Dish Systems Affiliate Program Terms and Conditions

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The Dish Systems Affiliate Program Terms and Conditions

THIS AGREEMENT (the "Agreement" ) dated ____________, 2008 (the Effective Date" ), by and between EBN Financial Incorporated DBA Dish Systems., a California corporation ("Dish Systems" ) with its principal place of business at 3053 Edinger Ave, Tustin, California 92780, and ____________________________________________, a business with its principal place of business at __________________________________________________________________________________ (" Company" ). Dish Systems shall be individually referred to as a " Party" , "We", or "our". The terms "Affiliate," "you," and "your" refer to the applicant. Dish Systems and Company together will also be individually referred to as a " Party" or collectively referred to as the " Parties".

This agreement describes the terms and conditions of participation in the EBN Financial Incorporated DBA Dish Systems Affiliate Program. This agreement is between independent parties and does not represent any form of partnership.

RECITALS
A. Whereas, EBN Financial Incorporated DBA Dish Systems is authorized to market and sell various Brand Products and Services as an authorized retailer or marketer of such products and services (the "Business");

B. Whereas, Affiliate desires to enter into a strategic partnership to provide certain marketing services to EBN Financial Incorporated DBA Dish Systems as specified in this Agreement, pursuant to which Dish Systems shall assist the Company to offer certain digital products or services (" Services" ) for sale via the internet, our call center or other direct response programs and EBN Financial Incorporated DBA Dish Systems desires to acquire these services on the terms and conditions herein provided;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in consideration of the mutual promises contained in this Agreement, the parties hereto agree to be legally bound, as follows:

1. Definitions:

For purposes of this Agreement, the following terms shall have the meanings set forth below:

"Activation" means a qualified new customer that activates and continues qualifications for a term of 90 consecutive days in addition to meeting the terms and conditions defined by our partners.

"Advertisements" means privately branded sponsorship message, banner advertisements and buttons developed or agreed upon by Dish Systems promoting the Services for on-line promotions or our call center sales, executed or promoted by the Company.

"Company Site" means the World Wide Web site: www._________________________________.

"Customer" means any new consumer based on the term" s and conditions set forth that purchases any Service from Dish Systems or through one of Dish Systems" suppliers/providers as a result of Dish Systems" efforts.

"Downgraded Service" means a New Customer (see " New Customer" ) that deactivates initial minimum requirements by provider.

"Final Sale" means an order placed for a Service that results in Dish Systems it" s suppliers or suppliers receiving full and complete payment from the Customer for such a product or the collection by Dish Systems of any amounts due from Suppliers as a direct result of the Final Sale of the Services to Customers, less any chargeback from the Supplier.

"Incentive" means monthly payments made based on affiliates efforts to market, promote, and solicit sales of products and offerings from partners of EBN Financial Incorporated DBA Dish Systems.

"New Customer" means a qualified first time partner and/or EBN Financial Incorporated DBA Dish Systems customer who among other requirements agrees to provide valid contact information, valid residential address, major credit card (Visa, MasterCard or American Express) for qualification, and provides a valid social security number for the purposes of credit scoring.

"Order Form" means an on-line purchase process and purchase order form for prospective customers to order Products and services furnished by Dish Systems to the Company.

"Partner" mean those companies furnishing Dish Systems with digital services for resale via direct and indirect channels, such as Affiliate" s Web sites and in-bound call centers.

"Private Label Web Site" means a privately branded web site, provided by Dish Systems to the Company, publishing offers for the Services and the terms and conditions upon which such Services shall be offered for sale.

"Products" means digital products and services, supplied directly or indirectly by Dish Systems that are made available for sale through Company" s channels.

"Provider" mean those companies furnishing Dish Systems with digital services for resale via direct and indirect channels, such as Affiliate" s Web sites and in-bound call centers.

"Sale" means a qualified, installed and activated new customer continuing in good standing with provider that is reported by provider to EBN Financial Incorporated DBA Dish Systems.

"Services" means digital products, supplied directly or indirectly by Dish Systems that are made available for sale through Company's channels.

"Supplier" mean those companies furnishing Dish Systems with digital services for resale via direct and indirect channels, such as Affiliate" s Web sites and in-bound call centers.

