Affiliate Agreement

This Bernuley Built-In Pet Doors Affiliate Agreement (the “Agreement”) establishes the terms and conditions for the Bernuley Built-In Pet Doors Affiliate Program (the “Affiliate Program”) of StreamComm, LLC d.b.a. Bernuley Built-In Pet Doors. (“Bernuley”).

BY CLICKING ON THE “Sign Up” BUTTON AT THE END OF THE AFFILIATE PROGRAM APPLICATION, THE PERSON OR COMPANY NAMED IN THE APPLICATION (the “Affiliate”) AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.  PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE AGREEING TO ITS TERMS.

1. DEFINITIONS
   
   

   In addition to any capitalized terms defined elsewhere in this Agreement, the following capitalized terms shall have the meaning set forth below:

   “Affiliate Information Site” shall mean the World Wide Web site where Bernuley makes marketing and promotional content, dates, procedures, specifications and other relevant information about the Bernuley Services available to its affiliates (including Affiliate), including the Bernuley Content and Bernuley Marks.

   “Affiliate Site” shall mean the Affiliate's World Wide Web site with its main page located at the URL specified in the Affiliate Program Application.

   “Infringement” shall mean a circumstance where the services, materials, or information provided by a party pursuant to this Agreement infringes upon any copyright, trademark or service mark of a third party.

   “Bernuley Content” shall mean the promotional material and information relating to the Bernuley Services in the form made available by Bernuley through the Affiliate Information Site for Affiliate’s publication on the Affiliate Site to promote the Bernuley Services.

   “Bernuley Marks” shall mean Bernuley™, Built-In Pet Doors™, and any other Bernuley trademarks or service marks that Bernuley makes available to Affiliate on the Affiliate Information Site. 

   “Bernuley Products” shall mean any of Bernuley’s products and services that may be purchased via the Bernuley Site.

   “Bernuley Site” shall mean the area of Bernuley’s World Wide Web site where the Bernuley Services are provided with its main page currently located at www.bernuley.com (aka www.builtinpetdoors.com.)

   “Customer” shall mean a person who links directly from the Affiliate Site to the Bernuley Site and is identified by Bernuley as originating from the Affiliate Site and purchases a Bernuley Product by means of the Bernuley Site.

   “Link” shall mean a hypertext and/or graphical link from the Affiliate Site to the Bernuley Site or from the Bernuley Site to the Affiliate Site.

   “Losses” shall mean direct losses, costs, claims, damages, settlement payments, attorneys’ fees, liabilities, and penalties, court awards and other similar costs and expenses.

   “Marks” shall mean any trademarks or service marks that each party makes available to the other party as part of this Agreement. 

   “Disqualified Purchases” shall mean Qualifying Purchases that are disqualified whenever they occur in connection with a violation of this Agreement or any other terms, conditions, specifications, statements, and policies that we may issue from time to time that apply to the Affiliate Program, including the most up-to-date version of this Agreement (collectively, the “Program Documents”).

   Further, the following purchases that would otherwise be Qualified Purchases are disqualified and excluded from the Affiliate Program:

   1. any Bernuley Product purchased after termination of this Agreement,
   2. any Bernuley Product order where a cancellation, return, or refund has been initiated,
   3. any Bernuley Product purchased by a Customer who is referred to a Bernuley Site through any advertisement that Affiliate purchased through participation in bidding or auctions on keywords, search terms, or other identifiers that include the word “bernuley”, or “built-in pet doors”, or any other Bernuley Marks (or variations or misspellings of any of those words (e.g., “bernuly”, “burnuley”) (all, a “Prohibited Paid Search Placement”),
   4. any Bernuley Product purchased by a Customer who is referred to a Bernuley Site by a link that is generated or displayed on a search engine (including Google, Yahoo, Bing, or any other search portal, sponsored advertising service, or other search or referral service, or any site that participates in such search engine’s network) (a “Search Engine”),
   5. any Bernuley Product purchased by a Customer who is referred to a Bernuley Site by a link that sends users indirectly to a Bernuley Site via an intermediate site, without requiring the customer to click on a link or take some other affirmative action on that intermediate site (a “Redirecting Link”),
   6. any Bernuley Product purchased by a Customer, where such Customer does not comply with the terms and conditions applicable to a Bernuley Site, and
   7. any Bernuley Product purchase that is not correctly tracked or reported because the Links from the Affiliate Site to the relevant Bernuley Site are not properly formatted.

   “Qualifying Purchases” shall mean orders that occur when:

   1. a Customer clicks through a special Link on the Affiliate Site to the Bernuley Site; and
   2. the Customer purchases a Bernuley Product by adding a Bernuley Product to his or her shopping cart and completing the order for that Bernuley Product; and
   3. the Bernuley Product is shipped to, streamed or downloaded by, and paid for by the Customer.

   “Qualifying Revenue” shall mean the applicable amounts payable by Customers for Qualifying Purchases less any shipping charges, gift-wrapping fees, handling fees, taxes (e.g. sales tax and VAT), service charges, discounts, credits, rebates, credit card processing fees, Disqualified Purchases, bad debt, and other adjustments.

