| |
PLEASE READ THIS AFFILIATE MARKETING PROGRAM PARTICIPANT AGREEMENT ("AGREEMENT") VERY CAREFULLY BEFORE CLICKING ON THE "SIGN-UP" BUTTON. BY APPLYING FOR THE DISH NETWORK AFFILIATE MARKETING PROGRAM ("PROGRAM") AND CLICKING ON THE "SIGN-UP" BUTTON YOU ARE SIGNIFYING YOUR AGREEMENT TO BE PRESENTLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE SAME EXTENT AS IF YOU HAD PERSONALLY SIGNED THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT CLICK ON THE "SIGN-UP" BUTTON TO APPLY FOR THE PROGRAM. BY ENTERING INTO THIS AGREEMENT YOU REPRESENT THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER.
 1. INTRODUCTION & PROGRAM OVERVIEW
This Agreement is made and entered into by and between DISH Network L.L.C. ("DISH") and you ("You," "Yours," "Yourself"). DISH operates the www.dishnetwork.com website (the "Website"). As part of its Website, DISH offers the Program through which, upon written approval by DISH, You will be granted a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable appointment, subject to and in accordance with the terms and conditions of this Agreement, as such Agreement may be modified as hereinafter set forth, and applicable Policies (as defined below) to: (i) market and promote Programming (as defined below) and the Website; (ii) post or circulate certain DISH-approved graphical or textual Internet hyperlinks (each, a "Link") and DISH Phone Number(s) (as defined below) (a) on websites owned and operated by You; and/or (b) in e-mails sent via subscription e-mail services owned and operated by You; (iii) utilizing the Links, direct visitors to one or more of the constituent URL's of the Website, as may be designated by DISH at Any Time (as defined below) in its Sole Discretion (as defined below) upon notice to You (each, a "Destination Site"); and (iv) utilizing a DISH Phone Number, direct visitors to website(s) owned by You to call DISH directly. This Agreement is not intended to provide, nor shall it be construed as providing, any rights to You to purchase or sell products or programming manufactured and/or distributed by DISH and/or any of its Affiliates. In addition to those terms otherwise defined in this Agreement, the following terms shall have the following meanings solely for purposes of this Agreement: "Affiliate" means any person or entity directly or indirectly controlling, controlled by or under common control with another person or entity; "Any Time" means any time and from time to time; "Programming" means qualifying residential DISH Network video programming services, as determined by DISH at Any Time in its Sole Discretion; and "Sole Discretion" means a person's or entity's sole and absolute discretion for any reason or no reason.
2. APPROVAL
Your participation in this Program is subject to DISH's prior written approval ("Approval"), which approval may be withheld by DISH in its Sole Discretion at Any Time. Prior to participating in this Program, You must: (i) correctly complete and submit a written application in the form designated by DISH at Any Time in its Sole Discretion (the "Application") and located on the portion(s) of the Website dedicated to this Program (the "Program Site"); and (ii) agree to all of the terms and conditions of this Agreement by checking the appropriate box(es) and clicking through the "Sign-Up" button at the bottom of the Application. After review of Your submitted Application, DISH will notify applicant by e-mail (at Your e-mail address provided in the Application) whether You have been approved by DISH for participation in this Program. You are not authorized to post Links or engage in any activities in connection with this Program until You have received express written approval to participate in this Program from DISH. The following are prohibited from participating in this Program: (a) employees of DISH and EchoStar Corporation ("EchoStar"), or any of their Affiliates (collectively, "Affiliated Entities"), (b) independent contractors hired by any of the Affiliated Entities, and (c) members of the immediate families of any of the individuals described in clause (a) or clause (b) of this Section 2.
3. MARKETING POLICIES
From time to time during the term of this Agreement, DISH will make available pre-approved Links via the Program Site for You to use to market and promote Programming and to direct potential DISH Network customers to a Destination Site subject to and in accordance with this Agreement and the Policies. You may not do either of the following without the prior written approval of DISH, which approval may be withheld by DISH in its Sole Discretion: (i) change, modify or revise the Links in any manner whatsoever; or (ii) use any promotional, advertising or marketing materials other than the Links (whether obtained from DISH, any of its Affiliates or otherwise) in connection with this Program. You shall comply with the standard policies and procedures DISH may promulgate at Any Time in written notices, guidelines and bulletins (including without limitation by posting on the Program Site), as the same may be modified at Any Time by DISH in its Sole Discretion upon notice to You (the "Policies"). All Policies are hereby incorporated herein by reference in their entirety.
4. DISH PHONE NUMBERS
DISH may, but shall be under no obligation to, make available at Any Time in its Sole Discretion one (1) or more telephone numbers that You may place on Your website(s) to accompany Links (each a "DISH Phone Number"). By calling a DISH Phone Number, potential DISH Network customers will have the opportunity to place orders for Programming directly through a DISH customer service representative.