2. Terms; Programs; Principal Covenants of the Parties:

2.1 The term of this agreement will begin upon our acceptance of your affiliate application and will end when terminated by either party. Termination may happen at any time, with or without cause, with or without notice to promote offers for Services via the Internet or other direct response programs. Violation of any term within this agreement by the Affiliate will be considered nullification of the agreement at the time of violation. Violation of any terms or conditions within this agreement may result in termination. Any due incentives at the time of termination are considered willfully surrendered to Dish Systems and will not be paid to the affiliate. Including but not limited to section 5 and 7 of this agreement.

3. Modification
We retain the right to modify any of the terms and conditions within this Agreement at any time and at our sole discretion by posting a Change Notice, a new agreement on " our" site or by written notice at the address provided by company herein. These modifications may include, but are not limited to changes in the scope of your available incentive plan, payment procedures and program rules. If any of the modifications are unacceptable to you, your only recourse is to terminate this Agreement. Continued participation in the program following the posting or written notification of a Change Notice or new agreement will be considered as acceptance of the change.

4. The Responsibilities of Dish Systems:

4.1 On the Effective Date or on such other date as is mutually agreed upon by the Parties, Dish Systems may develop a Private Label Web Site, as agreed herein and described in Attachment A, and/or assist Company to provide links or access to Dish Systems applications and/or call center resources. Dish Systems shall provide to the Company supplemental information regarding the Products promoted by Company on the Company Site and its other channels, including updated and other promotional information, within fourteen (14) business days of creation or changes to any such information. Dish Systems shall also provide to the Company, upon reasonable request, technical literature pertaining to the Services, to the extent that such literature is available from the Suppliers.

4.2 Dish Systems shall be responsible for the procurement of Services from its digital services Suppliers. Services may be ordered together with, as appropriate, (i) any equipment required by the Suppliers pertaining to the operation and maintenance of the products; (ii) the terms and conditions of the service plans offered by the Suppliers in connection with such products; and (iii) any material provided by the company pertaining to such products.

4.3 Dish Systems shall establish prices for agreed upon Services at its sole discretion. Dish Systems and its suppliers shall have the sole right and it shall be in their sole discretion to reject any customer orders for Services submitted by Company to Dish Systems.

4.4 Dish Systems shall remit incentive payments to the Company in accordance with Section 10 hereof, subject to the Company" s fulfillment of its obligations, as set forth in Section 5 herein.

4.5 Dish Systems Incorporated will be solely responsible for tracking sales through the use of proprietary and/or 3rd party software. Dish Systems strives to ensure accurate tracking of referrals made by affiliates.

Notwithstanding the above statement of responsibility by Dish Systems to track sales; affiliates hereby acknowledge and accept that the tracking system employed by Dish Systems is not 100% accurate and that there may on occasion be instances of referral sales made that are not credited to an affiliate for any of the following possible reasons:

* Failure by the affiliate to use the proper format of the specially assigned URL in promotions, web page links, banner ads, and other online marketing content.
* Deliberate or accidental actions by customers to circumvent an affiliate's special URL causing our systems to be unable to accurately track that sale.
* Bugs, glitches or crashes of the tracking software that render it unable to accurately track sales for a period of time.
* Acts of nature that cause irretrievable data loss on the computers and back-up disk media that store the commission information.

As such, affiliates agree not to hold Dish Systems liable for compensation for any claimed incentives that were not tracked and recorded by the tracking software.

5. The Responsibilities of the Company:

5.1 The Company shall actively promote the Services during the Contract Term as described in Sections 2 and 6. Any promotion must conform in all respects to any content, design and functionality specifications provided by Dish Systems to the Company. Any amendments, supplements or modifications that the Company proposes to make with respect to the promotion of the Services shall be subject to the prior written approval of Dish Systems, such approval not to be unreasonably withheld.

5.2 Both Parties shall use best efforts to promptly report to the other Party any malfunctions adversely affecting the other Party" s sites, as it relates to their ability to sell the agreed upon products, and shall take all actions reasonably required to restore appropriate functionality.

5.3 Affiliates will themselves be solely responsible for ensuring that they properly implement tracking codes in URLs, provide correct Promotional Codes and toll-free information to ensure Dish Systems ability to track referral sales.

5.4 The Company shall promote offers only for the Services pursuant to the terms of this Agreement, as described in Attachment B. Services available shall be amended from time to time to reflect modifications with respect to the Services approved and available for promotion by Company as such shall be mutually agreed upon by the Parties.

5.5 The Company shall not make representations regarding the Services, other than those approved in writing by Dish Systems or its Suppliers, Dish Systems shall not be bound by any unauthorized representations or warranties regarding the Services that are made by the Company.

