KAPLAN TEST PREP AND ADMISSIONS
MASTER LINKING AGREEMENT
This Agreement ("Agreement") is by and between Kaplan, Inc. ("Kaplan") acting through its Kaplan Test Prep Division with offices at 1440 Broadway, 8th Floor, New York, NY 10018, and [insert affiliate name] ("Affiliate")
WHEREAS, Kaplan operates KAPTEST.com and KAPLANTUTORING.com (collectively referred to as the "Kaplan Sites"), both freely accessible web sites, currently located at www.kaptest.com and www.kaplantutoring.com respectively, on which Kaplan, through the Kaplan Sites, makes available various products and services, information about KAPTEST.com and KAPLANTUTORING.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 marketing and promotional 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.
1.2. If an Offer made by Kaplan 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 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. Affiliate shall not bid on or purchase Kaplan branded search engine marketing words and terms. These include "Kaplan," "Kaptest," "Kaplan Tutoring" and any other variation of the Kaplan name, 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 Google, Yahoo, and MSN. 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," "Kaplan Tutoring" or any other Kaplan Variations, 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.
