This Affiliate Partners Agreement (the "Agreement") contains the complete terms and conditions that apply to your participation as a Affiliate Partner ("you," "your," yours," or "Affiliate Partner") in the Affiliate Network of The India Club, Inc. ("Indiaclub.com"), and the establishment of links from your web site(s) (the "Affiliate Partner Site") to our web site located at the http://www.indiaclub.com (the "Indiaclub.com Site").

In consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

1. LINKS AND CONTENT.

a. Links. As promptly as practicable after the date hereof, Indiaclub.com will make available to you via its "Indiaclub.com" site located at http://www.Indiaclub.com (the "Indiaclub.com Site") (i) graphic and/or textual links, which will establish a direct hyperlink connection from the Affiliate Partner Site to the Indiaclub.com Site (each of which is referred to herein as a "Link "), and (ii) certain Indiaclub.com Content (as defined in Section 4 hereof). The Links may include, without limitation, a graphic of the Indiaclub.com search box which, when "clicked" or selected by a user of the Affiliate Partner Site, will enable such user to access the Indiaclub.com Site to conduct searches thereon for the availability of book and related merchandise ("Book Merchandise "). Subject to the terms and conditions hereof, in your discretion, you shall display during the duration of this Agreement some or all of the Links and Indiaclub.com Content on the Affiliate Partner Site as promptly as practicable after such Links and Indiaclub.com Content are made available by Indiaclub.com. You agree to reproduce, and agree not to remove or obscure, any proprietary rights legends (such as copyright notices, among others) or license terms and conditions included with any Indiaclub.com Content provided in connection with this Agreement.
b. Agreements Regarding Links.
i. You agree that you will cooperate fully with Indiaclub.com in order to establish and maintain the Links. You also agree to display on the Affiliate Partner Site only those Indiaclub.com-branded images or Indiaclub.com Content (indicating a Link) which are provided, or approved in writing, by Indiaclub.com, and will substitute such images with any new images provided by Indiaclub.com from time to time throughout the Term of this Agreement. You shall display such images prominently in relevant sections of the Affiliate Partner Site. Indiaclub.com will be responsible for providing link access in connection with each Link.
ii. You agree that the Affiliate Partner Site will not in any way copy or resemble the look and feel of the Indiaclub.com Site, nor will you create the impression that the Affiliate Partner Site is the Indiaclub.com Site or is a part of the Indiaclub.com Site. You also agree that the Affiliate Partner Site will not contain any content of the Indiaclub.com Site or any materials which are proprietary to Indiaclub.com, except (i) materials which are obtained by you via the Indiaclub.com Site in accordance with the provisions hereof or the policies or instructions thereon, and (ii) pursuant to the license from Indiaclub.com set forth in Section 5(a) hereof. You further agree that (i) the Affiliate Partner Site domain name(s) do not and will not contain the word Indiaclub.com or any variation thereof (collectively, the " Indiaclub.com Marks"), and (ii) that you will not purchase or otherwise contract with a third party to exploit any of the Indiaclub.com Marks for the purpose of causing the Affiliate Partner Site to appear as a search result or for any other reason.

2. RESPONSIBILITIES OF INDIACLUB.COM.

Order Fulfillment. Indiaclub.com will be solely responsible for processing every order placed by a Linked User (defined below), for tracking the volume and amount of sales of Indiaclub.com Products (defined below) generated by a Linked User, and for providing information to you regarding Indiaclub.com Product sales statistics of Linked Users. Indiaclub.com will be responsible for order entry, payment processing, shipping, cancellations, returns, and related customer service for such sales of Indiaclub.com Products. As used herein, " Indiaclub.com Product " shall include all of the following merchandise categories (more particularly described below) offered for sale by or on behalf of Indiaclub.com on the Indiaclub.com Site" books, Music, Multimedia, Paintings; and "Linked User " shall mean a user of the Affiliate Partner Site who connects directly to the Indiaclub.com Site via a Link and, prior to leaving or otherwise terminating an active browsing session with the Indiaclub.com Site, purchases a Indiaclub.com Product using the check out process located on the Indiaclub.com Site.