5.6 The Company shall promptly notify Dish Systems of any information pertaining to any defects in Services and any Customer complaints it receives regarding such Services.

5.7 The Company shall comply in all material respects with all international, federal, state and local laws and regulations pertaining to the privacy of visitors to the Company Site, including, by way of example and not limitation, all anti-spamming laws, and shall include a prominent and easy means for purchasers to " opt-out" of receiving any future commercial communications from the Company. The Opt-out alternative shall also be prominently displayed on any sites that Dish Systems may make available for Company.

5.8 The Company must not violate any laws including any applicable government statutes, laws, rules, regulations, ordinances, codes, directives, or orders during the promotion of the products and services of Dish Systems Incorporated including but not limited to phone solicitation, direct mail, distribution of promotional materials etc. Additionally, all materials and other communications in the course of promoting the products and services of the Dish Systems and/or its partners must identify the affiliate by individual company/name.

5.9 The Company including officer" s, agent" s, sub contractors, and employees will be required if named to indemnify and hold harmless any actions included in this agreement but not limited by this agreement by company deemed by Dish Systems, Suppliers" or Governmental Agency/s to be harmful, illegal, or deemed not in the best interest of said companies.

5.10 The Company agrees that during the Contract Term of this Agreement, it shall not provide links or advertising to any digital products or services that compete with or are substantially similar to the Services, other than those procured through Dish Systems.

6.0 Acceptable Marketing Tactics
Acceptable methods of marketing may include:

6.1 Banner Ads
Placement of banner ads on the approved affiliate" s website(s) (as disclosed in writing to Dish Systems) or other web sites that do not include unacceptable/objectionable content as detailed in the Web Site Restrictions section herein.

6.2 Search Engine Marketing
Affiliates may not bid on trademarked terms related to company-held trademarks and service marks, including but not limited to Dish Systems, Dish-Systems.com, Dish-Network.com, and other similarly worded terms. Affiliates are required to comply with EBN Financial Incorporated DBA Dish Systems current negative keyword list at all times. Affiliates may also be restricted from bidding on partner/competitor-related trademarked terms as specified within and provided with acceptance of this agreement by Dish Systems.

6.3 Additional Means of Marketing
We encourage our affiliates to consider any type of promotion to market our offers including newsletters, classified ads, word-of-mouth, print advertisements or other similar tactics. Affiliate must provide a marketing plan detailing the promotional vehicle and target audience to Dish Systems and receive written approval prior to the start of any marketing campaign. Affiliate must provide creative proof for any advertisement not provided by Dish Systems or any modified version of creative provided by Dish Systems.

7.0 Unacceptable Marketing Methods

7.1 Trademarked Terms (Partners)
The following terms may not be used in domain names or as key word selections for search advertising. See attachment "C" and "D" for complete list to trademarked terms/Negative Keyword List.

" DIRECTV"	" www.directtv.com"	" www.getdirectv.com"	" www.direc.tv"
" Direct TV"	" www.directtv-com"	" www.officialdirectv.com"	" www.direct.tv"
" Directtv"	" www.direct-tv.com"	" www.directvsatellite.com"
" Direct-TV"	" www.direc-tv.com"	" www.directvdish.com"

7.2 Email Marketing
Affiliates MAY NOT promote our offers through email marketing without receiving prior written approval from Dish Systems after providing documentation detailing their email marketing campaign strategy, subscriber management and acquisition practices. All email marketing creative must also be reviewed and approved by Dish Systems prior to the campaign launch.

7.3 Telemarketing
We will not accept any affiliate partner that attempts to market our merchant/supplier products and/or services through phone solicitation. Any affiliate identified utilizing any type of messaging, press " 1" or any other telemarketing tactics. Violation of this policy is subject to punitive actions by Dish Systems, without notice, including but not limited to: suspension of affiliate account; termination of affiliate account; withholding of payments to affiliate; and public notification of affiliate's suspected malfeasance. Dish Systems encourages affiliates to report suspicions of such relationships; and, should substantial proof, as judged by Dish Systems, be provided, Dish Systems reserves the right to assign a value equal to unpaid monies earned by the offending affiliate (or a part thereof) to the reporting affiliate as a incentive.

7.4 Be aware that ANY marketing, including door-to-door marketing, requires full compliance with any/all state, federal, local, city, county and/or municipal laws or ordinances. Affiliates must disclose all marketing tactics to Dish Systems in advance of usage.

