Affiliate Agreements

eSellerate Agreement

This eSellerate Service Agreement for Affiliates (Agreement) is entered into on the above stated Effective Date by and between Mindvision, Inc. a Nebraska corporation doing business as eSellerate having an address of 5901 N. 58th Street, Lincoln, Nebraska 68507-3249 (hereinafter eSellerate) and the below identified company or individual at the stated address (hereinafter, Affiliate).

RECITALS

Whereas, eSellerate has developed and offers to Software Publishers and other e-commerce vendors (each a Publisher) an e-commerce sales and distribution solution/service (the eSellerate Service) to facilitate the online retail purchase and electronic distribution of Publisher Products to End Users;

Whereas, Affiliate operates the web site(s), subscription email(s), subscription newsletter(s) or CD bundles and distribution for the retail promotion, sale and electronic distribution of Publisher Products to End Users including Buy Now or Purchase First and Try and/or Buy enabled downloads (each hereunder an Authorized Affiliate Channel);

Whereas, Affiliate desires to offer for sale and electronic distribution Publisher Products to End Users via the Authorized Affiliate Channel;

Whereas, Affiliate has entered (or will enter) into an Affiliate Distribution Agreement whereby Publisher grants Affiliate the right to promote, sell and electronically distribute Publisher Products to End Users via the Authorized Affiliate Channel using the eSellerate Service;

NOW, THEREFORE, in consideration of the promises and agreements set forth herein, the parties do hereby agree as follows:

1. eSellerate's Obligations.

Subject to the term and conditions of this Agreement and a valid and concurrently existing eSellerate Distribution Agreement by and between eSellerate and the respective Publisher, eSellerate will provide to Affiliate (and Publisher) the eSellerate Service to facilitate the sale and electronic distribution of Publisher Product to End Users via Affiliates Authorized Affiliate Channel, as follows:

a. Real-time online access to the eSellerate Service for managing Publisher Product offerings via the Authorized Affiliate Channel.

b. Secure online End User product order (shopping cart) and credit card purchase capabilities.

c. End User credit card purchase transaction processing.

d. Electronic (only) fulfillment of Publisher Products to End Users. Physical fulfillment is Publisher responsibility.

e. Processing of transaction payments to Affiliate and Publisher via ACH, international ACH, or international wire transfer.

f. Providing Affiliate (and Publisher) online daily, weekly and monthly sales and distribution reports, and real-time reports of individual Publisher Product sales.(eSellerate provides standardized report formats only. End User personal identification information or other information not to be disclosed to Affiliate pursuant to either Publishers or eSellerates privacy policies then in effect or other non-disclosure obligation to a third party shall be honored).

g. End User technical support directly related to the eSellerate Service (online order, purchase and fulfillment of Publisher Products only) - eSellerate does not provide customer support regarding Affiliates Authorized
Affiliate Channel or Publisher Products.

h. Technical support to Affiliate will be provided during normal business hours (Monday - Friday, 9AM to 5PM Central Standard Time).

i. The eSellerate Service will be available and operational 24-hours, seven-days a week, three hundred and sixty-five days a year absent extraordinary circumstances and Force Majeure events.

2. Compensation.

a. In consideration of this Agreement, Commissions shall mean funds actually received by Affiliate for Product sales of Publishers Products via Authorized Affiliate Channel, less chargebacks and returns, other qualified debits, and payments to Publisher.

b. Affiliate will be compensated as follows: (a) for each sale that is made from the Authorized Affiliate Channel, Affiliate shall receive a Commission calculated as some percentage of the total sale of qualified and approved SKUs, which varies based up on the Product and/or Publisher at any given point in time. eSellerate shall remit payment once per month and will process in the second billing cycle following the sales transaction period and only when the account balance of Affiliate equals or exceeds total commissions of $100 after all applicable adjustments as described in 2f and throughout this Agreement. For the purpose of this Agreement, Transaction Period is defined as all qualified orders placed on or after the first day of any given month and prior to the first day of the following month. By way of example, Commissions earned from sales transactions in January are calculated as all orders placed from January 1st through January 31st and will be processed the first week of March if the Commissions owed is in excess of $100 after all applicable adjustments. eSellerate will remit payment by direct deposit via ACH, international ACH, or international wire transfer. Applicable fees will apply for payment remittance at the then current rates which may change from time to time without prior notice (currently ACH is no charge, International ACH is $5, and International Wire Transfer is $21). All payments are in $US only.