3. APPLICATION FOR ESTABLISHING INDIACLUB.COM ACCOUNT.

If you have not done so already, you shall submit a complete Affiliate Network Application for the Affiliate Partner Site via the Indiaclub.com Site (the "Application"). The purposes of the Application shall be, among other things, (a) to enable you access to the Indiaclub.com Site to obtain Links and Content, and (b) to establish a Affiliate Partner account and unique source identification code to enable Indiaclub.com to track purchases made by Linked Users. The Affiliate Partner shall be responsible to maintain the accuracy of the information it has provided to Indiaclub.com on the Application by updating the information on the Indiaclub.com Site. Indiaclub.com may rely upon the information about you on the Indiaclub.com Site as accurate and complete. If any term or condition contained in the Application conflicts with the terms of this Agreement, the terms of this Agreement shall govern.

4. SITE RESPONSIBILITY.

a. Each party will be solely responsible for the development, operation and maintenance of its site and for all materials that appear on its site. Such responsibilities include, but are not limited to:
i. ensuring the technical operation of its site and all related equipment;
ii. ensuring the accuracy and appropriateness of materials posted on its site;

b. Each party disclaims all liability for all such matters with respect to the other party's site.
c. For purposes herein,
i. "Content" shall mean Indiaclub.com Content or Affiliate Partner Content, as the case may be.
ii. "Indiaclub.com Content " shall mean proprietary content of Indiaclub.com contained on the Indiaclub.com Site, or content contained on the Indiaclub.com Site which Indiaclub.com has the right to sublicense to you as contemplated herein. In no event shall the term Indiaclub.com Content be deemed to include any content created or transmitted by users of the Indiaclub.com Site.
iii. "Affiliate Partner Content" shall mean your proprietary content contained on the Affiliate Partner Site, or content contained on the Affiliate Partner Site which you have the right to sublicense to Indiaclub.com as contemplated herein (if any). In no event shall the term Affiliate Partner Content be deemed to include any content created or transmitted by users of the Affiliate Partner Site.

5. LICENSES.

a. Subject to the terms and conditions of this Agreement, Indiaclub.com hereby grants to you a non-exclusive, non-transferable, revocable and limited license to reproduce and display the Indiaclub.com trademarks and logos provided by Indiaclub.com to you hereunder (the "Indiaclub.com Trademarks ") and Indiaclub.com Content in connection with the display of the Links and as otherwise contemplated in this Agreement. Such license may be revoked in whole or in part by Indiaclub.com in its sole discretion by written notice to you. Furthermore this license shall terminate upon the effective date of the expiration or termination of this Agreement, and you shall immediately cease using and remove all Indiaclub.com Trademarks and Indiaclub.com Content from the Affiliate Partner Site and any other of your materials.
b. Subject to the terms and conditions of this Agreement, you hereby grant to Indiaclub.com a non-exclusive, non-transferable, limited license to reproduce and display all Affiliate Partner logos, trademarks, trade names and similar identifying material provided by you hereunder (the "Affiliate Partner Trademarks ") for Indiaclub.com to refer to you as a participant in the Indiaclub.com Affiliate Network. Such license shall terminate upon the effective date of the expiration or termination of this Agreement, and Indiaclub.com shall immediately cease using and remove all Affiliate Partner Trademarks from the Indiaclub.com Site and any other Indiaclub.com materials.

