Master Linking
Agreement
This Agreement ("Agreement") is by and between Kaplan, Inc.
("Kaplan") with offices at 888 Seventh Avenue, New York, NY
10106, and [insert affiliate name] ("Affiliate")
WHEREAS, Kaplan operates KAPTEST.com (the "Kaplan Site"), a
freely accessible web site, currently located at www.kaptest.com,
on which Kaplan, through KAPTEST.com, makes available various
products and services, information about KAPTEST.com and its
products and services and other related information;
WHEREAS, Kaplan and Affiliate are each enrolled in The
LinkShare Network(tm); and
WHEREAS, Kaplan and Affiliate each desire to establish the
general terms and conditions which shall govern advertising and
commission arrangements between Kaplan and Affiliate which result
from their participation in The LinkShare Network(tm).
NOW THEREFORE, in consideration for the foregoing and the
mutual covenants, representations and warranties made herein, and
for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties agree
as follows:
1. Offers and
Engagements.
1.1. From time to time, Kaplan may post on The LinkShare
Network(tm) offers to pay to other participants a specified
commission in return for certain advertising services leading to
a Qualifying Link (as defined in Section 3.2 below). If such
offers receive an identification number from The LinkShare
Network(tm) they shall be deemed to be an "Offer" for purposes of
this Agreement. The term "Offer" shall also include any
counter-offers resulting from an Offer.
1.2. If an Offer made by one party is accepted by the other
party in accordance with the Offer's terms via The LinkShare
Network(tm), an "Engagement" will have been formed. Each
Engagement shall have the same identification number as the
original Offer that lead 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 the terms of this Agreement, the terms of the
Engagement shall govern.
1.3. At any time prior to Affiliate providing a Qualifying
Link, Kaplan may with or without notice and at any time after
Affiliate providing a Qualifying Link, Kaplan may, with five (5)
days 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 Kaplan for an Offer or an
Engagement. Affiliate shall promptly implement any request from
Kaplan to remove, alter or modify any graphic or banner ad
submitted by Kaplan that is being used by Affiliate as part of an
Engagement.
2. Affiliate's
Responsibilities.
2.1. Affiliate shall link its site (the "Affiliate Site") to
areas within the Kaplan Site using those URLs specified in the
Engagement (the "Required URLs"). Affiliate may post as many
links to the Required URLs and the rest of the Kaplan Site as it
likes on the Affiliate Site. The position, prominence and nature
of links on the Affiliate Site shall comply with any requirements
specified in the Engagement. Kaplan may request that Affiliate
remove links to the Kaplan Site and Affiliate will promptly
comply with such request.
2.2. Affiliate shall not make any representations, warranties
or other statements concerning Kaplan, the Kaplan Site, any of
Kaplan's products or services, or the policies of the Kaplan
Site, except as expressly authorized by the Engagement.
2.3. Affiliates shall not bid on or purchase the words
"Kaplan" "Kaptest" or any other Kaplan trademarks, either alone
or in combination with any other words or phrases, as keywords
for search engines, including but not limited to the search
engines employed by Yahoo, Lycos and Google. Affiliates must
identify themselves with the term "affiliate" within the text of
any search engine listings promoting Kaplan Test Prep and
Admissions products. Affiliates shall not in any way represent
themselves, either in advertising, metatags or in keywords for
search engines as endorsed by or related to Kaplan.
2.4. Affiliates shall not include the words "Kaplan,"
"Kaptest" or any other Kaplan trademarks, either alone or in
combination with any other words or phrases in the affiliate
website domain or sub-domain name.
2.5 Affiliate shall
promptly notify Kaplan and The LinkShare Network(tm) of any
malfunctioning of the Required URLs or other problems with
Affiliate�s participation in the Engagement. Kaplan will use
reasonable efforts to respond to all concerns upon notification
by Affiliate. Kaplan will have no liability to Affiliate for any
malfunctioning of the Required URL's.
3. Commissions.
3.1. Kaplan agrees to pay Affiliate the commission specified in
the Engagement if Kaplan sells to a visitor to the Kaplan Site (a
"Customer") a product or service that is the subject of the
Engagement and if that Customer has accessed the Kaplan Site and
purchased the product or service via a Qualifying Link. So long
as Affiliate is owed at least $25 in commissions per month,
commissions shall be paid based on calendar month within 30 days
of the end of each month. If Affiliate is owed an amount less
than $25 in commissions in any given month, then Kaplan shall not
be required to make such monthly payment and any commission owed
to Affiliate shall be carried over into the following quarter.