7.5 Spam/Unsolicited Commercial Email (UCE)
Dish Systems Incorporated in no way participates in mass unsolicited emailing (i.e. spamming). All affiliates are expected to adhere to this policy. Violation of this policy is subject to punitive actions by Dish Systems, without notice, including but not limited to: suspension of affiliate account; termination of affiliate account; withholding of payments to affiliate; and public notification of affiliate's suspected malfeasance. Dish Systems encourages affiliates to report suspicions of such relationships; and, should substantial proof, as judged by Dish Systems, be provided, Dish Systems reserves the right to assign a value equal to unpaid monies earned by the offending affiliate (or a part thereof) to the reporting affiliate as a incentive.

7.6 Spyware and other Parasitic Software
Any affiliate suspected of a relationship, formal or informal, with any provider of spyware or parasitic software (as judged by any interference with the operation by design of Dish Systems and/or its partner sites) is subject to punitive actions by Dish Systems, without notice, including but not limited to: suspension of affiliate account; termination of affiliate account; withholding of payments to affiliate; and public notification of affiliate's suspected malfeasance. Dish Systems encourages affiliates to report suspicions of such relationships; and, should substantial proof, as judged by Dish Systems, be provided, Dish Systems reserves the right to assign a value equal to unpaid monies earned by the offending affiliate (or a part thereof) to the reporting affiliate as a incentive.

8.0 Order Processing
Dish Systems will be responsible for processing every order placed by a customer through our web sites or related toll-free numbers. Customers who purchase products and services through Dish Systems Affiliate Program will be deemed to be customers of Dish Systems Incorporated and the related service provider/brand partner. Prices and availability of products and services may vary from time to time. Dish Systems policies will always determine the price paid by the customer. Dish Systems reserves the right to reject any order that does not comply with our or supplier rules, operating procedures and/or policies.

9. Billing; Installation; Service; and Customer Support:

9.1 Service Suppliers/Partners will be responsible for billing for the Services and payment collection. Dish Systems shall have no billing or collection obligation, unless otherwise agreed by the Parties.

9.2 Dish Systems/Partners/Suppliers shall provide customer support to purchasers of the Services at a level consistent with that which it provides to customers who purchase comparable services via Dish Systems" own distribution channels. Customer and technical support activities may be provided, under certain circumstances, by one or more of the Suppliers. The Company shall direct inquiries relating to customer support services to Dish Systems.

10. Payments:

10.1 Incentive Plan

Incentive Payments can only be earned between the acceptance of the Affiliate application and notice of termination. Incentives will NOT be earned on orders placed for the personal or business use of the affiliate, his or her immediate family, or others whose relationship is judged by Dish Systems to constitute self-referral. Such action is cause for affiliate TERMINATION from the program. Judgments on these matters will be left solely to the discretion of Dish Systems. 10.2 Payment Terms - Affiliate
Incentive payment for any sale will only be made once a sale has been approved by Dish Systems/Partner/Provider. In order for an affiliate incentive to be approved, the customer must complete the order process including installation as confirmed by the service provider/partner. Incentive may be charged-back to the affiliate if the customer does not maintain their service account in good standing/deactivates/ or downgrades from original qualified programming within 90 days after the date of sales confirmation. The tiered incentive plan will be paid monthly based on the calendar month (Example January" s potential payable is the 1st through 31st payable on the last day of the following month). If affiliate or Dish Systems terminate this contract for any reason the chargeback period for the affiliate will remain in full effect and the repayment of any incentive paid to the affiliate will remain after termination until such time that the 90 day period has ended on any incentive paid to affiliate during the agreement.

10.3 Tiered Incentive Structure
Tiered incentive structure will be based on total number of monthly customers that complete the order process including installation as confirmed by the service provider/partner and that remain active throughout the 90-day period. Any downgrade (non-payment, deactivation, or downgrade from original qualified programming) on a customer" s service account will count against total activations for the monthly period in which the tiered bonus is being paid. (Example: Total monthly activations were 100: 10 customers chargeback during the same month: The net customers for tiered incentive consideration period is 90). Affiliate incentives will only be paid on sales which are made through qualified Affiliates. Dish Systems' current and/or former employees, their friends, or relatives are PROHIBITED from participating in this program. Failure to provide a verifiable tax ID will result in removal from the program and surrender of any due incentives.

