Promotional Program Agreement
This Promotional Program Agreement (Agreement) is made effective on the date of check out between Made in America Research, LLC, a Florida limited liability company (“MIAR”), and The Participant (“Particpant”) specified and entered into during the checkout transaction. By checking and clicking on the acceptance box at the end of this Promotional Program Agreement (“Agreement”), you acknowledge that you have read, understand and agree to be bound by the terms set forth in this Agreement. Your use of any of Our Services (including the advertising of your products on our website) also constitutes your acknowledgment of and agreement to be bound by this Agreement.Background:
A. MIAR owns and operates a website called Made in America Research.Com that promotes the sale of goods made in the United States of America (the “Site”) and, in conjunction therewith, offers a promotional program for purchasers of products or services from the Site (“Program”).
B. Participant manufactures offers for sale certain products that are made in the United States of America, each of which has a list price of at least One Hundred Dollars ($100.00) (each, a “Product” and collectively, “Products”) If the list price is less than One Hundred Dollars ($100.00), at the sole discretion of MIAR special arrangements may be negotiated between the Participant and MIAR.
C. Participant desires to advertise and offer Products for sale in the Program, and MIAR is willing to allow Participant to do so, subject to the terms described below.
NOW THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. Term of this Agreement. The Term of this Agreement shall begin upon Participant’s acceptance of the terms hereof, and shall end upon 30 day’s prior written notice of termination by either of MIAR or Participant to the other, for any reason whatsoever. The obligations set forth in Sections 4 through 13 of this Agreement shall survive termination.
2. Posting Advertisements. Participant is responsible for presenting to MIAR each advertisement for a Product that Participant wishes to post on the Site and, for each advertisement so presented, Participant shall clearly set forth in writing on the face of the advertisement, all of the terms of the offer to sell the Product, including any restrictions or limitations on the offer (collectively, “Sale Terms”). Participant and MIAR shall also agree on the starting and ending date for the publication by MIAR of each advertisement on the Site (for each advertisement, the “Publication Period”). MIAR reserves the right to accept or reject at its sole discretion each advertisement that Participant presents to it, and prior acceptance of one or more advertisements does not constitute waiver of this right by MIAR. If and only if MIAR accepts an advertisement with its associated Sale Terms and the parties agree as to Publication Period, then MIAR shall publish the advertisement and manage the sale of such advertisement on the Site.
3. Right to Remove Advertisements. MIAR has no obligation to edit, monitor or screen the content of any advertisements and is not in any way responsible to Participant or to persons viewing such advertisements or purchasing any Product or any other third parties for the content contained in advertisements or any content linked to or from such advertisements. Notwithstanding the foregoing, MIAR reserves the right to review the content contained in all advertisements and may remove any advertisements or the content contained therein for any reason or no reason, as determined at the sole discretion of MIAR.
4. Sale of Products. The parties agree that the Site and each advertisement will be configured so that that users of the Site will be able to purchase a Product by ordering the Product from the Site in accordance with any terms set forth on the advertisement for the Product and by paying MIAR the list price, tax and cost of shipping the Product to User (collectively, the “Purchase Price”). Promptly upon receipt of the order and the Purchase Price, MIAR will electronically notify Participant of the order and payment received. Upon receipt of such notice, Participant will ship the Product to the purchaser using a nationally recognized delivery service, will send order tracking information to MIAR and will notify MIAR when the Product has been delivered to the purchaser. Within five (5) business days after receipt of notice of delivery of the Product to its purchaser, MIAR will forward to Participant the Purchase Price, less the Fee described in Section 5 of this Agreement.
5. Fee for MIAR. In consideration of its services under this Agreement, Participant will pay MIAR a fee equal to five percent (5%) of the list price of each Product purchased from the Site (“Fee”), which amount MIAR may deduct from the Purchase Price prior to remitting the Purchase Price to Participant. [If advertiser is a commission advertiser only or has a Basic Membership in MADEINTHEUSA.ORG, the commission percentage is ten percent]. MIAR will be solely responsible for payment of taxes imposed on the Fee.
6. “Giveaway” Promotion. MIAR will keep track of the number of Products sold through the Site. MIAR agrees that, as certain sales milestones are met, it will remit the following payments to purchasers of Products: (a) MIAR will pay $100 to the 100th, 200th, 300th, 400th, 500th, 600th, 700th, 800th and 900th purchaser of a Product; (b) MIAR will pay $1,000 to the 1000th, 2000th, 3000th, 4000th, 5000th, 6000th, 7000th, 8000th and 9000th purchaser of a Product; and (c) MIAR will pay $10,000 to the 10,000th purchaser of a Product.
7. Disclaimer. MIAR may make improvements and/or changes to its features, functionality or content at any time, which may cause disruptions in the use of the Site. MIAR shall not be liable to Participant, users of the Site or any other third party for errors, omissions, or any harm caused, relating to, or arising out of the use of the Site by Participant or users of the Site. No failure to display an advertisement on the Site, or failure of the Site, of any kind shall be considered a breach of this Agreement by MIAR, and MIAR shall not be liable to Participant, any user of the Site or any other third party for any damages for any failure to display an advertisement or any failure of the Site.