5. TELEMARKETING PROHIBITED
You shall not directly or indirectly engage in any telemarketing activities (including without limitation making any outbound telephone calls) whatsoever in connection with this Program.
6. REFERRAL FEES
You may be eligible to receive a "Referral Fee" for each initial activation of Programming for a Subscriber (as defined below) who, during the term of this Agreement, maintains Programming for no less than thirty (30) days from the date of initial activation, which initial activation was a direct result of such Subscriber taking the following actions: (i) (a) clicking on one of Your eligible Links (each a "Click"), (b) being directed to a Destination Site as a direct result of such Click, (c) completing an online order for Programming through the Destination Site within thirty (30) days of the Subscriber initially being directed directly to a Destination Site by clicking on one of Your eligible Links, which order is tagged or otherwise tied in DISH's systems to You; or (ii) (1) calling a DISH Phone Number appearing on one of Your eligible websites or in an e-mail sent via one of Your subscription e-mail services, (2) providing the DISH customer service representative with Your unique identification number assigned to You by DISH ("ID Number") as it appears on Your applicable website, and (3) completing a telephone order for Programming directly through a DISH customer service representative. It shall be Your sole responsibility to clearly and conspicuously display Your valid ID Number on Your website(s) and in e-mail sent via Your subscription e-mail service(s), if applicable. The amount of the Referral Fee and the applicable payment schedule shall be set forth on the Program Site (in Policies or otherwise) and may be changed by DISH at Any Time in DISH's Sole Discretion upon notice to You. Other than Referral Fees, You shall not have any claims to any additional payments or other amounts in connection with this Agreement or the Program, or any business derived directly or indirectly by or through the Website or any DISH Phone Number. Notwithstanding anything set forth herein or in any Policies to the contrary, You shall not be eligible to receive Referral Fees in connection with any activation directly or indirectly resulting from actual or alleged fraud, misrepresentation, illegal action or any of the prohibited actions set forth in Section 12 of this Agreement. Solely for purposes of this Agreement, "Subscriber" means an individual at a qualifying single-family residential dwelling (as determined at Any Time by DISH in its Sole Discretion) in the United States, its territories or possessions, who: (A) orders Programming; (B) timely pays for all DISH Network products and services ordered (including without limitation, Programming) in full, (C) who has not violated the terms and conditions of any agreement by and between DISH or any of its Affiliates on the one hand, and such individual on the other hand; and (D) has not received any audio, video, data, interactive or any other programming services from DISH at Any Time (or during such other time period as may be established at Any Time by DISH in its Sole Discretion as applicable to Your eligibility to receive Referral Fees hereunder). For the avoidance of doubt (and without limitation of any of the foregoing), a Subscriber shall not include any individual that would otherwise qualify, but whose equipment DISH, in its Sole Discretion, declines to activate. DISH and its Affiliates make absolutely no statements, promises, representations, warranties, covenants or guarantees as to the amount of business or revenue that You may expect to derive from participation in this Program. NOTWITHSTANDING ANYTHING SET FORTH HEREIN TO THE CONTRARY, YOU ACKNOWLEDGE AND AGREE THAT: (Y) YOU MAY NOT REALIZE ANY BUSINESS, REVENUE OR OTHER ECONOMIC BENEFIT AS A RESULT OF YOUR PARTICIPATION IN THIS PROGRAM; AND (Z) NOTHING CONTAINED IN THIS AGREEMENT, IN ANY POLICIES OR ON THE PROGRAM SITE SHALL BE CONSTRUED AS ANY GUARANTEE OF ANY MINIMUM AMOUNT OF REFERRAL FEES OR ANY MINIMUM AMOUNT OF OTHER PAYMENTS, INCOME, REVENUE OR OTHER ECONOMIC BENEFIT IN ANY FORM WHATSOEVER.