10.4 Payment Schedule

By Physical Check
Incentives paid on confirmed sales will be monthly on the last day of each respective month (Once a month) for the previous month" s referrals if an incentive payment is earned. Any returned checks, charge-backs, or fees from a returned order will be adjusted in the following fee payment. Stop payments or returned checks will incur up to the maximum fees allowed in the state of California. All checks will be sent via U.S. mail (first class postage) only.

By ACH Electronic Funds Transfer
Incentives on confirmed sales will be paid on a monthly basis on the last day of each respective month (Once a month) for the previous month" s referrals.

10.5 Chargeback's
Satellite Television Sales
All affiliate sales are subject to a 90-day chargeback period during which time an affiliate will be billed (charged back) for any paid incentives for accounts that fail to maintain activation for 90 days. The tiered commission structure will be paid monthly based on the calendar month (Example January" s potential payable is the 1st through 31st payable on the last day of the following month). Tiered commission structure will be based on total number of monthly customers that complete the order process including installation as confirmed by the service provider and that remain active throughout the 90-day period. Any downgrade (non-payment, deactivation, or downgrade in service) in a customer" s service account will count against total activations for the monthly period in which the tiered bonus is being payed. (Example: Total monthly sales/activations were 100: 10 customers deactivate during the same month: The net customers for tiered bonus consideration period is 90). If the chargeback rate exceeds the acceptable rate of 2% in a calendar month, the affiliate may be subject to chargeback on all paid incentives for that month if applicable. If affiliate or Dish Systems terminate this contract for any reason the chargeback period for the affiliate will remain in full effect and the repayment of any incentive paid to the affiliate will remain after termination until such time that the 90 day period has ended on any incentive paid to affiliate during the agreement.

11. Non-Disclosure of Proprietary Information:
11.1 Both Parties acknowledge that during the Contract Term of this Agreement they may come into possession of or become acquainted with certain Proprietary Information (as hereinafter defined) of the other party. The term " Proprietary Information" shall mean all information of a private, secret or confidential nature including but not limited to (i) information related to the disclosing party" s business, (ii) business relationships or financial affairs, whether or not marked or otherwise designated as " confidential" or " proprietary" , (iii) or with a similar legend indicating its proprietary nature. By way of illustration, but not limitation, Proprietary Information shall include the back-end order fulfillment process developed and utilized by Dish Systems in connection with the fulfillment of purchase orders for the Services, information concerning the terms of Dish Systems" strategic partnerships with digital service and product providers, and all inventions, products, processes, methods, techniques, formulas, compounds, project, developments, research data, source code, financial data, personnel data, computer programs, customers and supplier lists, and contacts at or knowledge of customers or prospective customers of Dish Systems. The terms of this Agreement shall be treated as Proprietary Information.

11.2 The term " Proprietary Information" shall not include information that: (i) is or becomes generally known or available by publication or otherwise through no fault of the receiving party; (ii) is already rightfully in the receiving party" s possession without restriction prior to its receipt from the disclosing party; (iii) is independently developed or learned by the receiving party; or (iv) is lawfully obtained by the receiving party from a third party that has the right to make such disclosure.

11. 3Disclosure/Use Restrictions. Neither Party shall, directly or indirectly disclose (i) Proprietary Information to any person or entity other than its employees and contractors, and then only in the event that such employees and contractors need access to the Propriety Information for the respective Partners to fulfill their obligations in accordance with the definitive agreement, and agree in writing to be bound by the terms of this Section 11; or (ii) Proprietary Information for its own benefit or the benefit of any other person or entity, except as specifically authorized by the other Party.

11.4 Required Disclosures. In the event that a Party is required by the applicable law, rule or regulation, or pursuant to the order of any court or governmental authority of competent jurisdiction to disclose Proprietary Information of the other Party, such Party shall use commercially reasonable efforts to (i) provide the other Party with at least ten (10) business days prior written notice of such disclosure and (ii) limit such disclosure to the extent practicable.

11.5 Remedies. Each Party hereto acknowledges that breach of this Section 11 would cause irreparable harm to the other Party and/or its Suppliers for which monetary damages alone would be an inadequate remedy. For this reason, the Parties hereto agree that in the event of a breach or a threatened breach of this Section 11, the non-breaching Party and/or its Suppliers shall be entitled to the entry, by a court of competent jurisdiction, of a temporary restraining order, injunction or similar relief, as well as reimbursement of reasonable attorneys" fees or other costs incurred in obtaining such relief. Nothing in this Section 11 shall be construed as prohibiting either Party and/or its Suppliers from pursuing other remedies available at law or in equity against the breaching party or any other person or entity.