6. CONSIDERATION.

a. As used herein, the following capitalized terms shall have the following meanings ascribed thereto:
i. "Net Sales Revenue" shall mean the gross revenue actually received by Indiaclub.com from a Linked User in connection with a Qualifying Purchase (as defined below) during the Term less (i) applicable sales taxes, duties, gift-wrapping fees, shipping fees, handling fees and other similar charges (ii) losses due to credit, charge and debit card fraud and bad debt, (iii) credits for returned goods, cancelled orders, and out of print/production items (iv) the face value of any coupon or other discount applied by such Linked User to such Qualifying Purchase. All available and eligible Indiaclub.com Products on the Indiaclub.com Site will be included in the computation of Net Sales Revenue (as defined below), regardless of whether the item is a "fast delivery" or "special order" item.
ii. "Qualifying Purchase " shall mean a purchase of a Indiaclub.com Product during the Term by a Linked User for which Indiaclub.com Product has received full payment and was (I) shipped by Indiaclub.com and (ii) not returned by such Linked User.
iii. "Qualifying Purchase Referral Fee" shall mean the fee payable by Indiaclub.com to you as set forth in Section 6(b) hereof for each Qualifying Purchase during the Term.

b. Qualifying Purchase Referral Fee.
i. For each Qualifying Purchase made during the Term, you shall be entitled to receive from Indiaclub.com a Qualifying Purchase Referral Fee based on the type of Indiaclub.com Product sold:
1) Books, Music Cd's, Multimedia, Paintings  . If the Qualifying Purchase involves the sale of a Indiaclub.com Product that is a book (excluding college textbooks), the Qualifying Purchase Referral Fee shall be:
(A) Five percent (5%) of related the Net Sales Revenue if such Net Sales Revenue is less than or equal to $50
(B) Six percent (7%) of related the Net Sales Revenue if such Net Sales Revenue is greater than $50 but <= $100
(C) Ten percent (10%) of related the Net Sales Revenue if such Net Sales Revenue is greater than $100.

c. Payment. Within thirty (30) days after the end of each successive three (3) month period commencing on the first day of the calendar month closest to the date of this Agreement (for example if the date is June 20, then the three (3) month period shall commence on July 1) Indiaclub.com will forward to you any unpaid Qualifying Purchase Referral Fee that in the aggregate exceed twenty-five dollars ($25) (in any event, less any taxes required to be withheld under applicable law) via check along with a statement detailing the basis of such payment.
d. Accounting Information . Indiaclub.com will enable you to enter a password protected area on the Indiaclub.com Site in order to obtain your account information as of a recent date. Such information shall set forth the amount of Net Sales Revenue for the Indiaclub.com Products, the basis of the calculation thereof, the amount of Qualifying Purchase Referral Fee payable to you, if any, for such period and sales tracking information.

7. POLICIES AND CUSTOMER INFORMATION.

Indiaclub.com considers all users who visit the Indiaclub.com Site, including, without limitation, Linked Users, to be customers of Indiaclub.com. Accordingly, all Indiaclub.com rules, policies and operating procedures concerning customer orders, customer service and sales will apply to those customers. Indiaclub.com may change its policies and operating procedures at any time. Indiaclub.com will determine the prices to be charged for books and/or other merchandise sold in accordance with its own pricing policies. Prices and availability may vary from time to time. You shall not include price information in any descriptions on the Affiliate Partner Site. Indiaclub.com will use commercially reasonable efforts to present accurate information, but Indiaclub.com cannot guarantee the availability or price of any particular item. The parties hereto agree that Indiaclub.com shall have no obligation to share any customer information collected by Indiaclub.com, including but not limited to the name, address, e-mail address of the customer, or any titles ordered. Furthermore, to the extent Indiaclub.com shares with you any customer information that is collected by or on behalf Indiaclub.com (e.g., information accessible at the Indiaclub.com Site), you shall maintain such information in confidence as Indiaclub.com confidential and trade secret information in accordance with Section 10 hereof.