7. CHARGEBACKS
FOR PURPOSES OF THIS AGREEMENT, "CHARGEBACK" MEANS DISH'S RIGHT TO RECLAIM REFERRAL FEES PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IN THE EVENT YOU ARE PAID A REFERRAL FEE TO WHICH YOU ARE NOT ENTITLED PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DISH SHALL HAVE THE RIGHT TO CHARGEBACK SUCH REFERRAL FEE TO YOU. IN ADDITION TO (AND WITHOUT LIMITATION OF) THE FOREGOING, DISH SHALL HAVE THE RIGHT TO CHARGEBACK ALL OR ANY PORTION OF A REFERRAL FEE: (I) WITH RESPECT TO A PARTICULAR SUBSCRIBER WHO SUBSEQUENTLY FAILS TO PAY IN FULL FOR THE UNDERLYING PROGRAMMING, OR WITH RESPECT TO WHOM A REFUND OR CREDIT IS ISSUED FOR ANY REASON (DISH SHALL HAVE THE OPTION TO ISSUE SUCH CREDITS OR REFUNDS AT ANY TIME AND FROM TIME TO TIME IN ITS SOLE AND ABSOLUTE DISCRETION FOR ANY REASON OR NO REASON); AND (II) IN CONNECTION WITH YOUR FRAUDULENTLY RECEIVING A REFERRAL FEE. FOR THE AVOIDANCE OF DOUBT, IN THE EVENT DISH DETERMINES AT ANY TIME IN GOOD FAITH IN ITS SOLE AND ABSOLUTE DISCRETION FOR ANY REASON OR NO REASON, THAT YOU COMMITTED FRAUD OR OTHER MISCONDUCT, DISH SHALL HAVE THE RIGHT TO CHARGEBACK ALL OR ANY PORTION OF THE REFERRAL FEE(S) PAID TO YOU, AND OUT-OF-POCKET EXPENSES (INCLUDING WITHOUT LIMITATION PROGRAMMING COSTS PAID, COLLECTION COSTS, AND ANY EQUIPMENT SUBSIDIES PROVIDED) INCURRED BY DISH AND/OR ANY OF ITS AFFILIATES, IN CONNECTION WITH SUCH FRAUD OR MISCONDUCT. THIS SECTION IS WITHOUT PREJUDICE TO ANY OTHER RIGHTS AND REMEDIES AVAILABLE TO DISH OR ANY OF ITS AFFILIATES, WHETHER ARISING AT LAW, UNDER CONTRACT (INCLUDING WITHOUT LIMITATION THIS AGREEMENT), IN EQUITY OR OTHERWISE. THE PROVISIONS OF THIS SECTION 7 SHALL SURVIVE TERMINATION OF THIS AGREEMENT (FOR ANY REASON OR NO REASON) INDEFINITELY.
8. PAYMENTS & REQUIRED DOCUMENTATION
Subject to the terms and conditions set forth herein and in applicable Policies, Referral Fees will be paid to You by DISH or its designee via electronic funds transfer ("EFT") or via check; provided, however, that DISH expressly reserves the right to, at Any Time in its Sole Discretion upon notice to You, assess an administrative charge with respect to each payment of Referral Fees made by check. In order to receive any Referral Fees, You must first correctly complete, sign and submit to DISH, and DISH must receive, an IRS Form W-9. In order to receive Referral Fees via EFT, You must first correctly complete, sign and submit to DISH, and DISH must receive, an EFT authorization in the form designated by DISH at Any Time in its Sole Discretion ("EFT Instructions"). Changes to EFT Instructions previously submitted to DISH ("EFT Changes") must be submitted in writing to DISH in the manner prescribed by DISH in applicable Policies at Any Time in its Sole Discretion. You shall allow no less than thirty (30) days for such EFT Changes to be processed by DISH. You agree that in no event shall DISH have any liability under this Agreement for any Referral Fees not received by You as a result of an error in any way attributable to: (a) any bank or financial institution; (b) You (including without limitation in the event You do not display Your valid ID Number in accordance with Section 6); or (c) any other person or entity outside of DISH's direct control. You do not have the right to assign any payments, or Your right to receive any payments, that may be due to You under this Agreement, Any such assignment (whether express or by operation of law) shall be void and unenforceable. Any such attempted assignment shall immediately discontinue Your right to future payments under this Agreement. The provisions of this Section shall survive termination of this Agreement (for any reason or no reason) indefinitely.
9. SUSPENSION OF REFERRAL FEE PAYMENTS
In addition to (and without limitation of) any other rights and remedies available, DISH shall not be required to pay any Referral Fee to You which would otherwise be due to You during any period in which You are in breach or default of this Agreement and DISH shall have no liability to You as a result of such suspension of payment. Specifically, and without limitation of the foregoing, You shall have no right at any time to recoup any Referral Fee not paid during a period of breach or default. The foregoing provisions of this Section 9 may be exercised without terminating this Agreement and are without prejudice to any other rights and remedies that DISH and/or its Affiliates may have under this Agreement, at law, in equity or otherwise. The provisions of this Section 9 shall survive expiration or termination of this Agreement (for any reason or no reason whatsoever) indefinitely.
10. PROGRAMMING
DISH shall determine at Any Time in its Sole Discretion, the Programming that You may market and promote in connection with Your participation in this Program. DISH may expand, reduce or otherwise modify the content of any Programming packages or add or delete any Programming (either in a package or a-la-carte) at Any Time in its Sole Discretion. All such changes shall be effective immediately upon notification by DISH, unless DISH notifies You of a different effective date. If at any time or for any reason or no reason DISH changes the content of any Programming package, Your authority to use or otherwise refer to such prior Programming package in connection with Your performance under this Agreement shall immediately cease.
11. PRICING
DISH shall determine the retail prices for Programming at Any Time in its Sole Discretion. You will only market and promote Programming at the retail prices set by DISH from time to time. DISH may increase, decrease or otherwise modify those prices at Any Time in its Sole Discretion. Any price changes shall be effective immediately upon notification by DISH unless DISH notifies You of a different effective date. You shall not represent that Programming may be purchased or otherwise obtained on any other terms and conditions except as authorized in writing by DISH.