12. Ownership; Non-Solicitation; Non-Competition:

12.1 Ownership:

a. All tangible information, including but not limited to any drawings, designs, information or specifications submitted by Dish Systems to the Company, shall at all times be deemed to be the property of Dish Systems. If Dish Systems provides Company with a Private Label site, the site, along with all designs, content and software associated with the site shall be deemed to be the sole property of Dish Systems.

b. "Customer Data" shall mean customer information obtained by the Parties in connection with the sale of the Services pursuant to this Agreement. Customer Data shall not include any information about customers that either Party possesses independently of the other Party, or is obtained by either Party from a source besides the other Party. Company shall have, and retain ownership of, Customer Data collected through marketing and sales channels for the purpose of generating sales leads. Dish Systems shall have, and retain ownership of, Customer Data collected at customer qualification, enrollment, registration, installation, service and support of Services. Customer Data used by both Parties for the stated purposes shall be jointly owned.

12.2 Non-Solicitation of Customers. During the Contract Term of this Agreement, and for a period of ninety (90) calendar days thereafter (the " Non-Solicitation Period" ), the Company shall not knowingly take any action to cause any Customer to transfer its then active digital products or services to any other system or carrier for the same or like service. Such prohibited actions include, but are not limited to, providing competitive digital products or service providers or carriers with the name, address, telephone number, email address, or other identifying information relating to any Customer. Information pertaining to Customers shall be deemed to be Proprietary Information subject to Section 11 hereof. Notwithstanding such, the foregoing shall not prohibit the Company from performing general solicitations not specifically targeting Customers via general advertisements and contracting with any person who may respond to such general advertising.

12.3 Non-Competition. The Company shall not purchase inventory or enter into any agreements for the procurement and resale of digital products or services with the Suppliers or any individual or entity offering products or services that are substantially similar to the Services during the Term of this Agreement and for a ninety (90) calendar days thereafter.

13. Grant of License/Copyrights:

13.1 Dish Systems hereby grants to the Company a non-exclusive, non-transferable, non sub-licensable, royalty-free license to use the logo, trademarks or trade names of Dish Systems (collectively, the " Dish Systems Marks" ) solely in connection with the promotion and sale of the Services through the Company Site. The Company acknowledges that the Dish Systems Marks are the sole property of Dish Systems and, other than the license granted herein, nothing shall be construed to grant the Company any right, title or interest in or to the Dish Systems Marks.

13.2 The Company hereby grants to Dish Systems a non-exclusive, non-transferable, non sub-licensable, royalty-free license to use the logo, trademarks or trade names of the Company (collectively, the " Company Marks" ) solely in connection with the promotion and sale of the Services. Dish Systems acknowledges that the Company Marks are the sole property of the Company and, other than the license granted herein, nothing shall be construed to grant Dish Systems any right, title or interest in or to the Company Marks.

13.3 Each Party must approve in writing the form and placement of their respective Marks on any site or materials used to promote the Services; such approval not to be unreasonably withheld or delayed. Each Party may require the other Party to suspend the use of the requesting Party" s Marks should the requesting Party reasonably determine that such use is misleading or inappropriate or fails to comply with its policies regarding the use of its intellectual property.

13.4 The use of the images displayed on our site by you, or anyone else authorized by you, is prohibited unless specifically permitted by Dish Systems. Any unauthorized use of the images or programming code may violate copyright laws, trademark laws, the laws of privacy and publicity, and communication regulations and statutes. We reserve the right to terminate the use of content provided by Dish Systems to the Affiliate Sites at any time. Dish Systems will own all right, title and interest in and to all information that is created or collected in the operation of our site/s.

14. Use of creative material:

14.1 Use of creative provided to affiliates through the Dish Systems affiliate program to promote sales through any channel other than those associated with the Dish Systems affiliate program is strictly prohibited and will result in immediate termination and the surrender of any due commissions to the company.

14.2 Dish Systems Affiliates may NOT purchase domains that are related to company-held trademarks and service marks, including but not limited to Dish Systems, Dish-Systems.com, Dish-Network.com, Dish Systems, and other similarly worded terms. Affiliates may also be restricted from purchasing domains based on partner-related trademarked terms as specified within this Agreement (See trademarked names attachment " d" .) All copyrighted material and trademarked names and logos used in accordance with this Agreement remain the exclusive intellectual property of the respective originating or issuing parties. No transference of intellectual property ownership or conveyance of rights is intended or conferred in this agreement.

