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Operating Agreement
This Agreement contains the complete terms and conditions
that apply to an organzation's participation in the JustPhoneCards.com
Sponsorship Program (the "Program"). As used in this Agreement,
"we" means JustPhoneCards.com LLC, and "you" means the applicant.
"Site" means a World Wide Web site and, depending on the context,
refers either to JustPhoneCards.com's site located at the URL www.justphonecards.com,
or to any site that you will link to our site.
- Enrollment in the Program
To become a member of the Program, you will submit a complete
Program application via our site. We will accept your application
in good faith. However, we reserve the rights to terminate this
Agreement if we determine (in our sole discretion) that your site
is unsuitable for the Program. Unsuitable sites include those
that:
- promote violence
- promote discrimination based on race, sex,
religion, nationality, disability, sexual orientation, or
age
- promote illegal activities
- include "justphonecards" or "justphonecard"
or variations or misspellings thereof in their domain names
- otherwise violate intellectual property rights
- Links on Your Site
Once you have received confirmation on your membership, you may
provide on your site one or more of the following types of links
to our site:
Product Links: You may select one or
more Products to list on your site. A "Product" is any product
listed on our site, excluding products not sold and fulfilled
by us, such as products found through our product finder feature
which allows users to find products sold by other merchants
on the Internet. For each selected Product, you will display
on your site a short description, review, or other reference.
You will be responsible for the content, style, and placement
of these references. You will provide a Special Link (as defined
below) from each Product reference on your site to the corresponding
JustPhoneCards.com online catalog entry. You may add or delete
Products (and related links) from your site at any time without
our approval. You may not list products on your site that are
not "Products" as defined above.
General Link to JustPhoneCards.com Home
Page: You may provide a general link on your site to our home
page at http://www.justphonecards.com.
We will provide you with guidelines and graphical
artwork to use in linking to our home page. To permit accurate
tracking, reporting, and referral fee accrual, we will provide
you with special "tagged" link formats to be used in all links
between your site and our site. You must ensure that each of
the links between your site and our site properly utilizes such
special link formats. Links to our site placed on your site
pursuant to this Agreement and which properly utilize such special
link formats are referred to as "Special Links."
- Order Processing
We will be responsible for all aspects of order processing and
fulfillment. Among other things, we will prepare order forms,
process payments, cancellations, and returns, and handle customer
service. We will track sales made to customers who has registered
using Special Links from your site to our site and will make available
to you reports summarizing this sales activity. The form, content,
and frequency of the reports may vary from time to time in our
discretion.
- Donations
Once a customer has registered at our site and fill your membership
ID as the referral ID, we will make a donation to your organization
(in accordance with Sections 5 and 6 below) on certain Product
sales to the customer and/or his (or her) subsequent referrals.
You may not: (a) read, intercept, record, redirect,
interpret or fill in the contents of any electronic form or
other materials submitted to us by any person or entity; (b)
in any way modify, redirect, suppress or substitute the operation
of any button, link or other interactive feature of our site;
(c) take any action which could reasonably cause any customer
confusion as to our relationship with you, or as to the site
on which any functions or transactions (e.g., search, order,
browse, etc.) are occurring.
- Donation Schedule
We will make donations based on Qualifying Revenues according
to Donations schedules to be established by us. "Qualifying Revenues"
are revenues derived by us from our sales of Qualifying Products,
excluding costs for shipping, handling, gift-wrapping, taxes,
service charges, credit card processing fees, and bad debt.
The current sponsorship schedules are:
We donate 5% of the Qualifying Revenues derived
from your members to your organization.
- Donation Payment
Program Participants will be payed by a check on a quarterly basis.
Approximately 30 days following the end of each calendar quarter,
we will send your organzation a check for the donation derived
on our sales of Qualifying Products that were shipped during that
quarter, less any taxes that we are required by law to withhold.
However, if the donation payable to your organization for any
calendar quarter are less than $25.00, we will hold those donations
until the total amount due is at least $25.00 or (if earlier)
until this Agreement is terminated. If a Product that generated
a donation is returned by the customer, we will deduct the corresponding
donation from your next quarterly payment.
