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AFFILIATE OPERATING AGREEMENT

This Agreement contains the complete terms and conditions that apply to your participation as an affiliate in the Affiliate Network of BRODERBUND, LLC, and the establishment of links from your affiliate web site to our web site. Your submission of an application to participate to participate in the Broderbund Affiliate Network is your express agreement to the following terms and conditions.

  1. Enrollment in the Affiliate Network
    To begin the enrollment process, you will submit a complete Affiliate Network application. We will evaluate your application in good faith and will notify you of your acceptance or rejection in a timely manner. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Affiliate Network for any reason, including, but not limited to, inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable.

    If we reject your application, you are welcome to reapply to the Affiliate Network at any time.
  2. Promotion of Our Affiliate Relationship
    As an Affiliate Site, we will make available to you links (each of these links sometimes being referred to herein as "links" or, individually, as a "link"), which, subject to the terms and conditions hereof, you may display as often and in as many areas on your site as you desire. The links will serve to identify your site as a member of our Affiliate Network and will establish a link from your site to ours.
  3. Agreements Regarding links:
    In utilizing our links, you agree that you will cooperate fully with us in order to establish and maintain such links, as the case may be. You also agree that you will display in your site only those graphic images (indicating a link) that are provided by us, and you will substitute such images with any new images provided by us from time to time throughout the term of this Agreement. All Affiliate Sites shall display such graphic images prominently in relevant sections of their site. All links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. Each link connecting users of your site to the pertinent area of our site will in no way alter the look, feel or functionality of our site. In addition, we encourage (but do not require) you to include a link to the home page of our site.
  4. Our Responsibilities
    We will be responsible for providing all information necessary to allow you to make appropriate links from your site to our site. We will be solely responsible for processing every order placed by a customer following a special link from your site, for tracking the volume and amount of sales generated by your site, and for providing information to Affiliate Sites regarding sales statistics. We will be responsible for order entry, payment processing, shipping, cancellations, returns, and related customer service.
  5. Other Responsibilities and Opportunities of Affiliate Sites
    1. If you qualify and agree to participate as an Affiliate Site, you shall display links prominently throughout your site as you see fit and with our consent.
    2. Compliance with the Agreement: We have the right in our sole discretion to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement.
  6. Commission Determination
    1. The purchase price of products will count toward the total sales during the calendar quarter in which such products are sold. Only products that are sold by us (to users of your site linked to our site), shipped to a customer, and for which we have received full payment will qualify for a commission. Commission rates will vary based upon the volume of sales made on your site. .
    2. Commission rates will be a percentage, as agreed between us, of the aggregate amount actually paid to us by users of your site who purchase products utilizing the links between our site and your site, excluding amounts collected by us for sales taxes, duties, gift-wrapping, shipping, handling, and similar charges, amounts due to credit card fraud and bad debt, and credits for returned goods, rebates and discounts ("Net Sales").
  7. Commission Payment
    1. Subject to clause (b) below, we will send you a statement of Net Sales and the commission fee check for the applicable commission fee (less any taxes required to be withheld under applicable law) for the Net Sales that occur during each calendar quarter approximately sixty (60) days after the end of each calendar quarter.
    2. Any aggregate commissions earned during any calendar which are less than fifty dollars ($50) will not be paid out and will accrue to your account. Thereafter, you will be paid commissions at the end of the first quarter during which your aggregate commissions earned and accrued exceed fifty dollars ($50). At such time, you will be paid all quarterly commissions earned and accrued.
  8. Reports of Sales
    You will be given a password and have the ability to enter a password-protected site to receive your sales statistics on a daily basis.
  9. Your Responsibilities
    You are solely responsible for ensuring that reviews, product descriptions, and articles on your site comply with all applicable copyright and other laws. You must have express permission to use another party's copyrighted or other proprietary material. We will not be responsible if you use another party's copyrighted or other proprietary material in violation of the law.
  10. Policies and Pricing