DISH Network and the DISH Network logo are the sole property of EchoStar Communication Corporation.

DIRECTV and the DIRECTV logo are the sole property of the DIRECTV.

15. Website Restrictions:

15.1 Dish Systems reserves the right not to accept any site into the Dish Systems Affiliate Program based on site content.

Sites that do NOT qualify for the Dish Systems Affiliate Program include sites that may be found to be:

  X-rated and/or promote sexually explicit materials.
  In promotion of violence and discord.
  In promotion of discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
  In promotion of illegal, morally questionable or controversial activities.
  In violation of intellectual property rights.
Domain masking is not permitted.

16. Representations and Warranties:

Each Party represents and warrants to the other Party the following:

a. Authority; Compliance: The representing Party has all right, title and power necessary to perform its obligations hereunder and is in compliance with all federal, state and local laws material to the conduct of its business and necessary for its performance of this Agreement.

b. No Infringement: The Marks of the representing Party and all content provided by the representing Party or its affiliates for inclusion in any promotional materials distributed by the representing Party and/or in connection with offer and the sale of the Products, do not and will not, to the knowledge of the representing Party, infringe upon or otherwise violate any copyright, trade secret, trademark, patent, invention, privacy, or non-disclosure rights (collectively, the " Intellectual Property Rights" ) of any third party. The representing Party further represents and warrants that it owns or has sufficient rights in and to all of its marks to grant to the other Party the license described in Section 13.

c. No Objectionable Material: The Company Site and any other promotional materials prepared and distributed by the company or its affiliates in connection with the offer and sale of the Services do not and will not contain any material that (i) is intentionally misleading or deceptive, or (ii) is known to be libelous, defamatory, obscene, or pornographic, intended to harass or annoy, or which violates any civil or criminal laws. Web sites utilized by the Company or its affiliates to promote the Services do not, to the knowledge of the Company, link to any site containing material of the type described in the preceding sentence.

17. Disclaimer of Warranties:

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 16 ABOVE, EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, GUARANTEES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICLAR PURPOSE OR INTENDED USE.

18. Indemnification:

18.1 Each Party shall indemnify and hold the other party harmless from and against any and all damages, liabilities, costs and expenses (including reasonable attorney" s fees) arising from or relating to such Party" s breach of any of the representations or warranties set forth in Section 16. Each Party shall (i) defend at its own cost and through counsel of its own choice or (ii) settle, subject to the approval of the other Party, such approval not be unreasonably conditioned, withheld or delayed: any actions or suit against the other for which it is responsible hereunder and shall reimburse the other for reasonable attorney" s fees, interest, costs of suit and all other expenses by the other in connection therewith. Each Party shall notify the other promptly of any claim for which the other is responsible hereunder, and shall cooperate with the other in every reasonable way to facilitate the defense of any such claim.

18.2 The indemnifying Party" s obligations are conditioned upon the indemnified Party (i) providing the indemnifying Party with prompt written notice of any claim, suit or proceeding for which the indemnified Party is seeking indemnity and (ii) reasonably cooperating with the defense or settlement negotiations, as the case may be, conducted by the indemnifying Party.

18.3 LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 5 AND THIS SECTION 18, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, UNDER THIS AGREEMENT OR OTHERWISE, FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, ANTICIPATED PROFITS OR LOST BUSINESS. IN ADDITION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, FOR DAMAGES IN EXCESS OF THE VALUE RECEIVED BY SUCH PARTY UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH A CLAIM FOR DAMAGES AROSE. THE FOREGOING LIMITATIONS SHALL APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS.

19. Independent Contractor:

19.1 Each Party agrees that neither Party is an employee, attorney-in-fact, agent, partner or joint venture of the other Party for any purpose and does not have the authority, actual or implied, to bind the other Party to any contract or obligation, other than to fulfill purchase orders for the Services, to the extent that such products are pursuant to this Agreement. The Company is, and shall be deemed to be, an independent contractor. All costs and expenses of performing a Party" s duties hereunder shall be borne solely by the Party performing such duties.