12. PROHIBITED ACTIVITIES & COMPLIANCE WITH LAWS
You shall not engage in any activity or business transaction which could be considered unethical, as determined by DISH in accordance with prevailing business standards, or damaging to DISH's and/or any of its Affiliates' image or goodwill in any way. You shall under no circumstances take any action which could be considered disparaging to DISH and/or any of its Affiliates. You shall comply with all applicable governmental statutes, laws, rules, regulations, ordinances, codes, directives and orders (whether federal, state, municipal or otherwise) and all amendments thereto, now enacted or hereafter promulgated (collectively "Laws"), and You are solely responsible for Your compliance with all Laws in connection with this Agreement. In addition to (and without limitation of any of the foregoing), in connection with Your performance under this Agreement, You shall not directly or indirectly: (i) operate any illegal business through its website(s), subscription e-mail list(s) or otherwise; (ii) display any illegal content on its website(s) and/or in Your subscription e-mail(s); (iii) offer any illegal goods or services through Your website(s) and/or subscription e-mail(s); (iv) display, include or promote any content on its website(s) or in Your subscription e-mail lists that DISH, in its Sole Discretion, believes is misleading, abusive, violent, bigoted, hate-oriented, pornographic or otherwise distasteful; (v) engage in indiscriminate or unsolicited commercial advertising e-mails or promote or assist in the promotion or proliferation of any SPAM, whether or not in violation of any Laws; (vi) engage in the use or distribution of any spyware, adware or other malicious software, as determined by DISH at Any Time in its Sole Discretion; (vii) place Links in newsgroups, message boards, banner networks, counters, chatrooms, guestbooks, Internet Relay Chat (IRC) channels or on or through similar Internet resources, as determined by DISH at Any Time in its Sole Discretion; (viii) enable Links to redirect Internet users by means of any device, program, robot, Iframes, hidden frames, JavaScript popup windows, or similar software, as determined by DISH at Any Time in its Sole Discretion; (ix) establish or participate in any promotion or program that allows third parties to place or otherwise use Links without DISH's express prior written permission; or (x) compile any list or database of the names, addresses (including without limitation e-mail and IP addresses), telephone numbers, or any other personal identifying information of individuals who click on any Link or call a DISH Phone Number listed on one of Your website(s) or subscription e-mail service(s) (a "Potential DISH Customer List").
13. TERM & TERMINATION
(i) The term of this Agreement shall be continuous until terminated as set forth in this Agreement. Either party may, in its Sole Discretion terminate this Agreement: (a) for any reason (with or without cause) by giving the other party no less than seven (7) days prior written notice; or (b) if the other party has failed to cure (if curable) any breach or default of any of such party's obligations, representations, warranties or covenants contained in this Agreement within three (3) days of receipt of written notice from the other party of such breach or default. In addition to (and without limitation of) the foregoing, this Agreement shall terminate automatically in the event of: (a) denial of Your Application by DISH; (b) any actual or alleged fraud, misrepresentation, or illegal action of any sort by You in connection with this Agreement; (c) Your breach or default of any of Your obligations under Section 3, 5, 12, 14, 15, or 16 of this Agreement.
(ii) Upon termination of this Agreement: (a) DISH's acceptance of additional referrals obtained through You (if any) shall not constitute a continuation or renewal of this Agreement or a waiver of such termination; (b) You shall be eligible to receive only those unpaid Referral Fees (if any), if valid (as determined by DISH in its Sole Discretion), that You would have otherwise been eligible to receive prior to the date of termination; (c) You shall in no event be eligible to receive Referral Fees with respect to referrals obtained by DISH through You (if any) after the date of termination; (d) any and all rights and/or licenses granted or otherwise provided to You hereunder shall immediately terminate; and (e) You shall cease any and all use of Links, Trademarks and any other designations of DISH or of this Program.
