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STANDARD AFFILIATION AGREEMENT - TERMS AND CONDITIONS Between: Box Telecom, Inc., a Florida corporation with its principal address at PO BOX 600291, North Miami Beach, Fl, 33160 ("BOX") and XXXXXX , ("AFFILIATE"). IT IS FIRST RECITED AS FOLLOWS: Whereas, BOX is the organizer of an affiliation program designed to create Links between the BOX Website and the AFFILIATE Website, enabling Internet Users to jump to the BOX Website and purchase mobile content or sign up for one or more subscription Services via a premium SMS solution or a credit/debit Card payment, or a subscription plan. and Whereas, the AFFILIATE edits a Website for which it is solely liable and wishes to offer Internet Users visiting its site the means of signing up for the BOX Services. In consideration for inserting Links on the AFFILIATE Website as aforesaid, BOX will pay the AFFILIATE remuneration based on the number of mobile content purchased and/or subscription Services offered proposed by BOX, that are signed up for by End Clients from the AFFILIATE Website. It is therefore now agreed as follows: Article 1 Definitions Internet User refers to any natural person connected to the Internet that might consult and/or use the AFFILIATE Website. End Client refers to an Internet User who has purchased mobile content or signed up for one or more BOX subscription Services via the AFFILIATE Website. Affiliation Program refers to the program set up by BOX through the website www.mobiDISH.com whereby the AFFILIATE is able to set up a Link as aforesaid, in consideration for which the AFFILIATE will receive remuneration in the conditions defined at article 10 below. Service(s) refer to all offers proposed by BOX on its Websites. Link means any banner, icon, text, search engine, HTML code or form supplied by BOX to the AFFILIATE for directing an Internet User to the BOX Website to sign up for one or more subscription Services. White Label refer to Web pages designed by the AFFILIATE in its own house colours, with the tools proposed by BOX and hosted by BOX, from which Internet Users can access the Services. Download(s) refers to the actual retrieval of the desired resource(s) on the End Client’s mobile terminal. Operators refer to the telecom suppliers of BOX who ensure payment of Download retrievals whether by means of an IVS (Interactive Voice Server), a PSMS number or other. Article 2 Subject The subject of this agreement is the definition of the terms and conditions under which the AFFILIATE will join the Affiliation Program (on a non-exclusive basis). Article 3 Prerequisites for joining the Affiliation Program In order to be able to participate in the Affiliation Program, the AFFILIATE must first complete all the blank fields contained in the on-line application form displayed on the BOX Website and click on the “I accept” icon. An account is opened in the name of the AFFILIATE on receipt of this form. BOX reserves the right to reject any application to join the Affiliation Program at its own discretion and in particular where such applications relate to Websites that: - Do not comply with current legislation and regulations and/or infringe the rights of any third parties, - Are unsuited to the sale or promotion of the Services, or that might damage the brand image of BOX or its Services. Article 4 BOX’s obligations BOX agrees to:
The AFFILIATE agrees:
Article 6 Terms and conditions of use of the Services. The AFFILIATE makes a system of Links available on its Website that re-direct Internet Users to the White Label. This White Label contains the Links referring Users to the Services offered by BOX as well as the audio text numbers enabling the Service(s) to be used. The AFFILIATE hereby expressly acknowledges that a system of hypertext links may be substituted for this system of White Label, whereby Internet Users are re-routed directly from the AFFILIATE Website. Such alteration shall be without effect on this agreement, especially insofar as concerns AFFILIATE payout conditions. BOX will process connections made by End Clients via the Links on the AFFILIATE Website separately. Article 7 Warranty and liability.
Article 9 Proof of service of documents In the event of a dispute of any nature whatsoever arising between the parties, the parties agree that all processes of exchanging information by electronic means (in particular e-mail), all processes for storing data by electronic means as used by BOX and the daily statistics generated by such electronic tools and stored on BOX’s servers, may be used to establish any necessary proofs. Article 10 Financial conditions 10.1 Basis for remuneration (Payout) Remuneration for the AFFILIATE is dependent on the number of Downloads made by End Clients. Payouts are calculated as follows: - 40% of the net revenues made per Download, and/or per Service and per countries. - Subject to the Download(s) having been made lawfully and to the Operators having made payment in respect of the said Downloads(s). 10.2 Payout terms and conditions Based on the statistics generated by the BOX performance tools and using exclusively the tools made available to the AFFILIATE by BOX for this purpose into the site www.mobiDISH.com, the AFFILIATE will prepare and send BOX an invoice. BOX will verify consistency of these invoices and, unless there is a dispute, will make settlement within sixty (60) days of receipt. If there is a discrepancy, BOX will present its evidence and the parties will attempt to settle the dispute. However, if the amount of the invoice is less than fifty (50) dollars, payment thereof will be postponed until the following month and/or until the outstanding amount owed to the AFFILIATE by BOX has reached that sum. Furthermore, if at any time the Downloads for which the AFFILIATE has received payment amount to more than 20% of the sums actually collected by BOX from the Operators for these same Downloads, BOX will inform the AFFILIATE and adjust the calculation of payouts due to the AFFILIATE accordingly on the basis of the number of Downloads actually paid for by the Operators. The amount of this adjustment will be deducted from the AFFILIATE subsequent invoice(s). Invoices must be drawn up and will be settled in US Dollars. 10.3 Modification to payout scale The AFFILIATE acknowledges that BOX may modify the payout scale at any time. In this event, BOX will alter the payout table on its Affiliate Program Website www.mobiDISH.com and from that time, all AFFILIATES shall be subject to such new payments. 