Affiliate Agreement

Seth Turin Media, Inc.

WEBSITE AFFILIATE AGREEMENT
THIS AGREEMENT (the “Agreement) is made as of the 01 day of May, 2012, by and between Seth Turin Media Incorporated, a Colorado Corporation (the “Company”), and You, the Affiliate and private contractor of Seth Turin Media Inc. (the “Affiliate,” and collectively, the “Parties”).
WHEREAS Affiliate wishes to include certain materials promoting Company, and to include a link to Company’s website within those materials on Affiliate’s website;
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
1. Promotional Materials. Company shall make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate website (the “Promotional Materials”). Affiliate shall display the Promotional Materials on Affiliate’s website prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Materials to Company’s website, as specified by Company.
2.      Use of Promotional Materials. The Affiliate’s use and display of the Promotional Materials on the Affiliate’s site shall conform to the following terms, conditions and specifications:
a.      Affiliate may not use any graphic, textual or other materials to promote Company’s website, UBot Studio products or services other than the Promotional Materials without first obtaining prior written permission and approval from the Company.
b. Affiliate may only use the Promotional Materials for the purpose of promoting Company’s website (and UBot Studio products – Developer, Standard and Professional versions – and other such products and services as may become available thereon), and for linking to Company’s website.
c. The Promotional Materials will be used to link only to Company’s website, to the specific page and URL address as specified by Company.
d. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from Company for such alteration of modification.
3.      License. Subject to the terms and conditions of this Agreement, Company grants Affiliate a non-transferable, non-assignable license, without right to sublicense, to market, promote, use of the Company’s trademark, service mark and logo solely for its performance under this Agreement. Affiliate’s customers will place their orders directly with Company in writing or electronically. Affiliate shall not make any representation or warranty regarding the Services to any third party other than that authorized in writing by Company.   All intellectual property rights, other than those expressly granted under this Agreement, that relate to the Service shall remain with Seth Turin Media, Inc.
Affiliate’s rights to utilize the Company’s promotional materials shall not be exclusive unless otherwise agreed in writing.
4.      Intellectual Property. Company retains all right, ownership, and interest in the Promotional Materials, and in any copyright, trademark, servicemark or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License, as set forth in Section 3.
5.      Relationship of Parties. This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between Company and Affiliate. Affiliate shall provide services for Company as an independent contractor. Affiliate shall have no authority to bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company in any respect.
6.      Commissions.
a.      In exchange for Affiliate’s display of the Promotional Materials, and for Affiliate’s compliance with and performance of the terms and conditions of this Agreement, Company shall pay to Affiliate a commission (the “Commission”) in the percent rate of (Check any that apply):

Monthly Sales Volume Commission Earned
Less Than 5 Sales 20% Per Sale
Between 5 and 25 31% Per Sale
Between 26 and 75 41% Per Sale
Between 76 and 100 51% Per Sale
More Than 100 61% Per Sale