14. CONFIDENTIAL INFORMATION
You and Your employees will maintain, in confidence, the terms, conditions and provisions of this Agreement, the terms, conditions and provisions of any and all Policies, as well as all data, summaries, reports, communications or information of all kinds, whether oral or written, acquired, devised or developed in any manner from DISH's and/or any of its Affiliate's personnel or files, or as a direct or indirect result of Your actions or performance under this Agreement, including without limitation any Potential DISH Customer Lists and nonpublic personal information of DISH Network Subscribers (.Confidential Information.) and You represent, warrant and covenant to DISH and its Affiliates that You have not and will not reveal the same to any persons not employed by You, except: (i) at the written direction of DISH; (ii) to the extent necessary to comply with any applicable Laws, the valid order of a court of competent jurisdiction or the valid order or requirement of a governmental agency or any successor agency thereto, in which event You shall notify DISH in writing of the information prior to making any disclosure, and shall seek confidential treatment of such information; or (iii) as part of Your normal reporting or review procedure to its parent company, its auditors and its attorneys, provided such parent company, auditors and attorneys agree to be bound by the provisions of this paragraph. In addition to (and without limitation of) the foregoing, You shall use Confidential Information solely for purposes of Your performance under this Agreement. You shall not issue an independent press release with respect to this Agreement or the transactions contemplated hereby without the prior written consent of DISH, which consent may be withheld in DISH's Sole Discretion. Upon termination of this Agreement for any reason or no reason whatsoever, You shall return all Confidential Information (including, without limitation, all copies thereof) or at DISH's request in DISH's Sole Discretion destroy all such Confidential Information, and immediately certify in writing to DISH that such delivery or destruction has taken place. For the avoidance of doubt (and without limitation of the provisions of the immediately preceding sentence), in the event You do not receive a request from DISH to destroy all Confidential Information (including, without limitation, all copies thereof) upon expiration or termination of this Agreement, You shall return all such Confidential Information and copies thereof (if any) to DISH at the notice address(es) specified in the notice provisions of this Agreement (or such other address(es) as may be designated in accordance with such notice provisions). You agree that any breach or default of any of Your obligations set forth in this Section 14 will cause substantial and irreparable harm and injury to DISH for which monetary damages alone would be an inadequate remedy, and which damages are difficult to accurately measure. Accordingly, You agree that DISH shall have the right, in addition to (and without limitation of) any other rights and remedies available to DISH at law, in equity, under contract or otherwise (all of which are hereby expressly reserved), to obtain immediate injunctive relief (without the necessity of posting or filing a bond or other security) to restrain the threatened or actual violation hereof by You, Your employees, independent contractors, subcontractors, Affiliates, agents or sub-agents, as well as any other equitable relief allowed by the federal or state courts. The provisions of this Section 14 shall survive termination of this Agreement (for any reason or no reason whatsoever) indefinitely.
15. PROHIBITION ON SUBSCRIBER CONVERSION
You agree that during the term of this Agreement and for a period of five (5) years following termination of this Agreement, You and Your Affiliates shall not convert, or directly or indirectly assist any other person or entity who You actually knew or should have known intended to convert, any subscriber to any DISH Network video, audio, data or interactive services (including without limitation any Subscriber) to the services of any other digital direct broadcast satellite provider, direct to home programming service provider or video programming distributor. The provisions of this Section 15 shall survive termination of this Agreement (for any reason or no reason whatsoever) for five (5) years.
16. INTELLECTUAL PROPERTY
(i) You acknowledge that certain DISH trademarks (registered or otherwise), service marks or tradenames (collectively, the Trademarks") may be incorporated into the Links and the DISH Phone Numbers.
(iii) You shall not acquire rights to any goodwill, Trademark or other form of intellectual or commercial property of DISH (including without limitation any DISH Phone Number), except for the limited use rights expressly granted herein with respect to the Links.
(iv) You shall immediately and strictly comply with any and all written instructions from DISH with respect to use of the Links and the DISH Phone Numbers (including without limitation those set forth in any Policies).
(v) You shall have no right to use any logos, service marks or trademarks (whether in typewritten, stylized or any other form) of any programming providers (collectively, "Programmer Trademarks"), other than the Programmer Trademarks that are contained in the Links provided to You by DISH (if any). No such materials shall indicate that any agreement of agency, partnership, joint venture, franchise or exclusive or non-exclusive distributorship exists between You on the one hand, and DISH and/or any of its Affiliates on the other hand.
(vi) You acknowledge and agree that DISH may at Any Time, in its Sole Discretion, change, alter, delete, add to or otherwise modify the Links and/or the DISH Phone Numbers and any Trademarks contained in any of the Links or DISH Phone Numbers without the need for any consent, written or otherwise, from You.
(vii) You expressly recognize and agree that any goodwill now existing or hereafter created through its use of the Links, DISH Phone Numbers and any Trademarks hereunder shall inure to DISH's sole and exclusive benefit.
(viii) You expressly recognize and acknowledge that any past, present or future use by You of the Links, DISH Phone Numbers and/or Trademarks in any manner whatsoever or in any form whatsoever shall not confer upon You any proprietary or other rights, title or interest in, to or under any of the Links, DISH Phone Numbers or the Trademarks including, without limitation, any existing or future goodwill in any of the Trademarks or the Links. Further, You waive any and all past, present, or future claims You have or might have in the future in, to, or under any of the Trademarks (whether in typewritten, stylized or any other form) and acknowledge that as between DISH and its Affiliates on the one hand, and You and Your Affiliates on the other hand, DISH and its Affiliates have the exclusive rights to own and use the Trademarks (whether in typewritten, stylized or any other form), the DISH Phone Numbers and the Links, and that DISH and its Affiliates retain full ownership of the Trademarks (whether in typewritten, stylized or any other form), DISH Phone Numbers and the Links notwithstanding the license granted herein.
