ARBICO AFFILIATE AGREEMENT Last modified on June 15, 2010 (See Section 13 on "Modification") This Agreement contains the complete terms and conditions that apply to a person's participation in the ARBICO Affiliates Program (the "Program"). As used in this Agreement: "we", "us", and "our" (and all variations thereof) and "ARBICO" refer to Arizona Biological Control, Inc., an Arizona corporation; "you" and "your" refer to the person applying to participate in the Program; "site" means a site on the World Wide Web; "our site" means the site that has its primary home page identified by the URL www.arbico-organics.com; "your site refers to any site that you will link to our site (which you must identify in your Program application); and "person" includes an individual, corporation, partnership, limited liability company, or other entity. Except for our obligation to pay referral fees under Section 4, we may cause any of our obligations to be fulfilled on our behalf by any of our affiliated companies. 1. Enrollment in the Program To begin the enrollment process, you must submit a complete Program application via our site. We will evaluate your application in good faith and will notify you of its acceptance or rejection. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Program. Unsuitable sites include those that: * promote sexually explicit materials * promote violence * promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age * promote illegal activities * include "ARBICO" or "arbico", alone or in combination with "Organics", or any other trademark of ARBICO or its affiliated companies, or any variations or misspellings thereof, in domain names, URLs, meta tags, or keywords * otherwise violate intellectual property rights By participating in the Program, you agree that you will not engage in any such activities. If we reject your application, you are welcome to reapply to the Program at any time. You should also note that if we accept your application and your site is thereafter determined (in our sole discretion) to be unsuitable for the Program, we may terminate this Agreement. Participation in the Program is limited to individuals and entities that lawfully can enter into and form contracts under applicable law. 2. Links on Your Site Once you have been notified that your site has been accepted into the Program, we grant you a revocable, non-exclusive license for the duration of this Agreement, solely for purposes of facilitating referrals from your site to our site, to provide on your site one or more of the following types of links to our site: 1. Product Links: You may select on or more of our products to list on your site. 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 entry for that product on our site. You may add or delete product links from your site at any time without our approval. 2. General Link to ARBICO Home Page: You may provide a general link on your site to our home page at www.arbico-organics.com. 3. ARBICO Recommends Link: If your site qualifies (as determined by us in our sole discretion), you may place an ARBICO Recommends link on your site to enable us to serve recommended content based on your site's specialty or sales history directly to visitors to your site. We will provide you with guidelines and graphical artwork to use in linking to our site. 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 link between your site and our site properly utilizes the special link formats. Links to our site placed on your site pursuant to this Agreement that properly utilize the special link formats are referred to as "Special Links." You will earn referral fees only with respect to activity on our site occurring directly through Special Links. We will not be liable to you with respect to any failure by you to use Special Links, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement. You agree that, by participating in the Program and placing any of the above links within your site, we may receive information from or about visitors to your site or communications between your site and those visitors. Your participation in the Program constitutes your specific and unconditional consent to and authorization for our access to, receipt, storage, use, and disclosure of any and all such information, consistent with the policies and procedures set forth in the privacy policies and notices appearing on our site, as those policies and notices may be modified from time to time in our sole discretion. Except for the limited licenses granted under Sections 2 and 9 of this Agreement, you do not obtain any rights to use any of our intellectual property. You agree that you will: (a) not, in connection with this Agreement, display or reference on your site, any trademark or logo of any third party seller on our site; (b) ensure that any "Privacy Information" link or ARBICO trademark (either in logo or text form) that we include in a Special Link is not obscured in any way or made invisible to visitors of your site; (c) use any data, images, text, or other information obtained by you from us or our site in connection with this Agreement ("Content") only in a lawful manner and only in accordance with the terms of this Agreement; (d) not modify or alter any Content that consists of a graphic image, other than to resize it; (e) not edit any Content that consists of text, other than to shorten its length; (f) not sell, redistribute, sublicense, or transfer any Content; (g) not use any Content in a manner intended to send sales to any site other than our site; and (h) promptly delete any Content that is no longer displayed on our site or that we notify you is no longer available for your use. You also agree that you will not bid on or use the keywords "ARBICO" or "arbico", alone or in combination with "Organics", or any other trademark of ARBICO or its affiliated companies, or any variations or misspellings thereof, or make offers of discounts or coupons in pay per click ads. 3. Order Processing We will process product orders placed by customers who follow Special Links from your site to our site. We reserve the right to reject orders that do not comply with any requirements that we may establish periodically. We will be responsible for all aspects of servicing 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 purchase products by 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 sole discretion. 4. Referral Fees We will pay you (in accordance with Sections 5 and 8 below) referral fees on product sales to third parties. For a product sale to be eligible to earn a referral fee, the customer must click-through a Special Link from your site to our site, and add the product to his or her shopping cart or purchase the product during a session. The session ends upon one of the following events: (a) 24 hours elapses from the customer's initial click-through, (b) the customer orders the product, or (c) the customer follows a third party's Special Link. We will only pay referral fees on product sales after order, payment and shipping have occurred. You may not purchase products during sessions initiated through the links on your site for your own use, for resale or commercial use of any kind. This includes orders for customers or on behalf of customers or orders for products to be used by you or your friends, relatives, or associates in any manner. Such purchases may result (in our sole discretion) in the withholding of referral fees and/or the termination of this Agreement. In addition, you may not: (a) directly or indirectly offer any person any consideration or incentive (including payment of money (including any rebate), or granting of any discount or other benefit) for using Special Links on your site to access our site (e.g., by implementing any "rewards" program for persons or entities who use Special Links on your site to access our site); (b) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any person; (c) in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of our site; (d) make any orders or subscription requests, or engage in other transactions of any kind on our site on behalf of any third party, or authorize, assist, or encourage any other person to do so; (e) take any action that 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, and so on) are occurring; or (f) post or serve any advertisements or promotional content around or in conjunction with the display of our site (e.g., through any "framing" technique or technology or pop-up windows), or assist, authorize, or encourage any third party to take any such action. If we determine, in our sole discretion, that you have engaged in any of the foregoing activities or in any other activities having similar purposes or effects we may (without limiting any other rights or remedies available to us) withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement. 