c. eSellerate shall have no obligation to make payment of any Commissions for which eSellerate has not received payment from the relevant Publisher for any reason. If eSellerate elects, in its own discretion, not to make payment to Affiliate for amounts not received from a Publisher, those amounts shall not be included in the minimum balance amount of $100 to qualify for payment in that billing cycle.

d. Affiliate may have a negative balance if Affiliate account is debited amounts equivalent to previous Commissions for Chargebacks, Returns or other qualified debits and Affiliate does not have an adequate Account balance to cover the debit amounts. Whenever Affiliate has a negative balance, Affiliate must immediately remit a payment to eSellerate in an amount sufficient to bring Account to a zero balance. Payment will be made via check, ACH, or wire transfer and will be made in $US. Affiliate Account will not reflect payment until the check has cleared or funds have been transferred to eSellerates bank account. Affiliate Account will not accrue interest. If Affiliate Account has a negative balance for any period of 45 days or more, the Account is subject to 1.5% interest per month, compounded monthly.

e. Affiliate Account may be terminated for non-payment. Affiliate accounts not earning Commissions for 6 concurrent months may be terminated and Commissions forfeited at the sole discretion of eSellerate.

f. Chargebacks, Returns and Other Qualified Debits. A Publisher may request that eSellerate, or eSellerate may on its own initiative, debit Affiliate Account with an amount equal to a Commission previously credited to Affiliate Account in circumstances of a product return; duplicate entry or other clear error; non-bona fide Transaction where there is no Affiliate failure to comply with this Agreement; or, with respect to a sale, non-receipt of payment from, or refund of payment to, the purchaser or end-user of the Publishers Product. eSellerate may apply debits at any time to Affiliate Account for non-bona fide Transactions in circumstances of Affiliates failure to comply with this Agreement to include all unpaid adjustments and debits created prior to the 1st of the previous month (Transaction Period for which payment is being remitted) regardless of when adjustment was incurred or requested and all unpaid return adjustments and debits for orders that were placed prior to the 1st of the previous month (Transaction Period for which payment is being remitted).

3. Affiliates Obligations.

a. Affiliate Duties. Affiliate is responsible for promoting the sales mechanism for Publisher via notices, banners and advertisements or other similar means on the Authorized Affiliate Channel. Affiliate shall also provide links to eSellerate for software sales that are graphically pleasing and encourage the user to purchase
Publishers Products on the Authorized Affiliate Channel. Affiliate shall promote the sales mechanism to users, encouraging them to purchase Publisher Products on the Authorized Affiliate Channel. Notwithstanding the foregoing, Affiliate retains the exclusive right to design and place notices, banners, and advertisements or other similar items on the Authorized Affiliate Channel. Affiliate also retains the exclusive right to include or remove promotions of Publishers Products at its sole discretion and at no time shall be obligated to maintain advertisements, links or other similar promotional mechanisms on the Authorized Affiliate Channel.

b. Efforts and Ability. Affiliate will use commercially reasonable efforts to maintain the ability to promote, sell and distribute Publishers Products and to promote Publishers Products via the eSellerate Service, at Affiliates sole expense and discretion.

1) Affiliate is obligated to maintain appropriate links enabling sales transactions on its Authorized Affiliate Channel. Appropriate links are provided by eSellerate via Affiliates successful login to the eSellerate Service. Any modification of these links may result in transactions not being successfully completed or credited to Affiliate and Affiliate bears complete responsibility in doing so and is not entitled to any Commissions as a result.

2) Affiliate shall in its sole discretion determine best way to promote sale of
Publisher Products from Authorized Affiliate Channel. Notwithstanding the previous sentence, Affiliate must promote such transactions and place links in manners that are unlikely to mislead and is reasonably likely to deliver successful transactions or purchases by the purchaser to the Publisher. Affiliate shall not cause transactions or purchases to be made that are not in good faith. Affiliate also retains the exclusive right to include or remove promotions of Publishers Products at its sole discretion and at no time shall be obligated to maintain advertisements, links or other similar promotional mechanisms on the Authorized Affiliate Channel.

