apparel explicitly grants you permission to display) (the “Licensed Materials”) on your Affiliate Site, solely for the purposes of this Agreement. You may not alter, modify or change the Licensed Materials. You are entitled to display the Licensed Materials only during the term of this Agreement.

    B. You shall not use any Licensed Materials (i) for purposes other than advertising the Net Apparel products on your Affiliate Site without obtaining the prior written consent of your Net Apparel account executive, or (ii) in any manner that disparages Net Apparel or otherwise portrays Net Apparel in a negative light. You agree to follow all policies regarding Licensed Materials provided to you by Net Apparel from time to time. Net Apparel reserves all of its rights in the Licensed Materials and in all other Net Apparel copyrights, trademarks, tradenames, and other intellectual property rights.

    C. You grant to Net Apparel a non-exclusive license to utilize your name and the names, titles, and logos used on your Affiliate Site, as the foregoing may be changed or altered by you from time to time (the "Affiliate Trademarks"), solely for the purposes of advertising, marketing, promoting, and publicizing in any manner Net Apparel's rights hereunder; provided, however, that Net Apparel shall not be required to advertise, market, promote, or publicize the Affiliate Trademarks. This license shall terminate upon termination of this Agreement.

    7. Obligations Regarding Your Affiliate Site

    A. You shall be solely responsible for the creation and operation of your Affiliate Site and for all materials that appear on your Affiliate Site. Such responsibilities include, but are not limited to (i) the operation, design and coding of your Affiliate Site, (ii) the operation and maintenance of your computer equipment, (iii) uploading and displaying the Links, (iv) the accuracy and propriety of materials posted on your Affiliate Site, (v) the legality of your use of information about your users that you collect via your Affiliate Site, and (vi) ensuring that materials posted on your Affiliate Site do not violate or infringe upon the rights of any third party and are not libelous or illegal.

    B. You shall not:
    (i) cause your Affiliate Site to be a copy of or to resemble the look and feel of the Net Apparel Site;
    (ii) create the impression that your Affiliate Site is the Net Apparel Site or any part of it;
    (iii) frame any page of the Net Apparel Site with your Affiliate Site (including but not limited to pages of the Net Apparel Site opened by users of your Affiliate Site via a Link);
    (iv) include price information regarding any Net Apparel products on your Affiliate Site;
    (v) infringe, misappropriate or violate any third party’s copyrights, trademarks or other intellectual property rights on your Affiliate Site;
    (vi) make any representations, warranties (express or implied) or covenants regarding Net Apparel, the Net Apparel Site or the Net Apparel products on your Affiliate Site;
    (vii) send unsolicited commercial advertisements using Net Apparel Marks;
    (viii) publish or distribute any written material that makes reference to Net Apparel without first submitting such material to Net Apparel and receiving its written consent;
    (ix) violate any federal, state or local law, rule or regulation with respect to the subject matter of this Agreement; or
    (x) directly or indirectly provide any incentives, kickbacks, discounts or other forms of consideration for purchasing from Net Apparel via your Affiliate Site.

    C. Except to the extent that you have received permission from Net Apparel in writing, your Affiliate Site shall not contain any content from the Net Apparel Site or any materials which are proprietary to Net Apparel, other than the Licensed Materials. You further agree that:
    (i) you have not registered and will not register any domain name or trademark that contains any of the following: "Sara Lee," "Net Apparel," “One Hanes Place,” “Just My Size,” "L'eggs," “Hanes,” “Hanes Her Way,” “Playtex,” “Bali,” “Champion,” or any variation thereof (collectively, the "Net Apparel Marks");
    (ii) you will not purchase or otherwise contract with a third party to exploit any of the Net Apparel Marks for the purpose of causing your Affiliate Site to appear as a search result in any search engine or for any other reason;
    (iii) you will not utilize “metatags” that contain any Net Apparel Marks in your Affiliate Site for the purpose of causing your Affiliate Site to appear as a search result in any search engine; and
    (iv) you will not redirect the URL of your Affiliate Site to the Net Apparel Site or to any other web site.

    D. You will make available to traffic to your Affiliate Site only those discount codes that have been authorized for your use by the express written consent of Net Apparel.

    E. Net Apparel has the right in its sole discretion to monitor your Affiliate Site to determine if you are in compliance with the terms of this Agreement. If you are not in compliance, Net Apparel may terminate this Agreement immediately.

    8. Agreement Term

    A. The term of this Agreement will begin upon Net Apparel's acceptance of your Affiliate Network Application and will end immediately upon termination by either party. Either party may terminate this Agreement at any time, in its sole discretion, by providing the other party with written notice of termination.

    B. Upon termination by either party:

    (i) You shall immediately remove from your Affiliate Site and cease your use of all Links, Licensed Materials and Net Apparel Marks.

    (ii) After a reasonable period of time to allow for returns of products ordered through your Affiliate Site shortly before termination, Net Apparel shall make its final commission payment to you. Notwithstanding the foregoing, if products for which you were paid commissions are returned after such payment, Net Apparel will bill you for, and you agree to repay to Net Apparel, the commissions you received with respect to such products.