    Customers who buy products through the Affiliate Network will be deemed to be customers of BRODERBUND, LLC. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold under the Affiliate Network in accordance with our own pricing policies. Product prices and availability may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any product.
  11. Publicity
    You shall not create, publish, distribute, or permit any written material that makes reference to us without first submitting such material to us and receiving our written consent, which we agree shall not be unreasonably withheld.
  12. Licenses and Use of the BRODERBUND, LLC. Logos and Trademarks
    1. WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS, TO USE OUR LOGOS, TRADE NAMES, TRADEMARKS, AND SIMILAR IDENTIFYING MATERIAL RELATING TO US (COLLECTIVELY, THE "LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF SELLING SOFTWARE ON YOUR SITE FOR BRODERBUND, LLC., YOU MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS TO THE EXTENT THAT YOU ARE A MEMBER IN GOOD STANDING OF THE AFFILIATES NETWORK.
    2. You shall not make any specific use of any Licensed Materials for purposes other than selling software on your site for BRODERBUND, LLC., without first submitting a sample of such to us and obtaining the prior written consent of your BRODERBUND, LLC. account executive, which shall not be unreasonably withheld. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light. We reserve all of our rights in the Licensed Materials and of our other proprietary rights. We may revoke your license at any time, by giving you written notice.
    3. You grant to us a non-exclusive license to utilize your names, titles, and logos as set forth on Exhibit A hereto, as the same may be amended from time to time (the "Affiliate Trademarks"), to advertise, market, promote, and publicize in any manner our rights hereunder; provided, however, that we shall not be required to so advertise, market, promote, or publicize. This license shall terminate upon the effective date of the expiration or termination of this Agreement.
  13. Obligations Regarding Your Site
    1. You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. Such responsibilities include, but are not limited to, the technical operation of your site and all related equipment; creating and posting reviews, descriptions, and references on your site and linking those descriptions to our catalog; the accuracy and propriety of materials posted on your site (including, but not limited to, all software related materials); ensuring that materials posted on your site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal.
    2. We disclaim all liability for all such matters. Further, you hereby agree to defend indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site.
  14. Term of the Agreement
    The term of this Agreement will begin upon our acceptance of your Affiliate Network application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn commission fees on sales occurring during the term, and fees earned through the date of termination will remain payable only if the related book orders are not cancelled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
  15. Modification
    We may modify any of the terms and conditions contained in this Agreement, at any time in our sole discretion. A change notice will be posted publicly. Modifications may include, but are not limited to, changes in the scope of available commission fees, commission schedules, payment procedures, and Affiliate Network rules. If any modification is unacceptable to you, your only recourse is to terminate this agreement. Your continued participation in the Affiliate Network following our posting of a change notice or new agreement on our site will constitute binding acceptance of the change.
  16. Relationship of Parties
    You and BRODERBUND, LLC. are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
  17. Disclaimers
    We make no express or implied warranties or representations with respect to the Affiliate Network or any software sold through the Affiliate Network (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors.
  18. Representations and Warranties
    You hereby represent and warrant to us as follows:

    1. Participation by you in the Broderbund Affiliate Network will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
    2. You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use your trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
    3. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.
  19. Indemnification
    You hereby agree to defend, indemnify and hold harmless BRODERBUND, LLC. and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
  20. Independent Investigation
    YOU ACKNOWLEDGE BY PARTICIPATING IN THE BRODERBUND AFFILIATE NETWORK THAT YOU HAVE READ AND AGREE TO THESE TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE NETWORK AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
  21. Governing Law
    This Agreement will be governed by the laws of the United States and the State of Minnesota, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Hennepin County, Minnesota, and you irrevocably consent to the jurisdiction of such courts.

  22. Miscellaneous
    You may not assign your participation in the Broderbund Affiliate Network, by operation of law or otherwise, without our prior written consent. Our failure to enforce your strict performance of any provision of these Terms and Conditions will not constitute a waiver of our right to subsequently enforce such a provision or any other provision.