3) Placement of eSellerate/Publisher links shall be done in a commercially reasonable manner and should not include placement in message boards, unsolicited email or any other types of spam or similar internet resources where it is inappropriate. Solicited email or other channels used to promote Publishers Product for the purpose of this agreement shall meet the terms and conditions of the eSellerate Privacy Policy. Promotion of Publisher Product will only involve Authorized Affiliate Channel(s) owned by Affiliate.

c. Representations. Affiliate shall make no representations or warranty regarding Publishers Products beyond those representations and warranties published by Publisher.

d. Intellectual Property Notices. Affiliate shall not remove, obliterate or alter any intellectual property notices or other proprietary rights notices of Publisher from Publishers Products.

e. eSellerate Service Account. Affiliate shall be responsible for establishing and maintaining Affiliates eSellerate Service account in accordance with the login, registration and account management procedures and tools provided via the eSellerate Service.

f. Affiliate shall keep secret any and all user names and passwords used by
Affiliate to access Affiliates eSellerate Service account and to disclose the user names and passwords only to those employees of Affiliate having a need to know them for the purpose of carrying out their employment responsibilities to Affiliate. Affiliate shall immediately notify eSellerate in the event Affiliate has reason to believe that a password has been disclosed to an unauthorized person.

g. Maintenance and Support of Authorized Affiliate Channel. Affiliate shall be solely responsible for maintaining and supporting Affiliates Authorized Affiliate Channel for the purposes of this Agreement.

4. Disablement Rights.

Affiliate retains the right and capability to disable any link for Publishers Products and SKUs offered for sale in its sole discretion, at anytime, and for any reason on the Authorized Affiliate Channel. The Parties acknowledge that a Publisher also retains rights and capabilities to disable any of Publishers Products and/or SKUs offered for sale on the Authorized Affiliate Channel at anytime and for any reason. Upon receipt of notification of any disablement by a Publisher, Affiliate will promptly eliminate all disabled links from the Authorized Affiliate Channel and agrees that it shall have no right to receive continued Commissions.

5. Grant and Reservation of Rights.

a. Sales, Marketing and Distribution License. Publisher hereby grants to Affiliate a non-exclusive, non-transferable, worldwide right and license to promote, sell and distribute electronic copies of Publishers Products (under Publishers end user license agreement) via the Authorized Affiliate Channel using the eSellerate service.

b. Demonstration License. Publisher grants Affiliate a non-exclusive, non-transferable, royalty-free right and license to publicly display, perform and demonstrate Publishers Products to prospective customers.

c. Trademark License. Publisher grants Affiliate a nonexclusive, non-transferable worldwide, royalty-free right and license to use Publishers trade name and trademarks (Publishers Marks) to market, sell and distribute Publishers Products, provided that Affiliate does not alter Publishers Marks in any way. All use of the Publishers Marks by Affiliate shall inure to the sole benefit of Publisher and Affiliate shall obtain no ownership rights in and to Publishers Marks.

d. Right of Refusal. Nothing herein shall require Affiliate to market, sell and/or distribute any or all of Publishers Products. Affiliate reserves the right to refuse to market, sell and/or distribute any of Publishers Products that Affiliate deems in its sole discretion to be inappropriate.

e. Sublicense. No right to sublicense is granted Affiliate hereunder.

f. Reversion of Rights. Upon termination of this Agreement for any reason, all
rights and license granted in this Section to Affiliate shall automatically revert to Publisher.

6. Limitation of Liability.

IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS) IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE FURNISHING, FUNCTIONING, USE, DISTRIBUTION OR MARKETING OF THE PUBLISHERS PRODUCTS OR THE OPERATION OF THE AUTHORIZED AFFILIATE CHANNEL OR ANY RELATED ITEM OR SERVICE PROVIDED UNDER THIS AGREEMENT.

7. Term and Termination.

This Agreement shall commence on the Effective Date and shall continue for a period of one (1) year (the Initial Term) unless and until terminated as set forth below:

a. Renewal. This Agreement will be automatically renewed for successive one (1) year terms (each a Renewal Term) unless earlier terminated.

b. Termination. Either party may terminate this Agreement for no cause stated upon written notice prior to the expiration of the Initial Term or any Renewal Term.

c. Payment Obligation. The termination of this Agreement shall not affect a party's obligations under this agreement to make any payments due and owing to the other party prior to the termination of this Agreement.

d. End User Rights. Termination of this Agreement shall not affect the rights of any end user properly licensed under the terms of Publishers end user license agreement.

8. Proprietary Rights.

Affiliate acknowledges and agrees that eSellerate owns all rights, title and interest in and to the eSellerate Service and all proprietary property rights thereto including trade names, domain names and trademarks and nothing herein shall be deemed or construed to transfer any such rights, in whole or part, to Affiliate.

9. Warranties and Indemnification.

a. Warranties

1) General Warranties. Each party warrants that it has the authority and all rights, licenses, agreements and permissions necessary to enter into this Agreement and perform its obligations hereunder without conflict with any preexisting obligation or agreement.