Kaplan shall be required to make the payment of all accrued and
unpaid commissions to Affiliate in the first subsequent quarter
in which the aggregate referral fees owed (including those that
have been carried over) is at least $25.
3.2. Payments to Affiliate shall be based upon Kaplan's
calculations of amounts owed. Affiliate is only eligible to earn
commissions on sales completed during the term of this Agreement.
Commissions earned through the date of termination will be
payable only if the related purchases are not cancelled or
returned. Kaplan may withhold Affiliate's final payment for a
reasonable time to ensure that the correct amount is paid. 3.3. A
"Qualifying Link" is a link from the Affiliate Site to the Kaplan
Site using one of the Required URLs or any other URL provided by
Kaplan for use in The LinkShare Network(tm) if it is the last
link to the Kaplan Site that the Customer uses during a Session
(as defined below) where a sale of a product or a service to
Customer occurs. A "Session" is the period of time beginning from
a Customer's initial contact with the Kaplan Site via a link from
the Affiliate Site and terminating when the Customer either
returns to the Kaplan Site via a link from a site other than the
Affiliate Site or the Engagement expires or is terminated.
3.4. Kaplan shall have the sole right and responsibility for
processing all product and service orders made by customers.
Affiliate acknowledges that all agreements relating to sales to
Customers shall be between Kaplan and the Customer.
3.5. All determinations of Qualifying Links and whether a
commission is payable will be made by The LinkShare Network(tm)
and will be final and binding on both Kaplan and Affiliate.
Prices for the products will be set solely by Kaplan in its
discretion.
3.6. Notwithstanding Section 5.2 hereof, in the event Kaplan,
in its sole discretion, determines that there is fraud or other
unlawful conduct by Affiliate or by any third party with respect
to Customers accessing the Kaplan Site through links on the
Affiliate Site and subsequent purchases by such Customers, then
Kaplan shall be entitled to suspend or deny payments with respect
to purchases by such Customers in whole or in part and to
terminate this Agreement immediately with no further liability to
Affiliate.
4. Ownership and
Licenses.
4.1. Each party owns and shall retain all right, 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. Kaplan grants Affiliate 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 LinkShare Network(tm), on the
Affiliate Site solely for the purpose of creating links from the
Affiliate Site to the Kaplan Site during Engagements. Except as
expressly set forth in this Agreement or permitted by applicable
law, Affiliate may not copy, distribute, modify, reverse
engineer, or create derivative works from the same. Affiliate 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. Affiliate grants Kaplan a non-exclusive, worldwide,
royalty-free license to use, reproduce and transmit any graphic
or banner ad submitted by Affiliate solely for co-branding
purposes or as a return link from the Kaplan Site to the
Affiliate Site. Kaplan will remove such graphic or banner ad upon
Affiliate's request.
5. Termination.
5.1. Either party may terminate any Engagement at any time by
deleting their acceptance of the Engagement through The LinkShare
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 that they provide at least five (5)
days� prior written notice of such termination to the other party
and The LinkShare Network(tm). Termination of this Agreement
shall also terminate any outstanding Engagements. However, all
rights to payment, causes of action, the confidentiality and
indemnification obligations hereunder and any provisions which by
their terms are intended to survive termination, shall survive
termination of this Agreement.
6. Representations.
6.1. Affiliate represents and warrants that Affiliate�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, antidiscrimination 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.The Kaplan Site, including all products, software,
functions, materials and information, and any services sold,
provided they are made available through the site, are provided
"as is" without warranties of any kind, either express or
implied. Kaplan disclaims all warranties, either express or
implied, including, but not limited to, warranties of quiet
enjoyment and non-infringement and any implied warranties of
merchantability for a particular purpose or use,
non-infringement, title, merchantability of computer programs and
informational content, including any warranties concerning Year
2000 compliance of products, software or services sold,
third-party sites linked to, or otherwise made available on, this
site, or absence of viruses or other harmful programs.
6.3. Kaplan does not warrant or make representations regarding
the operation of the Kaplan Site, the use, validity, accuracy or
reliability of, or the results of the use of the materials on the
Kaplan Site, the products or services obtained through the Kaplan
Site or linked to the Kaplan Site. The materials or prices on the
site may be out of date or in error, and Kaplan makes no
commitment to update the materials on the Kaplan Site. No advice
or information, whether oral, written or obtained by Affiliate
from Kaplan or through the Kaplan Site shall create any warranty
that is not expressly made herein. Kaplan does not and cannot
guarantee or warrant that the files available for downloading
from the Kaplan Site, if any, will be free from viruses, logic
bombs, worms, Trojan horses or other code that manifests
contaminating, destructive or operationally degrading properties.