(ix) You represent and warrant that You have not previously used in commerce, reserved, filed or registered, and hereby agree that You shall not in the future, reserve, file, or register, any formative mark that contains or incorporates in whole or in part any of the Trademarks (whether in typewritten, stylized or any other form). In addition to (and without limitation of the foregoing), You represent and warrant that You have not previously registered, and hereby agrees that You shall not in the future register, any domain name: (a) which includes all or any portion of the Trademarks; (b) which may otherwise be confusingly similar to all or any portion of the Trademarks; or (c) for which such registration would not be in accordance with the Usage Standards (as defined below). In the event that You: (1) have previously reserved, filed or registered, or in the future reserve, file or register, any such trademark; or (2) have previously registered, or in the future register, any domain name in each case in contravention of any of the foregoing, You agree to notify DISH immediately, and shall immediately upon the request of DISH, assign to DISH or its designated Affiliate any and all rights, title, and interests that are obtained through the reservation, filing, or registration of any such trademarks (whether in the U.S. or any foreign jurisdiction) or the registration of any such domain name, as applicable, and hereby acknowledges and agrees that any such reservation, filing, or registration, whenever occurring, shall be on behalf of and for the sole and exclusive benefit of DISH, and You waive any and all claims or rights to any compensation whatsoever therefor. Your obligations in this clause (ix) shall survive the expiration or termination (for any reason or no reason whatsoever) of this Agreement indefinitely.
(x) You agree not to hold Yourself out as DISH Network, DISH, EchoStar Technologies L.L.C. ("EchoStar"), any DISH or EchoStar Affiliate, or any other related or affiliated entity. To avoid any confusion in this respect, unless otherwise expressly agreed to in writing by DISH, You agree not to use, register, submit an application for, obtain, acquire or otherwise seek as part of its business name, trade name or otherwise any Trademark or URL (as defined below) registered or pursued for registration by DISH and/or any of its Affiliates (whether within the Territory or otherwise), including without limitation: (a) "DISH"; (b) "NET"; (c) "ECHO"; (d) "Star"; (e) "Turbo"; (f) "NeverMiss"; or (g) any other word or combination of words identified or included in any Trademark. You further agree to immediately transfer to DISH or its designated Affiliate(s), upon DISH's request, all right, title and interest in, to and under any trademark or URL that You have registered in contravention of any of the provisions of this Agreement or any applicable Policies. Your failure to comply with the provisions of this clause (x) shall constitute a material breach of this Agreement. Upon request, You shall provide DISH with a list of all domain names that You use in connection with this Agreement. Solely for purposes of this Section 16, "URL" means any domain name, telephone number (toll-free or otherwise), IP address, text messaging address, generic top-level domain (gTld), or any other letter, number, character or combination thereof that includes or refers to any Trademark, whether in whole or in part, whether separately, formatively or otherwise, and whether properly spelled or in any typographical derivation or misspelling thereof.
(xi) Nothing in this Agreement shall be construed to bar DISH and its Affiliates from protecting their right to the exclusive use of the Trademarks (whether in typewritten, stylized or any other form) and/or URLs against infringement thereof by any party or parties, including without limitation You, either during the term of this Agreement or following any expiration or termination of Your right to use the Links pursuant to this Agreement for any reason or no reason whatsoever. You will promptly and fully advise DISH of any use of any mark that may appear to infringe the Trademarks (whether in typewritten, stylized or any other form) and/or URLs. You will also fully cooperate with DISH and its Affiliates in the defense and protection of the Trademarks (whether in typewritten, stylized or any other form) and/or URLs, at DISH's and/or its Affiliates' expense. Similarly, nothing in this Agreement shall be construed to require that DISH and/or its Affiliates take any action to protect any of the Trademarks and/or URLs in any instance, and DISH and its Affiliates shall not be liable to You in any manner whatsoever for failure to take any such action.
(xii) You shall not use any Internet search terms (a) that include any of the Trademarks, and (b) for which You have directly or indirectly made any payment or provided any economic benefit of any type whatsoever to any person or entity other than DISH or any of its Affiliates in connection with the placement of any advertising or promotional materials or links thereto on an Internet website.
(xiii) You agree that any breach of Your obligations under this Section 16 will cause substantial and irreparable harm and injury to DISH for which monetary damages alone would be an inadequate remedy, and which damages are difficult to accurately measure. Accordingly, You agree that DISH shall have the right, in addition to (and without limitation of) any other rights and remedies available to DISH at law, in equity, under contract or otherwise (all of which are hereby expressly reserved), to obtain immediate injunctive relief (without the necessity of posting or filing a bond or other security) to restrain the threatened or actual violation hereof by You, Your Affiliates, employees, independent contractors, subcontractors, agents or sub-agents, as well as other equitable relief allowed by the federal and state courts. The provisions of this clause (xiii) shall survive expiration or termination of this Agreement (for any reason or no reason whatsoever) indefinitely.