    (iii) The terms and conditions of this Agreement shall survive the termination hereof to the extent necessary to carry out the intent of the parties as expressed herein.

    9. Disclaimers

    THE NET APPAREL SITE, THE LINKS AND THE LICENSED MATERIALS ARE PROVIDED “AS IS WHERE IS” WITHOUT ANY WARRANTY OF ANY KIND. NET APPAREL HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE NET APPAREL SITE, THE LINKS, THE LICENSED MATERIALS, THE AFFILIATE NETWORK OR ANY NET APPAREL PRODUCTS SOLD THROUGH THE AFFILIATE NETWORK, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. In addition, (i) Net Apparel makes no representation that the operation of the Net Apparel Site will be uninterrupted or error-free, and (ii) Net Apparel disclaims all responsibility and liability with respect to the operation and content of your Affiliate Site.

    10. Representations and Warranties

    You represent and warrant to Net Apparel 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 (if applicable), 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 Net Apparel the license to use the Affiliate 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 of your affiliated persons, entities or companies, with respect to the execution, delivery, or consummation of this Agreement, or with respect to the Affiliate Trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.

    F. If you are a natural person (as opposed to a corporation or other entity), you are at least 18 years of age.

    11. Confidentiality

    Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning either party or any of Net Apparel's affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party for its 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 through a source or sources other than such party hereto or its affiliates. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (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.

    12. Limitation of Liability

    NET APPAREL WILL NOT BE LIABLE FOR INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE NETWORK, EVEN IF NET APPAREL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NET APPAREL’S TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE TOTAL COMMISSIONS PAID TO YOU UNDER THIS AGREEMENT.

    13. Indemnification

    You shall indemnify and hold harmless Net Apparel, its subsidiaries, affiliates, and their respective 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 and expenses) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereto) arise out of or are based on: (a) any claim that Net Apparel's 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; (b) any breach of your warranties, representations or covenants contained herein; (c) any claim related to your Affiliate Site, including, without limitation, the development, operation or maintenance of your Affiliate Site or content contained therein; (d) any third party claim against you; or (e) any claim that you have breached a duty to, or otherwise wronged or harmed, any third party.

    14. Miscellaneous

    A. This Agreement will be governed by the laws of the United States and the State of North Carolina, without reference to its rules regarding choice of law. Any dispute relating to this Agreement which is not settled between the parties must be determined in an action brought in the federal or state courts located in Winston-Salem, North Carolina, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without Net Apparel's prior written consent. Subject to that restriction, this Agreement will be binding on and inure to the benefit of the parties and their respective permitted successors and assigns. Net Apparel’s waiver of your breach of this Agreement shall not be deemed a waiver of any other or subsequent breach.

    B. Nothing in this Agreement shall be construed to constitute either party as a partner, employee or agent of the other, and no employee or agent of either party shall be deemed to be the employee or agent of the other. Neither party shall have the authority to make any agreement or commitment, nor incur any liability on behalf of the other, nor be liable for any acts or omissions of the other, except as specifically provided herein.

    C. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Net Apparel may modify any of the terms and conditions (including without limitation terms and conditions related to commission rates and usage of the Licensed Materials or Net Apparel Marks) contained in this Agreement at any time in its sole discretion upon notice to you. You will be notified of any such changes by e-mail and a change notice will be posted on the Net Apparel Site. If you do not agree to the terms of such modification, you shall provide notice of termination to Net Apparel. Otherwise, your continued participation in the Affiliate Network following any such modification will constitute binding acceptance of the modification. You may not modify this Agreement.



    BY CLICKING THE “I ACCEPT” BUTTON BELOW, YOU ARE ENTERING INTO A BINDING LEGAL AGREEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ITS CONTENTS.



    3

    I look for the day, when every affiliate from every nation can climb to the mountain top and yell,
    'Free again, Free Again."

    Today is a national day of parasite free shopping.

  2. #2
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    And your point is????

    Mike & Charlie ...

    If they won't adopt and feed a bird ..flip them one! BBQ some Gator and remember to flush WhenU..

  3. #3
    notary sojac Herb ԿԬ's Avatar
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    I just read it quickly and said to myself: "self, that looks like normal to me" I do wish they'd obligate themselves a little more in the contract regarding parasite issues, etc.

    unless I missed it


    _____
    I earned something? Who screwed up?

  4. #4
    ABW Ambassador phillyburbs's Avatar
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    I'm with Mike & Charlie (and Herb) ... is there something that should jump off the page at me?

    Karl Smith
    phillyBurbs - Your Internet Starts Here
    ---------
    Beware Parasiteware! It is stealing your money!
    [What is Parasiteware? click here to learn more]

  5. #5
    Affiliate Manager Allen Nance's Avatar
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    January 18th, 2005
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    Colorado River, Bullhead City AZ
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    Basicly that they updated thier affiliate operating agreement to establish a program policy for search marketing efforts, coupon code use, and email marketing on their behalf.

    Kind of on point to various different topics blowing around on ABW at the moment.

    Other than that, Just trying to keep a turkey in suspense.

    Allen

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