- Policies and Pricing
Customers who buy products through this Program will be deemed
to be customers of JustPhoneCards.com. Accordingly, all JustPhoneCards.com
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 this Program 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 particular product.
- Identifying Your Organzation as a Program
Participant
We will make available to you a small graphic image that identifies
your site as a Program participant. You must display this logo
or the phrase "JustPhoneCards.com" somewhere on your site. We
may modify the text or graphic image of this notice from time
to time. You may not make any press release with respect to this
Agreement or your participation in the Program without our prior
written consent, which may be given or withheld in our sole discretion.
In addition, you may not in any manner misrepresent or embellish
the relationship between us and you, or express or imply any relationship
or sponsorship between us and you or any other person or entity
except as expressly permitted by this Agreement (including by
expressing or implying that JustPhoneCards.com supports, sponsors,
endorses or contributes money to any charity or other cause).
- Limited License
We grant you a nonexclusive, revocable right to use the graphic
image and text described in Section 8 and such other images for
which we grant express permission, solely for the purpose of identifying
your site as a Program participant and to assist in generating
Product sales. You may not modify the graphic image or text, or
any other of our images, in any way. We reserve all of our rights
in the graphic image and text, any other images, our trade names
and trademarks, and all other intellectual property rights. You
agree to follow our Trademark Guidelines, as those guidelines
may change from time to time. We may revoke your license at any
time by giving you written notice.
- Responsibility for Your Site
You will be solely responsible for the development, operation,
and maintenance of your site and for all materials that appear
on your site. For example, you will be solely responsible for:
- the technical operation of your site and
all related equipment
- creating and posting Product descriptions
on your site and linking those descriptions to our catalog
- the accuracy and appropriateness of materials
posted on your site (including, among other things, all Product-related
materials)
- ensuring that materials posted on your site
do not violate or infringe upon the rights of any third party
(including, for example, copyrights, trademarks, privacy,
or other personal or proprietary rights)
- ensuring that materials posted on your site
are not libelous or otherwise illegal
We disclaim all liability for these matters.
Further, you will 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.
- Term of the Agreement
The term of this Agreement will begin upon our acceptance of your
Program application and will end when terminated by either party.
Either you or JustPhoneCards.com may terminate this Agreement
at any time, with or without cause, by giving the other party
written notice of termination. Upon the termination of this Agreement
for any reason, you will immediately cease use of, and remove
from your site, all links to our site, and all JustPhoneCards.com
trademarks, trade dress and logos, and all other materials provided
by or on behalf of us to you pursuant hereto or in connection
with the Program. You are only eligible to earn Referral Rewards
on our sales of Qualifying Products occurring during the term,
and Referral Rewards earned through the date of termination will
remain payable only if the related orders are not canceled or
returned. We may withhold your final payment for a reasonable
time to ensure that the correct amount is paid.
- Modification
We may modify any of the terms and conditions contained in this
Agreement, at any time and in our sole discretion, by posting
a change notice or a new agreement on our site. Modifications
may include, for example, changes in the scope of available Donation,
Donation schedules, payment procedures, and Program rules. IF
ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS
TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE
PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT
ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
- Relationship of Parties
You and we 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.
- Limitation of Liability
We will not be liable for indirect, special, or consequential
damages (or any loss of revenue, profits, or data) arising in
connection with this Agreement or the Program, even if we have
been advised of the possibility of such damages. Further, our
aggregate liability arising with respect to this Agreement and
the Program will not exceed the total referral fees paid or payable
to you under this Agreement.
- Disclaimers
We make no express or implied warranties or representations with
respect to the Program or any products sold through the Program
(including, without limitation, warranties of fitness, merchantability,
noninfringement, or any implied warranties arising out of a 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.
- Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO
ALL ITS 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 PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE,
OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
- Miscellaneous
This Agreement will be governed by the laws of the United States
and the state of California, 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 Los Angeles,
California, and you irrevocably consent to the jurisdiction of
such courts. You may not assign this Agreement, by operation of
law or otherwise, without our prior written consent. Subject to
that restriction, this Agreement will be binding on, inure to
the benefit of, and enforceable against the parties and their
respective successors and assigns. Our failure to enforce your
strict performance of any provision of this Agreement will not
constitute a waiver of our right to subsequently enforce such
provision or any other provision of this Agreement.
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