Per individual Professional, Developer or Standard license (Upgrades are excluded from commissions) sold to a user that accesses Company’s website through a link on Affiliate’s website.
b. Company shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate. Affiliate shall be given reasonable access to these records upon request. Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods shall be rectified by Company within 14 days upon written notice to Company of the discrepancy.
c. For the purposes of this Agreement, a “Bona Fide Click-Through” shall be defined as any successful attempt by a visitor of Affiliate’s website to click on the link within the Promotional Materials on Affiliate’s website and to visit Company’s website. Company shall have sole discretion to determine whether any particular click-through or class of click-throughs shall qualify as Bona Fide Click-Throughs. Affiliate shall not attempt to: (i) artificially attempt to generate click-throughs to Company’s website by use of deception or misrepresentation; (ii) manipulate, incentivize, or otherwise encourage Affiliate’s employees, agents, customers, or other persons to click the link to the Company’s website for any purpose other than the promotion of the services and/or UBot Studio products offered through Company’s website; or (iii) create or employ any mechanism designed to artificially or automatically generate click-throughs to Company’s website.
d. Company shall pay all Commissions accrued and payable to Affiliate on or about the 15th day of each month (the “Commission Payment Date”). Commissions are “accrued and payable” once the individual Affiliate’s accumulated commissions exceed a $100.00 minimum threshold. Commissions earned by Affiliate which have not accumulated to the minimum threshold of $100.00 will be held in the Affiliate’s account until such time as the minimum threshold is met. Once Affiliate has accrued over $100.00 in commissions in their account, Seth Turin Media, Inc. will pay the entire commission amount on or about the 15th day of the following month.
e. In the event that Affiliate materially breaches this Agreement and Company terminates this Agreement within 30 days of such breach, then any accrued and payable Commissions owed to Affiliate shall be forfeited, and Company shall not be obligated to pay such Commissions to Affiliate.
7.      Affiliate’s Duties, Representations and Warranties.
Affiliate represents and warrants the following:
a.      Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.
b.      In carrying out this Agreement, Affiliate will conduct itself in an ethical, professional and lawful manner, will exercise its best efforts to achieve a high level of customer satisfaction, and will refrain from doing anything to impair the reputation of Seth Turin Media, Inc.
c.      Affiliate’s website does not contain any materials that are:
i.          Sexually explicit, obscene, or pornographic;
ii.          Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
iii.          Graphically violent, including any violent video game images; or
iv.          Solicitous of any unlawful behavior
d.      Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s website. Nothing on Affiliate’s website will infringe upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.
e.      Affiliate will not use the Promotional Materials in any manner other than those set forth in Section 2 above.
f.       Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
g.      Affiliate shall be solely responsible for all website content created and managed by Affiliate. The Affiliate agrees not to use the Company’s promotional materials (i) in conjunction with or to engage in the transmission of unsolicited email or SPAM; (ii) in a manner that violates the legal copyright, trademark, or other intellectual property rights of any other party; (iii) in a manner that violates any applicable law or regulation; (iv) to deliver content that is deemed at Seth Turin Media Inc.’s sole discretion to be indecent, harassing, obscene or unlawful. Seth Turin Media, Inc. reserves the right to take any action it deems necessary with respect to such usage at any time and without notice.
h.     Affiliate will not publish or otherwise distribute any advertising materials for Affiliate’s website that references Company or Company’s website without prior written consent form the Company for the distribution of such materials. Affiliate will not use Company’s name (or any name that is confusingly similar to Company’s name) for any purpose on its website, in its promotional materials, or in any other context except to promote Company’s website as specified in this Agreement. Affiliate will not register any domain name that incorporates Company’s name, or that is confusingly similar to Company’s name.
8.      Indemnification. Affiliate will take all reasonable measures to preclude Seth Turin Media, Inc. and its Directors, Officers and assigns from being made a party to any lawsuit or claim regarding the Company’s Promotional materials provided to Affiliate. Affiliate hereby agrees to defend, indemnify and hold harmless Seth Turin Media, Inc. and its Directors, Officers and assigns from any and all claims of whatever nature brought by any of Affiliate’s customers against Seth Turin Media, Inc. arising from Affiliate’s breach of this Agreement or any misconduct or wrongful omission of the Affiliate.
9.      Confidentiality. Affiliate acknowledges that by reason of its relationship with Seth Turin Media, Inc. hereunder, it may have access to certain information and materials relating to Company’s business, suppliers, customers, personnel, technology, and marketing strategies that is confidential and of substantial value to Company (collectively, “Confidential Information”).
Affiliate agrees that it will not use in any way for its own benefit (other than to perform under this Agreement) or for the benefit of any third party, nor will Affiliate disclose to any third party any Confidential Information. A further agrees that it will return to Company or destroy all copies of Confidential Information under its custody or control upon request by Company or termination of this Agreement. The provisions of this section shall survive the termination of the Agreement for any reason. Upon any breach or threatened breach of this section, Seth Turin Media, Inc. shall be entitled to injunctive relief in addition to other remedies, which injunctive relief shall not be contested by Affiliate. In the event Company, in its sole discretion, determines that it would be difficult to prove actual damages caused by any breach of this confidentiality provision, the parties agree that if Seth Turin Media, Inc. proves a violation of this confidentiality provision, it shall be entitled to liquidated damages in the amount of $10,000.00, in addition to any other relief to which it is entitled.
10.   Term.

    • This Agreement shall take effect on the effective date, and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section 10.
    • Either Party shall have the right to terminate this Agreement at any time and for any cause. The terminating Party must give written notice to the other Party at least 30 days prior to the intended date of termination.