10.4 Disqualification of the right to remuneration Any unlawful Download, in particular by way of misuse on quantity of calls, or any other fraudulent practices resulting from misuse of telephone lines, shall disqualify the AFFILIATE from any payout whatsoever. Furthermore, BOX reserves the right to cancel the contract on the exclusive fault of the AFFILIATE and to commence civil or criminal proceedings against the fraudulent party to enable it to defend its interests. Article 11 Personally identifiable data BOX hereby agrees to comply with all existing legal provisions concerning personally identifiable data and all other legislation that may be introduced at later date. BOX is sole proprietor of the database created from the information gathered from End Clients and Internet Users, and is solely liable for processing the personally identifiable data necessary to use the Services. Article 12 Term and termination This contract becomes effective from the date of execution and/or from the date of acceptance of the application form to join the Affiliation Program submitted by the AFFILIATE, confirmed by BOX to the AFFILIATE in an e-mail. Termination at the initiative by either party. The contract is entered into for an undetermined period of time. Either party may terminate the agreement at any time by recorded delivery letter with advice of receipt subject to one (01) month notice and without any compensation being due to either party. Termination on grounds of absence of income. In the event the AFFILIATE generates no income over a period of thirty (30) days, BOX may terminate this contract without notice. Termination on grounds of default. Moreover, in the event the AFFILIATE fails to comply with any of the conditions herein, BOX reserves the legal right to cancel the contract on the fault of the AFFILIATE. Such termination shall be given without notice or notice to remedy and is without prejudice to any compensation that BOX may be able to claim. Termination on third party grounds. The contract shall end legally and automatically in the event of termination of any agreement binding the Operator and/or a service provider and BOX. Such termination shall not entitle the AFFILIATE to any compensation of any nature whatsoever. Effects of termination. On the cessation of the contractual relationship, whatever the grounds thereof, the AFFILIATE must delete all the Links established between its Website and that of BOX. BOX will delete the White Label. As at the date of termination of the contract, the AFFILIATE must repay all the sums that it might have collected in advance that it would have paid to BOX. No payment shall be owing to the AFFILIATE after the expiration of one week’s notice. Article 13 Force majeure In the case of any event falling within the definition of force majeure as given by the courts, the obligations of the party prevented from performing the contract shall be suspended. The parties further agree that the following incidents shall be treated as force majeure: - Interruptions to Services due to default of telecommunication networks or its service providers or the characteristics and limitations of the Internet networks, in particular in the case of interruptions to access networks, technical performance and response-times for consulting, retrieving or transferring information; - Insurrection, civil war, war, military operations, national or local state of emergency, natural disasters, fire, lightning, explosion, flood, storm. In the event an occurrence of force majeure prevents one of the parties from performing its obligations under this contract for a period in excess of two (02) weeks, either party may terminate this contract by letter sent recorded delivery with advice of receipt, without being able to claim any compensation from the other party. Article 14 Confidentiality Both parties agree to keep confidential all information (including methods and know-how) and documents of any nature whatsoever whether commercial, financial, economic, technical (in particular the scripts supplied by BOX) etc., to which they may have had access in the course of performing this contract. However, neither party shall be deemed liable for divulging information or documents if these: - Are already in the public domain; - Were obtained lawfully by third parties not subject to the obligation of secrecy; - Must be disclosed to a third party by the imperative effect of a law, a decision of the court or of a competent public authority; or - Are disclosed to a court, including a court of arbitration, or to an expert appraiser or counsel, for the purpose of asserting any right whatsoever pertaining to that party. Article 15 Username and password The AFFILIATE has sole liability for using the Username and Password forwarded by BOX. On no account should the said Username and Password be disclosed to any third parties. In the event of unauthorized use of its Username and Password, the AFFILIATE must inform BOX without delay. Article 16 Independence of the parties The terms of this contract shall not be interpreted as making one party the principal, agent or legal representative of the other party. Thus each party agrees to refrain from doing anything that might mislead any third party in this respect and further agrees not to make any undertaking or offer any warranty whatsoever on behalf of the other party. Article 17 Generalities The fact of either party failing to avail itself of any of its rights under the terms of this contract shall not be construed as a waiver of such rights for the future. In the event that any clause in the contract is declared null and void, that clause shall be deemed not to have been written but shall not entail nullity of the contract as a whole. The parties will endeavour to find an equivalent clause that is valid and that reflects their intention. The contract forms the whole of the contractual documents between the parties and replaces all previous agreements between them with the same subject; it may not be modified except by supplementary agreement signed by both parties. BOX reserves the right to alter these Standard Terms and Conditions at any time. The current Terms and Conditions are accessible on the BOX Website and it is therefore the responsibility of the AFFILIATE to check for updates regularly. Nevertheless, BOX will inform the AFFILIATE of any alterations to this contract by any means available. Article 18 Applicable law - Allocation of competence This contract is governed by the Laws of the State of Florida and the Courts of Miami-Dade County have sole jurisdiction to hear any dispute relating to the interpretation of performance of the contract. This agreement has been signed by on line acceptation. |
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