17. INDEMNIFICATION
You shall indemnify, defend and hold DISH and its Affiliates, and its and their respective officers, directors, employees, agents and shareholders, and its and their respective assigns, heirs, successors and legal representatives (collectively, the .DISH Group.) from and against any and all claims and resulting damages and costs (including without limitation, reasonable attorneys. fees) arising out of or in connection with Your performance or failure to perform under this Agreement (including without limitation any breach or alleged breach of Your representations, warranties, covenants or obligations under this Agreement, or Your negligence or other wrongful conduct). In the event of any claim for indemnification by the DISH Group under this Section 17, the DISH Group shall be entitled to representation by counsel of its own choosing, at Your sole cost and expense. The DISH Group shall have the right to the exclusive conduct of all negotiations, litigation, settlements and other proceedings arising from any such claims and You shall, at Your own cost and expense, render all assistance requested by DISH in connection with any such negotiation, litigation, settlement or other proceeding. The provisions of this Section 17 shall survive expiration or termination of this Agreement (for any reason or no reason whatsoever) indefinitely.
18. LIMITATION OF LIABILITY
IN NO EVENT SHALL DISH OR ANY AFFILIATE OF DISH BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES TO YOU OR ANY OF YOUR AFFILIATES, OR YOUR OR THEIR OFFICERS, DIRECTORS, MEMBERS, MANAGERS OR SHAREHOLDERS (WHETHER FORESEEABLE OR BASED ON NEGLIGENCE OR OTHERWISE). AS A MATERIAL CONDITION OF ENTERING INTO THIS AGREEMENT, YOU AGREE THAT DISH'S AGGREGATE LIABILITY SHALL BE LIMITED TO THE GREATER OF (I) ONE HUNDRED DOLLARS ($100.00); OR (II) THE TOTAL AMOUNT OF REFERRAL FEES PAID BY DISH TO YOU DURING THE FIRST SIX (6) MONTH PERIOD FOLLOWING THE DATE ON WHICH DISH APPROVED YOUR APPLICATION IN WRITING. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 18 AND IN SECTION 13(ii), DISH SHALL HAVE NO LIABILITY OR OBLIGATION WHATSOEVER TO YOU UPON TERMINATION OF THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 18 SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT (FOR ANY REASON OR NO REASON WHATSOEVER) INDEFINITELY.
19. INDEPENDENT CONTRACTOR RELATIONSHIP
The relationship of the parties hereto is that of independent contractors. Participation in this Program does not constitute an employment, broker or agency relationship between you or any of your Affiliates on the one hand, and DISH or any of its Affiliates on the other hand, nor does it create any partnership, joint venture, franchise, or sales representative relationship between the parties.
20. INSURANCE
At all times during the term of this Agreement, You shall, at Your sole cost and expense, maintain in force, policies of insurance issued by reputable carriers, covering insurable risks in connection with Your performance under this Agreement with limits and deductibles that are reasonable and adequate for business involved in Internet marketing, promotion and advertising activities, or with limits and deductibles that may otherwise be set forth in Policies at Any Time in DISH's Sole Discretion upon notice to You.
21. NOTICES
(i) You. Any notice to be given to You pursuant to this Agreement shall be in writing and sent by: (i) certified U.S. mail (postage prepaid); (ii) overnight courier service (charges prepaid), to You at the address provided in Your Application, or such other address as You may designate via the contact information change function on the Program Site; (iii) with respect to notification pursuant to Section 2 and Section 13, via e-mail to the e-mail address provided in Your Application; or (iv) with the exception of notification given pursuant to Section 13 or Section 14, any method of mass communication reasonably directed to the Program's participant base, including without limitation posting of one or more Policies to the Program Site or e-mail blast. It is Your sole responsibility to keep informed of all Policies posted to the Program Site.
(ii) DISH. All notices to be given to DISH under this Agreement shall be in writing, signed by You, and sent by certified U.S. mail, postage prepaid to the following addresses or such other address(es) as DISH may designate by providing notice to You:
To DISH:
DISH Network L.L.C.
Attn: Vice President of Marketing
P.O. Box 6645
Englewood, CO 80155
With a copy to:
DISH Network L.L.C.
Attn: Office of the General Counsel
P.O. Box 6655
Englewood, CO 80155
The provisions of this Section 21 shall survive termination of this Agreement (for any reason or no reason whatsoever) indefinitely.
22. MODIFICATIONS
DISH reserves the right to modify the terms and conditions of this Agreement at Any Time in its Sole Discretion upon three (3) days prior written notice to You. If any modification is unacceptable to You, Your sole recourse is to terminate this Agreement. Your continued participation in the Program after notice of modification of any of the terms and conditions of this Agreement shall constitute Your binding acceptance to such modification(s).
23. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Colorado without giving any effect to its conflict of law provisions. Any and all disputes arising out of, or in connection with this Agreement, including without limitation its termination, shall be litigated solely and exclusively before the U.S. District Court for the District of Colorado; provided, however, in the event that the U.S. District Court for the District of Colorado does not have subject matter jurisdiction over any such dispute, such dispute shall be litigated solely and exclusively before the appropriate state court of competent jurisdiction located in the City and County of Denver, Colorado. The parties hereto hereby consent to personal jurisdiction of the U.S. District Court for the District of Colorado and the appropriate state court located in the City and County of Denver for the purposes set forth in this Section 23.
24. WAIVER
With the sole exception of modifications by DISH pursuant to Section 22, the failure of any party to insist upon strict performance of any provision of this Agreement (including without limitation this Section 24) shall not be construed as a waiver of any subsequent breach of the same or similar nature. In addition to (and without limitation of) the foregoing, neither course of dealing between the parties nor the failure of DISH or any of its Affiliates to insist upon strict performance of any provision of any agreement between DISH and/or any of its Affiliates on the one hand and another participant in this Program on the other hand (irrespective of the length of duration of such course of dealing or failure), shall be construed as a waiver of DISH's right to insist upon strict performance by You of any and all of Your representations, warranties, covenants, duties and obligations hereunder. In addition to (and without limitation of) the foregoing, the election of certain remedies by DISH or any of its Affiliates with respect to the breach or default by another participant in this Program or any agreement between DISH and/or any of its Affiliates on the one hand and such other participant on the other hand shall not be deemed to prejudice any rights or remedies that DISH may have at law, in equity, under contract (including without limitation this Agreement) or otherwise with respect to a similar or different breach or default hereunder by You (all of which are hereby expressly reserved). For the avoidance of doubt (and without limitation of any of the foregoing), this Section may not be modified or amended, either in whole or in part, in any manner whatsoever other than through written notice to You by DISH in accordance with Section 22.
25. POWER AND AUTHORITY
You represent and warrant to DISH that You have the full power and authority to enter into this Agreement and perform Your obligation hereunder and that Your execution and delivery of this Agreement and performance of Your obligations hereunder does not and will not violate any Laws or result in a breach of, or default under, the terms and conditions of any contract or agreement by which You is bound.
26. ASSIGNMENT
This Agreement is binding upon the heirs, legal representatives and successors of DISH and You. You shall not transfer or delegate any of Your obligations hereunder. In addition to (and without limitation of) the prohibition against assignment of payments set forth in Section 8, this Agreement may not be assigned by either party, except that DISH may assign this Agreement to any of its Affiliates, in whole or in part at Any Time in its Sole Discretion without Your consent. Any attempted transfer, delegation or assignment in violation of the provisions of this Section 26 will be void and this Agreement shall automatically terminate.
27. INTERPRETATION
This Agreement shall be deemed a mutual agreement and shall not be construed and/or interpreted in favor or against either party on the basis of preparation of the Agreement.
28. TITLES AND HEADINGS
The titles and headings of sections and subsections of this Agreement are for convenience only and shall not be construed to define or limit any of the terms herein or affect the meaning or interpretation of this Agreement.
29. SEVERABILITY
The parties agree that each provision of this Agreement shall be construed as separable and divisible from every other provision and that the enforceability of any one provision shall not limit the enforceability, in whole or in part, of any other provision hereof. If any one or more of the provisions contained herein, or the application thereof to any person, entity, or circumstance, for any reason are held to be invalid, illegal, or unenforceable in any respect, then such provision(s) shall be enforced to the maximum extent permissible, and the remaining provisions of this Agreement shall be unaffected thereby and will remain in full force and effect.
30. REMEDIES CUMULATIVE
The rights and remedies herein provided to DISH in case of default or breach of this Agreement by You are cumulative and without prejudice to any other rights or remedies that DISH may have by reason of such default or breach by You at law, in equity, under contract or otherwise (all of which are hereby expressly reserved).
31. CONSENT TO RECEIVE COMMUNICATIONS
You acknowledge that this Agreement serves as Your express written consent to receive e-mail, facsimile or other communications from DISH and/or any of its Affiliates, including without limitation, communications that contain unsolicited advertisements. This written consent shall include (without limitation) all such communications regulated by future Federal Communications Commission action.
32. FORCE MAJEURE
Notwithstanding anything set forth to the contrary in this Agreement, neither party shall be liable to the other party for its failure to fulfill any of its obligations hereunder if such failure is caused or arises out of an act of force majeure including without limitation Acts of God, war, riot, terrorism, natural disaster, technical failure (including without limitation of all or any part of the Website, any communications satellite or transponders on which DISH Network programming or other services are delivered to DISH Network subscribers, or of related uplinking or other equipment) or any other reason beyond the reasonable control of the party whose performance is prevented during the period of such occurrence.
Revised 01/14/2010
|
|
