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A. WHEREAS getAbstract Ltd., Alpenquai 12/14, CH-6005 Lucerne, Switzerland, ("getAbstract") is a provider of business book summaries ("Abstracts"), such Abstracts being offered on www.getAbstract.com and forwarded to subscribers of the KnowledgePass™ via e-mail; and
B. WHEREAS the KnowledgePass™ allows unlimited downloading of all Abstracts from the entire getAbstract database for a specified period; in addition, the KnowledgePass™ also includes a push service, where the subscriber receives an e-mail with an Abstract attached, according to his personal interests profile; and
C. WHEREAS the Affiliate is interested in providing its visitors with the option to subscribe to the KnowledgePass™ offered by getAbstract; and
D. WHEREAS getAbstract is willing to share the revenues derived from visitors of the Affiliate accessing the Abstract database through the Web site of the Affiliate (the "Affiliate Web site") and, therefore, to enter into an affiliate agreement with the Affiliate (the "Agreement").
Based on the above, the parties agree as follows:
1. Display of getAbstract marketing material
1.1 getAbstract hereby grants to the Affiliate a worldwide, nonexclusive, nontransferable license to display marketing materials and banner ads on the Affiliate Web site. The marketing materials and banner ads are specified on getAbstract's Web site at:
2. Obligations of the Affiliate
2.1 The Affiliate will ensure that whenever the getAbstract marketing material is displayed on its Web site to its visitors, any visitor to the Affiliate can access getAbstract's Web page free of charge. To this respect, getAbstract hereby grants to the Affiliate a worldwide, nonexclusive, nontransferable license to use the getAbstract logo solely in connection with the promotion of the services of getAbstract as described herein. In each case where the getAbstract logo appears, appropriate notices shall indicate that such logo is the trademark of getAbstract and that it is used under license from getAbstract.
2.2 The Affiliate shall fully and promptly comply in the case that getAbstract should ask the Affiliate – for whatever reason – to remove any marketing material from its own Web site. 3. Representations and warranties of getAbstract
3.1 getAbstract represents and warrants that it is using commercially reasonable efforts to ensure the functionality of its Web site and that no fewer than 300 Abstracts in the English language shall be downloadable from its database.
3.2 getAbstract further represents and warrants that it has used commercially reasonable efforts to ensure that (i) it owns the copyright to all the Abstracts in its database and that (ii) it is acting with the consent of the publishers of the books from which it produces the Abstracts. However, the Affiliate acknowledges that – from time to time – getAbstract may be obliged by a publisher, an author or an agent to remove an Abstract from its database (for example, due to the expiration of a contract with a publisher or for other reasons) and that, in such case, the Affiliate must fully and promptly comply with a request by getAbstract to remove the corresponding marketing material from its Web site.
4. Acknowledgements of the Affiliate
4.1 getAbstract is, and shall be at all times, the sole owner of the Abstracts and marketing material, including, without limitation, all rights, titles and interest relating to intellectual property therein. The Affiliate shall not modify marketing material without the written approval of getAbstract.
4.2 All material used by the Affiliate to display and transmit information about, to market and to otherwise promote getAbstract's products and services, and all uses of trademarks, service marks, logos and other distinctive brand features of getAbstract as well as any descriptive or illustrative material is subject to getAbstract's prior approval.
4.3 The Affiliate furthermore acknowledges that neither it nor any of its visitors gain any ownership interest in any part of the Abstracts because of their use on, or in conjunction with, the Affiliate's Web site, nor because of the Affiliate's or its visitors' participation in enhancements or modifications thereof, a subscription to the KnowledgePass™, the payment of any fees, or on any other basis. All rights to the Abstracts not specifically granted under this Agreement are reserved to getAbstract. getAbstract shall retain all rights to the Abstracts, in any and all formats, following expiration of the term hereof.
5. Technical aspects regarding the downloading of abstracts
5.1 getAbstract will ensure that all Abstracts are available in Adobe PDF format, and that most (i.e., at least 60%) of the Abstracts are also available in the Palm OS doc format.
5.2 getAbstract will provide the Affiliate with a dedicated URL to order a KnowledgePass™ (see Appendix 1).
5.3 getAbstract provides an online Web Interface that displays sales traffic generated by the Affiliate. The interface shows all sales of KnowledgePasses™. The online information is updated once a day. The Affiliate will receive a username and password to access the interface.
6. Revenue sharing and credit card verification
6.1 In the case that a visitor of the Affiliate clicks through to www.getAbstract.com and subsequently subscribes to a KnowledgePass™ or downloads an Abstract, the Affiliate shall be entitled to a 20% commission of the Net Receipts. "Net Receipts" means the amount debited from the customer's credit card, minus the credit card commission and the applicable sales taxes, if any.
6.2 If Net Receipts are more than $100 during a three-month period, getAbstract shall provide the Affiliate with a written statement every three months showing the Net Receipts derived from the sale of KnowledgePasses™ during the previous three months and shall pay into the bank account of the Affiliate the amount owed to the Affiliate (calculated according to Section 6.1 heretofore) not later than 30 days after the aforementioned Net Receipts statement has been produced.
7. Term and termination of the Agreement
7.1 The term of this Agreement will be a period of one (1) year from the effective date, and shall be renewed automatically for one-year periods thereafter, unless terminated as set forth below. Either party may terminate this agreement for any reason and at any time by one month's written notice.
7.2 The Affiliate shall, upon the expiration or termination of this Agreement for any reason, forthwith cease to use or distribute getAbstract marketing material and deliver to getAbstract any and all Abstracts or parts thereof, including copies thereof, be they in electronic format or otherwise, in the Affiliate's possession or under its control, and, upon request of getAbstract, within 15 business days of such expiration or termination deliver to getAbstract an affidavit stating that all materials required to be delivered under this Section 7.2 have been delivered and all electronic copies that have not been delivered have been deleted.
8. No liability
getAbstract shall in no way be held liable for any damages arising out of or in connection with this Agreement, even if it has been advised of the possibility of such damages.
9. Entire Agreement
This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes any prior agreement between the parties. No change, termination or attempted waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom the same is sought to be enforced.
10. Successors and assigns/non-assignability
10.1 This Agreement shall be binding upon and shall inure to the benefit of the respective successors and assigns of the parties hereto.
10.2 The parties furthermore agree not to assign any rights or obligations under this Agreement to any third party without the prior written consent of the other party.
11. Governing law and jurisdiction All matters concerning the validity and interpretation of and performance under this Agreement shall be governed by the material laws of Switzerland. Each of the parties hereto consents to the exclusive jurisdiction of the courts of Lucerne/Switzerland.
12. Severability In the event that one or more provisions of the Agreement shall be null and void or impracticable in whole or in part, the other provisions of the Agreement shall remain in full force and effect. A provision that is null and void or impracticable shall be replaced by an effective or a practicable provision, reflecting the parties' mutual legal and economic intent.