20. Inspection and Audit:

20.1 Each of the Parties shall maintain records containing information sufficient to verify the completeness and accuracy of its respective accounting and promotional activities that are directly related to this Agreement. Once every fiscal year, with no less than thirty (30) days prior written notice, each Party shall have the right to have an independent auditor examine the books and records of the other Party. The examination shall be conducted during regular business hours. The examination shall be reasonably limited in scope and duration to verify the completeness and accuracy of each Party" s accounting of gross revenue derived from the Final Sale of Services through the Company" s channels. In the event that the Party conducting the audit establishes that an amount is payable to the Party conducting the audit from the other Party, such amount shall immediately be payable if undisputed, or if disputed, may be subject to binding arbitration as described in Section 18.

21. Termination:

21.1 This Agreement shall be terminated:

a. By either Party, at any time with written notice, in the event that the other Party (i) ceases to function as a going concern or to conduct operations in the normal course of business, or (ii) files a petition voluntarily or involuntarily, under any state or federal bankruptcy or insolvency law, which petition has not been dismissed or set aside with sixty (60) days of its filing;

b. By either Party, immediately with written notice, in the event that the other Party (i) has committed any act of fraud or dishonesty against the other Party or other act which may reasonably harm the reputation of the other Party or any of its Suppliers, or (iii) fails to comply with the policies related to this Agreement, of which the such Party has received prior written notice;

c. By either Party in the event that the other Party breaches any material provision of this Agreement and fails to correct such breach if given the chance to correct within fourteen (14) days of its receipt of written notice of such breach.

d. By either Party, at the expiration of the Initial or any Renewal Term, upon written notice provided at least fourteen (14) days prior to the expiration of the Initial Term or any Renewal Term.

e. By Dish Systems, at its sole discretion, provided that it provides the Company written notice of its intent to terminate.

21.2 Effect of Termination. On the effective Date of the termination of this Agreement (i) any incentive payments which have accrued on or before such date shall become due and payable in accordance with Section 10, and (ii) the Company shall immediately cease its promotional activities with respect to the Services and shall no longer hold itself out as a strategic partner of Dish Systems. Dish Systems shall have no liability for payment of any incentives in excess of the incentives accrued to the Company as of the effective date of the Agreement.

22. Assignment. Neither of the Parties may, without the other Parties" prior written consent, which shall not be unreasonably withheld, assign or transfer this Agreement, or any of its rights or obligations under this Agreement to any person (" Assignee" ) except as part of the sale of all or substantially all of the assets of the Party or merger of the Party; provided, however, that the Assignee agrees to fully perform and be bound by the provisions of this Agreement.

23. Notices. All notices permitted or required hereunder shall be in writing and shall be deemed to have been given (i) upon personal delivery; (ii) one (1) day following deposit with an overnight courier that keeps written records of its deliveries; or (iii) three (3) days following deposit as certified mail, return receipt requested, addressed to the party at the address first written above.

24. Governing Law; Consent to Jurisdiction. This Agreement shall be construed and governed by the laws of the State of California, without regard to the conflicts of law provisions thereof.

25. Expenses. Except as otherwise provided herein, each party shall pay its own legal, accounting, out-of-pocket and other expenses incident to this Agreement and to any action taken by such Party in preparation for performing its obligations under this Agreement.

26. Invalidity. In the event that any one or more of the provisions contained herein or in any instrument referred to herein shall, for any reason, be held to be invalid, illegal or unenforceable, the same shall not impair any of the other provisions contained herein which shall be enforced in accordance with their respective terms.

27. Arbitration. Any and all disputes arising out of or in connection with this Agreement shall be finally settled by arbitration in accordance with the rules of the American Arbitration Association. The arbitration proceeding shall take place in the state of California and any award rendered shall be final and binding upon the parties. Judgment of any such award may be entered in any court having jurisdiction over the parties or their assets. The costs of arbitration shall be shared equally by the parties. Each party will pay its own attorney" s fees and costs.

28. Survival. The obligations of the Parties under Sections 2, 5, 16 and 18 shall survive the termination of this Agreement.

29. Construction, Amendments and Waivers. The Agreement, together with any exhibits attached hereto, constitutes the entire agreement of the Parties concerning the subject matter hereof and supersedes all prior agreements, understandings and discussions, whether oral or written, of the Parties. No modification or waiver of this Agreement shall be binding unless such modification or waiver is set forth in a writing that is signed by the Party to be bound thereby. No waiver of any of the provisions of the Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless expressly provided otherwise.

30. Press Releases. Neither Party shall issue any press release or public announcement naming the other Party or the terms of this agreement without the express written consent of the other Party.

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