8. Indemnification of MIAR. Vendor shall indemnify and hold MIAR harmless from and against any and all claims brought against MIAR, and shall reimburse MIAR for any judgments, damages, cost or expenses payable or incurred by IKON, including reasonable expenses incurred by MIAR, to the extent resulting from (i) any negligent acts or omissions by Participant in connection with the manufacture or production of any Product, (ii) the breach by Participant of any warranties or representations relating to any Product, (iii) any infringement by the Product or of any advertisement related thereto of any third party’s intellectual property rights, or (iv) any liability for sales or other taxes imposed on the sale of any Product by any governmental unit. MIAR may participate in the defense or settlement with counsel of its own choosing at its own expense. MIAR will promptly notify Participant in writing of any indemnifiable claim hereunder, and give Participant the authority to defend or settle such claim, so long as such defense or settlement does not prejudice MIAR in any way. If a Product, or any part thereof, is, or in the reasonable opinion of Participant is likely to become, the subject of any claim for infringement of such third party intellectual property rights, or if it is judicially determined that the Product, or any part thereof, infringes any such third party’s intellectual property rights, then Participant may, at its option and expense, either (i) procure for MIAR the right under such third party intellectual property rights to sell or use, as appropriate, the Product or (ii) replace or modify the Product or parts thereof, with other suitable and reasonably equivalent technology or parts so that the Product becomes non-infringing or (iii) if it is not commercially reasonable to take the actions specified in items (i) and (ii) immediately preceding, repurchase from MIAR any Product remaining in MIAR’s inventory together with shipping and insurance costs incurred by MIAR for such Product. MIAR shall have the right to assign and otherwise pass through its rights under this section to its customers. The maximum amount of Participant’s liability under this agreement shall not exceed the fees paid to Participant under this agreement.
9. Limitation of Liability. The SITE AND ALL CONTENT ARE PROVIDED ON AN "AS- IS, AS-AVAILABLE" BASIS. MIAR EXPRESSLY DISCLAIMS AND PARTICIPANT HEREBY WAIVES ALL WARRANTIES BY OR ON BEHALF OF MIAR, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MIAR DISCLAIMS ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF, OR IN ANY WAY RELATED TO: (A) ANY ERRORS IN OR OMISSIONS FROM THE SITE AND ITS CONTENT, INCLUDING BUT NOT LIMITED TO TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS, (B) ANY THIRD-PARTY SITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH LINKS IN THE SITE, INCLUDING BUT NOT LIMITED TO ANY ERRORS IN OR OMISSIONS THEREFROM, (C) THE UNAVAILABILITY OF THE SITE, ITS CONTENT, OR ANY PORTION THEREOF, (D) USE OF THE SITE OR ITS CONTENT, OR (E) USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SITE OR ITS CONTENT. IN NO EVENT WILL MIAR HAVE ANY LIABILITY UNDER THIS AGREEMENT TO PARTICIPANT OR TO A USER OR ANY OTHER THIRD PARTY. MIAR’s maximum liability for all damages incurred by Participant under this Agreement will be limited to the amount of Fees collected by MIAR in respect of such Product prior to the date such damages allegedly occurred.
10. Representations, Warranties and Indemnity. Participant represents and warrants that the content of every advertisement will be lawful and that Participant shall fully honor each advertisement in strict accordance with its advertisement Terms. Participant further warrants and undertakes to MIAR that no advertisement will contain anything that is: a) defamatory of any person; b) indecent or obscene; c) a breach of the copyright, trademark or other intellectual or commercial property rights of any person; or d) a statement that is misleading or deceptive, or is likely to mislead or be deceptive. Participant agrees that advertisement will be a true discount below which price the product or service is available to the general public. Participant agrees that MIAR in its sole discretion may determine if Participant violates any provision in this Section 10. Participant assumes full and complete responsibility and liability for its use of the Site, including (without limitation) Participant’s satisfaction of any and all obligations to Users and other third parties relating to or arising out of use of the Site, and all information and content, including (without limitation) all advertisements published, printed, displayed, or submitted pursuant to this Agreement and use of the Site, and shall indemnify, defend and hold MIAR, including its officer, members, managers, employees and agents, harmless from and against all demands, claims, or liability, related to the foregoing, including (without limitation) any allegation that Participant did not honor the advertisement according to its terms or that the advertisement infringes or violates any rights of any third party or violates any law. Participant shall reimburse MIAR for any and all amounts paid by MIAR in settlement or satisfaction of any such demands, claims, or liability, together with all expenses incurred in connection therewith, including, but not limited to, attorney’s fees and costs.
11. Entire Agreement. This Agreement contains the entire understanding of the parties and supersedes previous verbal and written agreements between the parties concerning the subject matter hereof. Any waiver of a provision of this Agreement by MIAR shall not be binding unless such waiver is in writing and signed by MIAR. Waiver by MIAR of any breach of this Agreement shall not constitute waiver of any other breach. Any failure by MIAR to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision.
12. Governing Law. This Agreement shall be governed by the laws of the State of Florida without regard to any rules of conflict or choice of laws which require the application of laws of another jurisdiction. The parties hereby agree that the state and federal courts of Leon County, Florida shall have personal jurisdiction, and that venue shall be proper in such courts.
13. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile or electronic mail transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile or electronic mail shall be deemed to be their original signatures for all purposes.