Kaplan does not warrant that the Kaplan Site, or its product,
software, materials or services will be uninterrupted or
error-free or that any defects in the Kaplan Site, or its
product, software, materials or services will be corrected.
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 and all 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. LinkShare Required
Provisions.
8.1. Kaplan and Affiliate jointly and severally hereby agree to
indemnify, defend, and hold harmless The LinkShare Network(tm)
and LinkShare Corporation and its affiliates, officers,
directors, employees and agents (collectively, "LinkShare") from
and against any and all 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 LinkShare may rely on any data,
notice, instruction or request furnished to LinkShare by either
party which is reasonably believed by LinkShare to be genuine and
to have been sent or presented by a person reasonably believed by
LinkShare 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
LinkShare, LinkShare may consult with and use counsel of its own
choice in connection with such dispute and the reasonable fees
and disbursements of LinkShare'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 LinkShare and that,
except as permitted by Section 8.3(v) of the Merchant Agreement,
dated March 27, 2000, between LinkShare Corporation and Kaplan,
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 LinkShare Network(tm).
8.4. Kaplan and Affiliate acknowledge and agree that the
nature of the Product is such that in its normal 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. Kaplan and Affiliate acknowledge
that LinkShare has not undertaken to provide such external
resources or servers and specifically 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 Kaplan
or Affiliate's computer. LinkShare shall not be responsible for
provision of any communications facilities or the costs
associated with such communications.
8.5. The parties agree that The LinkShare Network(tm) and
LinkShare Corporation are intended third party beneficiaries
under this Agreement.
9. Limitation of
Liability.
9.1. NEITHER PARTY WILL HAVE ANY LIABILITY FOR ANY SPECIAL,
DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL DAMAGES, WHETHER OR
NOT ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND IN
NO EVENT WILL THE LIABILITY OF EITHER PARTY FOR MONETARY DAMAGES
EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE UNDER THIS
AGREEMENT FOR THE TWO MONTHS PRIOR TO THE CONDUCT GIVING RISE TO
SUCH CLAIM.
10. General.
10.1. The parties are independent contractors, and neither party
is an employee, agent, partner or joint venture of the other.
Without limiting the foregoing, neither party is authorized to
act on behalf of the other, and neither party shall have the
right to bind the other to any agreement with a third party or to
incur any obligation or liability on behalf of the other
party.
10.2. This agreement will be construed in accordance with the
laws of the State of New York.
10.3. This Agreement may be executed (including by facsimile
transmission) in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute
one and the same instrument.
10.4. This agreement contains the entire understanding of the
parties with respect to the transactions and matters referred to,
supersedes all previous communications, understandings and
agreements (whether oral or written), cannot be amended except by
a writing signed by both parties.
10.5. If any clause, sentence or other provision of this
Agreement is held to be illegal, invalid or unenforceable, the
remaining clause, sentence, or other provisions shall remain in
full force and effect.
10.6. This Agreement and the rights granted hereunder, may not
be transferred or assigned by either party without the other
party�s prior written consent. Any waiver by either party of any
default or breach hereunder shall not constitute a waiver of any
provision of this Agreement or of any subsequent default or
breach of the same or a different kind.
10.7. Any notice or communication permitted or required
hereunder shall be in writing and shall be delivered in person or
by courier, sent by facsimile, or mailed by certified or
registered mail, postage prepaid, return receipt requested, and
addressed as set forth above or to such other address as shall be
notified to the other party from time to time. If notice is given
in person, by courier or facsimile, it shall be effective upon
receipt; and if notice is given by mail, it shall be effective
five (5) business days after deposit in the mail.
10.8. Each party will, and will require its personnel and its
representatives to, keep confidential and refrain from using in
any manner adverse to the disclosing party confidential or
proprietary materials or information submitted to it by the other
in connection with the performance of this agreement. The
foregoing does not apply to information (i) publicly announced or
known, (ii) received from a third party without violation of an
obligation of confidentiality, (iii) generated independently
without reference to information received under this agreement,
or (iv) required to be disclosed by law.