5. Referral Fee Schedule You will earn referral fees based on Qualifying Revenues according to referral fee schedules to be established by us. "Qualifying Revenues" are revenues derived by us from product sales to third parties that satisfy the requirements of Section 4, excluding costs for shipping, handling, gift-wrapping, taxes separately stated and charged to the customer, service charges, rebates, credit card processing fees, returns and bad debt. The current referral fee schedule is 10% per referred sale. 6. Referral Fee Payment We will pay you referral fees on a monthly basis. Approximately 5 business days following the end of each calendar month, we will send you a payment for the referral fees accrued 30 days or more prior to that month, however, if the referral fees payable to you for any calendar month are less than $25.00, we will hold payment until the total amount due is at least $25.00 or (if earlier) until this Agreement is terminated. In calculating referral fees, we will deduct the corresponding referral fee from your next monthly payment if a Product that generated a referral fee is returned by the customer. If there is no subsequent payment, we will send you a bill for the referral fee. If payment is via check, we will also deduct a $2.00 check fee from each check as a processing fee. 7. Policies and Pricing Customers who buy products through this Program will be deemed to be customers of ARBICO. Accordingly, all of our rules, policies, operating procedures, and pricing will apply to those customers and their activities on our site. We may change our policies and operating procedures at any time, and from time to time, without prior notice. For example, we will determine the fees to be charged for services rendered. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability of any particular fee or service. 8. Identifying Yourself as an Affiliate You may not issue any press release with respect to this Agreement or your participation in the Program; such action may result in your termination from the Program. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person except as expressly permitted by this Agreement (including any express or implied statement that we support, sponsor, endorse, or contribute money to any charity or other cause). 9. Limited License Once you have been notified that your site has been accepted into the Program, we grant you a revocable, non-exclusive license for the duration of this Agreement, solely for purposes of facilitating referrals from your site to our site, to use the graphic image and text described in Section 8 and such other text or 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 (including our trade name and/or trademark "ARBICO"), 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. Upon revocation of your license, you must immediately cease use of, and remove from your site, all links to our site, and all ARBICO trademarks, trade dress, and logos, graphic images, text, and other images, and all other Content and materials provided by or on behalf of us to you under this Agreement or in connection with the Program. 10. 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 * ensuring that the display of Special Links on your site does not violate any agreement between you and any third party, including any restrictions imposed by the person that hosts your site * creating and posting product or service descriptions on your site and linking those descriptions to our catalog * the accuracy and appropriateness of materials and information posted on your site * 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 * ensuring that your site accurately and adequately discloses, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors' browsers. We disclaim all liability for these matters. Further, you agree to indemnify us against all claims, damages, and expenses (including attorneys' fees) relating to the development, operation, maintenance, and contents of your site. 11. Compliance with Laws As a condition to your participation in the Program, you agree that while you are a Program participant you will comply with all laws, rules, regulations, and other requirements of any governmental authority that has jurisdiction over you, whether now in effect or later come into effect during the time you are a Program participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all applicable laws (federal, state or otherwise) that govern marketing email, including the CAN-SPAM Act of 2003 and all other anti-spam laws. 12. 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 you or us. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon termination of this Agreement for any reason, you must immediately cease use of, and remove from your site, all links to our site, and all ARBICO trademarks, trade dress, and logos, graphic images, text, and other images, and all other Content and materials provided by or on behalf of us to you under this Agreement or in connection with the Program. You are eligible to earn referral fees only on sales of products that occur during the term, and referral fees 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. 13. 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 referral fees, referral fee 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. 14. 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. 15. 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. 16. Disclaimers We make no express or implied warranties or representations with respect to the Program or any products or services sold through the Program (including 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. 17. 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. 18. Arbitration Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement, or your relationship with us or any of our affiliates, shall be submitted to confidential arbitration in Tucson, Arizona, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of Arizona (and by participating in the Program you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the commercial arbitration rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. The prevailing party in any arbitration or litigation will be entitled to recover its costs and reasonable attorneys' fees. 19. Miscellaneous This Agreement will be governed by the laws of the United States and the state of Arizona, without reference to rules governing choice of laws. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent, which may be given or withheld in our sole discretion. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. "Include" and "including" and all variations thereof are not limiting. 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. This Agreement sets forth the entire agreement between us and you. You agree that no other promises, representations, warranties, or assurances have been made by us or relied upon by you. Close This Window