8. REPRESENTATIONS AND WARRANTIES.

a. You hereby represent and warrant to Indiaclub.com as follows:
i. This Agreement has been duly and validly executed and delivered by you and constitutes the legal, valid and binding obligation of you, enforceable against you in accordance with its terms.
ii. You are duly organized, validly existing and in good standing under the laws of your State of organization, and have full corporate power and authority to execute, deliver and perform this Agreement.
iii. The execution, delivery and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time or both, conflict with or violate (A) any provision of law, rule or regulation to which you are subject, (B) any order, judgment or decree applicable to you or binding upon your assets or properties, (C) any provision of your organizational documents, or (D) any agreement or other instrument applicable to you or binding upon your assets or properties.
iv. You are the owner or licensee of the Affiliate Partner Trademarks and have all the rights and power to license to Indiaclub.com (A) the Affiliate Partner Trademarks and (B) all materials provided by you to Indiaclub.com hereunder. Furthermore, such license does not and will not (1) breach, conflict with or constitute a default under any agreement or other instrument applicable to you, your assets or properties, the Affiliate Partner Trademarks or the materials provided by you, or (2) infringe upon any trademark, trade name, service mark, copyright or other proprietary right of any other person or entity.
v. To the best of your knowledge, no consent, approval or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery and performance of this Agreement or the taking by you of any other action contemplated hereby.
vi. To the best of your knowledge there is no pending or threatened claim, action or proceeding against you, or any affiliate thereof, with respect to the execution, delivery or consummation of this Agreement and, to the best knowledge of you, there is no basis for any such claim, action or proceeding.

9. TERM; TERMINATION.

a. The term of this Agreement will begin upon our acceptance of your Affiliate Network application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination provided that Indiaclub.com may provide written notice to you via e-mail or posting on your Indiaclub affiliate account.
b. You are only eligible to earn the Qualifying Purchase Referral Fee on Qualifying Purchases for which the order occurred during the Term, and such payments earned through the date of termination will remain payable only if the related merchandise orders are not canceled or returned. Indiaclub.com may withhold your final payment for a reasonable period of time, not to exceed three months, to ensure that the correct amount is paid.
c. Upon the effective date of termination or expiration of this Agreement, (i) each party shall return to the other party any confidential information of the other party, and shall immediately cease to use any of the other party's trademarks and Content, and (ii) the rights and obligations of each party hereunder shall terminate; provided, however, that all terms of this Agreement which by their nature extend beyond the termination of this Agreement, including, without limitation, the rights and obligations of the parties hereto under Section 4, Section 6(c) and Sections 10 through 16 hereof, shall survive and remain in effect, and apply to respective successors and assigns.

10. CONFIDENTIALITY.

a. Except as otherwise provided in this Agreement or with the consent of the other party hereto, you and Indiaclub.com each agrees that all information ("Confidential Information") including, without limitation, the terms and conditions of this Agreement, business and financial information, customer and vendor lists and pricing and sales information, concerning you or Indiaclub.com (each herein, a "Disclosing Party"), or any affiliates (by common ownership) of the Disclosing Party, shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by or on behalf of the party receiving such information (each herein, a "Receiving Party") for its own business purposes or for any other purpose. As used herein "Confidential Information" shall not include information that (i) is already known to the Receiving Party at the time such information is obtained from the Disclosing Party; (ii) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by the Receiving Party in violation of this Agreement; (iii) is or becomes available to the Receiving Party on a non-confidential basis from a source, other that the Disclosing Party, which to the knowledge of the Receiving Party is not prohibited from disclosing such information by a contractual, legal or fiduciary obligation; or (iv) has been independently developed by the Receiving Party without violating any of its obligations under this Agreement.
b. Furthermore, notwithstanding anything contained herein to the contrary, Indiaclub.com shall be permitted to share with third party publishers aggregate Indiaclub.com Product sales with respect to Indiaclub.com Products published by such third party publishers.