2) Warranties by Affiliate. Affiliate warrants that the Authorized Affiliate Channel will not be intentionally used to communicate any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept, or expropriate any system data or personal information. Affiliate further warrants to the best of its knowledge that Affiliates Authorized Affiliate Channel does not infringe any patent, copyright, trade secret, or other third party proprietary right.

b. Indemnification.

1) Affiliate shall indemnify and hold harmless eSellerate against any and all
liability, suits, claims, losses, damages and judgments, and shall pay all costs (including reasonable attorney's fees and litigation expenses) and damages to the extent that such liability, costs or damages arise from a claim that the Affiliates Authorized Affiliate Channel infringes any patent, trademark, copyright, trade secret, or any other third party proprietary right. Affiliates obligations under this section are conditioned upon it being given prompt written notice of each such claim received in writing by eSellerate.

2) eSellerate shall indemnify and hold harmless Affiliate against any and all liability, suits, claims, losses, damages and judgments, and shall pay all costs (including reasonable attorney's fees) and damages to the extent that such liability, costs or damages arise from a claim that the eSellerate Service infringes any patent, trademark, copyright, trade secret, or other third party proprietary right. eSellerates obligations under this section are conditioned upon it being given prompt written notice of each such claim received in writing by Affiliate.

10. General Provisions

a. Relationship. The relationship of the parties is that of independent contractors and nothing contained herein shall be deemed an employment relationship, agency, joint venture or partnership.

b. Amendment / Waiver. No amendment to or waiver of any provision of this Agreement shall be effective unless made in writing and signed by both Parties.

c. Survival. The indemnification, proprietary rights, payment, and limitation of liability obligations set forth herein shall survive the termination of this Agreement.

d. Governing Law. The laws of the State of Nebraska shall govern this Agreement, without resort to its conflicts of law provisions. Any litigation or other dispute resolution between the Parties relating to this Agreement or its construction shall take place in a court of competent jurisdiction in the State of Nebraska. The Parties consent to the personal jurisdiction of, and venue in, the court as specified, above. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

e. Severability. If a court of competent jurisdiction holds any term or provision of this Agreement invalid or unenforceable, such invalidity shall not affect the validity or operation of any other term or provision and such invalid term or provision shall be deemed to be severed from this Agreement.

f. Attorneys Fees. The prevailing Party (as determined by the finder of fact) in any suit or other dispute resolution proceeding to enforce or interpret any part of this Agreement shall be entitled to recover, as a cost of suit, reasonable attorneys fees as determined by the finder of fact (including, but not limited to, costs, expenses and fees on any appeal).

g. Assignment. Neither Party may assign or transfer this Agreement, or sublicense, assign or delegate any right or duty hereunder, without the prior written consent of the other and each effected Publisher and the acceptance of the assigning Partys obligations under this Agreement by the assignee. The provisions of this Agreement shall be binding on and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and permitted assigns.

h. Force Majeure . It is understood and agreed that in the event a Party is prevented from performing its obligations under this Agreement as a result of an act or event beyond the Partys reasonable control (including but not limited to an act of the government, an act of war or terrorism, a natural disaster, a fire, a flood, or labor unrest), then such non-performance shall not be considered as grounds for breach of this Agreement and such non-performance shall be excused while the condition exists and for a reasonably period thereafter but not exceeding forty-five (days).

i. Legal Effect. A printed version of this Agreement and any notice given in electronic form related hereto shall be admissible in judicial and/or administrative proceedings and given the same effect as an original printed version.

j. Counterparts/Facsimiles. This Agreement may be executed in electronic form and any number of counterparts, each of which when executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument. For the purposes hereof, any facsimile copy of this Agreement including the signature pages bearing the Parties signatures shall be deemed an original.

k. Integration. This Agreement sets forth the entire understanding of the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements, understandings and negotiations with respect to the subject matter hereof.

l. Notices. All notices required by this Agreement may be personally delivered or sent to the other Party by e-mail or by registered mail to the address below or to any other address the Party may designate in a written notice as required herein. Any such notice shall be deemed received on the date upon which it was delivered personally, on the next business day if e-mailed and receipt confirmed by the recipient, or on the fifth business day following the mailing by registered mail. A courtesy copy of each required notice sent hereunder shall be provided to any affected Publisher.

m. All monetary amounts referred to in this Agreement are in United States dollars.