11.   Taxes. Company shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Affiliate.
12.   Limitation of Liability. Company shall not be liable for any direct, indirect, special, incidental, exemplary or consequential damages, including but not limited to, loss of business, loss of profit, loss or damage resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials by Affiliate, or other performance of services under this Agreement.
13.   Non-assignability. Affiliate’s rights and obligations under this agreement may not be transferred or assigned directly or indirectly without the prior written consent of Company.
14.   Changes to Terms and Conditions. The Company reserves the right to change and amend the terms and conditions of this agreement as necessary. Use of our servers by you after said changes constitutes acceptance of those new terms and conditions. If you do not agree to the new terms and conditions, you may terminate this agreement as set forth previously in this agreement.
15.   General Provisions

    • Governing Law; Counterparts. This Agreement will be governed and construed in accordance with the laws of the State of Colorado, irrespective of its conflict of laws provisions. This Agreement may be executed in counterparts. Delivery of an executed counterpart hereof by facsimile or other electronic means shall be equally effective as delivery of a manually executed counterpart.
    • Jurisdiction / Venue / Waiver of Jury / Notice Requirement / Mediation. Affiliate agrees that the exclusive venue for any action arising out of this Agreement shall be Boulder, Colorado. Affiliate hereby consents to personal jurisdiction in the State of CO and waives any rights it may otherwise have to contest the assertion of jurisdiction over it in any other state. In any such action the parties waive trial by jury. Prior to filing any suit against Seth Turin Media, Inc, Affiliate must provide 30 days written notice to Company setting forth in detail the basis for Affiliate’s claim. If the Affiliate’s claim is not resolved within 30 days after Affiliate provides this notice, the parties agree that before Affiliate files suit, the parties will participate in non-binding mediation, with each party to pay 1/2 of the costs of the mediation.  The mediation session may not exceed eight hours, except by agreement of the parties.  Unless the parties agree otherwise in writing, any such mediation shall take place in Boulder County, Colorado.  The mediator shall be a lawyer licensed to practice law in Colorado.  If the parties cannot agree on a mediator, they agree that Alison Kilmer shall appoint the mediator and they release her from any liability in connection with said appointment
    • Entire Agreement. This Agreement sets forth the entire understanding and agreement of the parties as to the subject matter of this Agreement, and all prior discussions are merged into this Agreement. It may not be changed or modified orally but only by a written agreement signed by both parties. The terms of this Agreement will govern all duties undertaken by Seth Turin Media, Inc. and Affiliate.
    • Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the Court shall modify such provision for the benefit of the protected party to the maximum extent allowed by law, but in any event the remaining provisions will continue in full force without being impaired or invalidated in any way.
    • Headings. Titles or heading to section of this Agreement are not part of the terms of this Agreement, but are inserted solely for convenience.
    • Interpretation. Should any provision of this Agreement require judicial interpretation, the Court shall not apply a presumption that the term shall be more strictly construed against one party or the other by reason of the rule of construction that a document is to be construed more strictly against the party who prepared the it.
    • Notices. All notices, requests and other communications under this Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and returned receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given, or sent by facsimile transmission, or sent by an email confirmed and accepted by the other party. If mailed, any such notice will be considered to have been given three (3) business days after it was mailed, as evidenced by the postmark. If delivered by hand, any such notice will be considered to have been given when received by the party to whom notice is given, as evidenced by a written and dated receipt of the receiving party. If sent by facsimile transmission such notice will be considered to have been given when received and a telephonic confirmation of such receipt is given by the receiving party. Notices may also be sent by email. Email notices must be confirmed and accepted by the other party via a return email in order to be considered effective notice hereunder. The address for notice to either party will be the address shown on the signature page of this Agreement. Either party may change its mailing address by notice as provided by this section.
    • Reading; Review of Counsel. The parties represent that they have carefully read every provision of this Agreement, and that they have had the opportunity to have qualified counsel review this Agreement
    • Legal Fees: If any proceeding arises between the parties with respect to a dispute involving the terms in this Agreement, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceedings, in addition to any other relief it may be awarded.

IN WITNESS WHEREOF, the parties hereby accept and agree to be bound by the term of this Agreement as of the Effective Date.