11. PUBLICITY.

Subject to Sections 5(b) and 10 hereof, neither party shall (i) create, publish, distribute or permit any written material which makes reference to the other party hereto without first submitting such material to the other party and receiving the prior written consent of such party, nor (ii) disclose to the public or any third party the relationship between them or the transactions contemplated by this Agreement without receiving the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Neither party hereto shall issue a press release describing the relationship or the terms of this Agreement without the other party's prior written approval. Neither party shall misrepresent the relationship between the parties hereunder (such as making any reference to any endorsement or sponsorship of the other party) in any communication.

 

12. INDEMNIFICATION.

Affiliate Partner acknowledges that by entering into and performing its obligations under this Agreement, Indiaclub.com does not assume and should not be exposed to the business and operational risks associated with Affiliate Partner's business, or any aspects of the operation or content of Affiliate Partner's web site(s). Accordingly, Affiliate Partner shall defend, indemnify, and hold harmless Indiaclub.com from and against any suit, proceeding, assertion damage, cost, liability, and expenses (including court costs and reasonable attorneys' fees) incurred as a result of claims of customers or other third parties claim against Indiaclub.com and its affiliates, licensors, suppliers, officers, directors, employees and agents arising from or connected with any Affiliate Partner Content or the Affiliate Partner Site (including without limitation any activities or aspects thereof or commerce conducted thereon), Affiliate Partner's misuse of the services provided by Indiaclub.com hereunder or unauthorized modification or use of the services and materials provided by Indiaclub.com hereunder.

14. LIMITATION OF LIABILITY; DISCLAIMERS.


Indiaclub.com 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, Indiaclub.com's aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to you under to this Agreement.

15. NOTICES.

All notices, consents, requests, instructions, approvals, and other communications made, required or permitted hereunder (each herein, a "Notice") shall be given in writing and delivered: (i) by personal delivery, (ii) by electronic mail, (iii) by certified or registered mail (return receipt requested), or (iv) by a nationally recognized courier. If the Notice is to you, it shall be addressed to the electronic or postal address you have provided in the Application or updated on the Indiaclub.com Site; if the Notice is to Indiaclub.com, it shall be addressed to the electronic or postal address set forth on the Indiaclub.com Site. The effective date of such Notice shall be deemed to be the date upon which any such Notice is delivered to the addressee.

16. MISCELLANEOUS.

a. This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without giving effect to the conflict of law principles thereof.
b. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreement, written and oral, with respect thereto.
c. Headings herein are for reference only and shall not affect the meaning of any terms.
d. We may modify any of the terms and conditions contained in this Agreement at any time in our sole discretion. You will be notified by email or a change notice will be posted on the Indiaclub.com Site. Modifications may include, but are not limited to, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Affiliate Network rules. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Network following our notification to you or new agreement on our site will constitute binding acceptance of the change.
e. This Agreement does not constitute either party an agent, legal representative, joint venturer, partner or employee of the other for any purpose whatsoever and neither party is in any way authorized to make any contract, agreement, warranty or representation or to create any obligation, express or implied, on behalf of the other party hereto.
f. This Agreement and the provisions hereof shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their successors and permitted assigns; provided, however, that neither party shall have the right to assign its rights or obligations hereunder to any other person or entity except that Indiaclub.com may assign its rights and obligations hereunder to a subsidiary or affiliate of Indiaclub.com provided that Indiaclub.com remains jointly and severally liable with respect to such obligations.
g. Each provision of this Agreement shall be considered severable and if, for any reason, any provision hereof is determined to be invalid and contrary to, or in conflict with, any existing or future law or regulation by any court or agency having valid jurisdiction, such provision shall be given the maximum permissible effect, and such invalidity or illegality shall not impair the operation or affect the remaining provisions of this Agreement; and the latter shall continue to be given full force and effect and bind the parties hereto and such invalid provisions shall be deemed not to be a part of this Agreement.
h. Neither party shall be liable to fulfill its obligations hereunder, or for delays in performance, due to causes beyond its reasonable control, including, but not limited to, acts of God, acts or omissions of civil or military authority, fires, strikes, floods, epidemics, riots or acts of war.