IN WITNESS WHEREOF, the parties hereto have caused to be affixed by a duly authorized representative his or her signature on the date indicated. By clicking on the "I accept" button you affirmatively agree and intend to be legally bound to the terms and conditions of this electronic agreement and this act shall constitute your signature to this contract.

Alpha ZIP Agreement

ALPHA ZIP AFFILIATE CONDITIONS

THIS IS A CONTRACT. PLEASE READ IT CAREFULLY. BY INDICATING YOUR ACCEPTANCE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.

This agreement extends the eSellerate Service Agreement for Affiliates. When accepting the Alpha ZIP affiliate conditions, you also accept the eSellerate Service Agreement for Affiliates, and recognize to have received a copy of these conditions.

1. UNSOLLICITED EMAIL

You are under no circumstances allowed to send unsolicited email that contains any reference to Alpha ZIP, the name Alpha ZIP, graphics that refer to Alpha ZIP, Alpha ZIP internet addresses (URLs, email addresses, and the like) or any other information that refers to Alpha ZIP, Whirling Dervishes Software and/or Neobyte Solutions.
This restriction only applies to unsolicited email. You are allowed to send all materials listed above in any emails sent to existing customers, to persons who have indicated they wished to receive such emails, or to company email addresses.

2. USE OF GRAPHICS

a. To give the public a consistent image of Alpha ZIP, you are advised to use only graphics that were provided by Whirling Dervishes - Neobyte Solutions.
b. If you wish to use other graphics, you have to ask for approval. Send the graphics to affiliates@alphazip.com and use only after you receive an approval.
c. This restriction applies to all graphics that refer directly to Alpha ZIP (screenshots, box shots, icons, banners, and the like) used in email correspondence, on web sites or in any printed materials.

3. LIMITATION OF LIABILITY

IN NO EVENT SHALL WHIRLING DERVISHES - NEOBYTE SOLUTIONS BE LIABLE TO THE AFFILIATE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS) IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT.

4. INDEMNIFICATION

a. Affiliate shall indemnify and hold harmless Whirling Dervishes - Neobyte Solutions against any and all
liability, suits, claims, losses, damages and judgments, and shall pay all costs (including reasonable attorney's fees and litigation expenses) and damages to the extent that such liability, costs or damages arise from a claim that the Affiliates Authorized Affiliate Channel infringes any patent, trademark, copyright, trade secret, or any other third party proprietary right. Affiliates obligations under this section are conditioned upon it being given prompt written notice of each such claim received in writing by Whirling Dervishes - Neobyte Solutions.

b. Whirling Dervishes - Neobyte Solutions shall indemnify and hold harmless Affiliate against any and all liability, suits, claims, losses, damages and judgments, and shall pay all costs (including reasonable attorney's fees) and damages to the extent that such liability, costs or damages arise from a claim that the Whirling Dervishes - Neobyte Solutions products or services infringe any patent, trademark, copyright, trade secret, or other third party proprietary right. Whirling Dervishes - Neobyte Solutions obligations under this section are conditioned upon it being given prompt written notice of each such claim received in writing by Affiliate.

5. TERMINATION
This Agreement shall commence on the Effective Date and shall continue for a period of one (1) year (the Initial Term) unless and until terminated as set forth below:
a. Renewal. This Agreement will be automatically renewed for successive one (1) year terms (each a Renewal Term) unless earlier terminated.
b. Termination. Either party may terminate this Agreement for no cause stated upon written notice prior to the expiration of the Initial Term or any Renewal Term.
c. This agreement is terminated immediately when ever the eSellerate Service Agreement for Affiliates is terminated.
d. In case the affiliate breaks the conditions of this agreement, Whirling Dervishes - Neobyte Solutions has the right to terminate the agreement immediately.

6. MISCELLANEOUS
Whirling Dervishes - Neobyte Solutions can change the Affiliate Condition at any time. In such case, the affiliate will be notified 1 month in advance and has the right to terminate this agreement.
This Agreement is governed by the laws of Belgium. Any action or proceeding brought by anyone arising out of or related to these conditions shall be brought only in a court of competent jurisdiction located in Kortrijk, Belgium, and the parties hereby consent to the jurisdiction and venue of said court. This Agreement supersedes any other communications with respect to the Software. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of Whirling Dervishes - NeoByte Solutions. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by Whirling Dervishes - NeoByte Solutions or a duly authorized representative of Whirling Dervishes - NeoByte Solutions. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. The parties confirm that it is their wish that this Agreement has been written in the English language only.

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