2. AFFILIATE’S OBLIGATIONS.
   
   
   1. Application.  Affiliate shall complete and submit the Affiliate Program Application to Bernuley.  Bernuley may approve or deny any Affiliate Program Application in its sole discretion.  Bernuley shall notify Affiliate via email if Affiliate’s Application has been approved.
   2. Promotion of Bernuley Services.  Affiliate shall actively promote the Bernuley Services to its customers and site visitors during the Term of this Agreement. Affiliate shall promote the Bernuley Services using only the Bernuley Content in the form provided on the Affiliate Information Site.
   3. Affiliate Site.  Affiliate shall be responsible for the hosting and operation of the Affiliate Site.  Affiliate shall not display the Bernuley Content or any other promotional content in a way that implies that the Affiliate Site is provided by, endorsed by, affiliated with or sponsored by Bernuley (except for the Bernuley Content).
   4. Exclusive Promotion.  Affiliate shall not offer or promote any other pet door product (“Competing Products”) during the Term.  Notwithstanding Section 7 of this Agreement, Affiliate shall not be paid any Revenue Share if it offers or promotes any Competing Products in violation of the foregoing covenant during the Initial Term or any Renewal Term. Nothing in this Agreement restricts in any way Bernuley’s right, exercisable in its sole discretion, to select, display, advertise and promote any companies (and such companies’ products and services) in, on, or in connection with the Bernuley Site or any other Bernuley Web sites, products and services.
   5. Prohibited Acts.  Affiliate may NOT:
      • employ, use or place any web browser add-ons, toolbars or pop-ups on your website.
      • engage in any direct or indirect relationships with ISPs and/or mobile carriers that results in the delivery or act of address bar keyword and URL error trafficking (e.g., a user mistypes a web address in the ISP’s address bar or search bar, and, as a result, is redirected to a web page that contains a Link that directs the user to sites like the Bernuley Site).
      • without the prior written approval of Bernuley, use any Bernuley Marks, or any Bernuley Content in an advertisement that is not created or provided by Bernuley in any way that might suggest or imply or mislead or is likely to mislead a visitor to the Affiliate Site into believing that Bernuley or any related entity was the creator or sponsor of such advertisement.
      • employ, use, or receive any direct or indirect benefit from, any “cookie stuffing” methods (e.g., use of “cookie stuffing” to cause Bernuley’s tracking systems to conclude that a user has clicked through a Link — and to pay commissions accordingly — even if the user has not actually clicked through any such link).
3. BERNULEY’S OBLIGATIONS.
   
   
   1. Affiliate Information Site. Bernuley shall develop and publish the Affiliate Information Site.  In the event of any inconsistency between the terms of this Agreement and the content on the Affiliate Information Site, the terms and conditions of this Agreement shall control.   
4. SECURITY AND PRIVACY. 
   
   
   1. Security. Each party shall employ commercially reasonable security safeguards to protect Customer information from loss, misuse and unauthorized alteration during its storage, processing and transmission, including the use of commercially available computer security products, as well as industry standard security procedures and practices.
   2. Privacy.  Each party shall comply with its respective privacy policies and statements in handling, using and disclosing any Customer information.
5. PUBLICITY AND CUSTOMER COMMUNICATIONS.
   
   
   1. Publicity. The parties hereby agree that any press, marketing or advertising releases of either party that refer to the other party or the other party’s products or services shall not be released or disseminated without the prior approval of the other party, and such approval will not be unreasonably withheld or delayed.
6. INTELLECTUAL PROPERTY OWNERSHIP AND LICENSE.
   
   
   1. Ownership.  Each party shall retain all right, title and interest in and to its respective Marks, Content and other intellectual property worldwide, subject to the limited license granted to the other hereunder in connection with such party’s performance of this Agreement.
   2. Limited License. Each party (a “Licensor”) hereby grants to the other party hereto (a “Licensee”) a non-exclusive, worldwide, non-transferable, non-sublicensable, royalty-free and limited license to use its Marks and Content solely in connection with its marketing and promotion obligations under this Agreement. All such use shall be in accordance with each party’s reasonable policies regarding advertising and trademark usage as shall be established or changed from time to time in each party’s sole discretion upon written notice to the other. All usage by Licensee of Licensor’s Marks shall include the appropriate registered or unregistered trademark symbol and, where space reasonably permits, a legend stating that the “[Licensor’s Mark] is a registered trademark of [Licensor]” or a reference to the effect that third party marks are owned by their respective owners. Bernuley’s current guidelines for the use of the Bernuley Marks are published on the Affiliate Information Site.
   3. Restrictions and Acknowledgements.  The Licensee hereby acknowledges and agrees that (i) the Licensor’s Marks and Content are owned solely and exclusively by the Licensor, (ii) except for the limited license granted pursuant to Section 6.2, the Licensee has no rights, title or interest in or to the Licensor’s Marks or Content, (iii) all use of the Licensor’s Marks or Content by Licensee shall inure to the benefit of Licensor.    Licensee shall not apply for registration of the Licensor’s Marks (or any mark confusingly similar thereto) anywhere in the world, and shall not engage, participate or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the image and/or reputation of Licensor’s Marks. Affiliate agrees it shall not use "StreamComm", "Bernuley", or "built-in pet doors" in Affiliate name. In addition Affiliate agrees it shall not use, without Bernuley’s written permission, which Bernuley can deny at its sole discretion, the words Bernuley, built-in pet doors, StreamComm, and any other misspellings or variations thereof, as keywords or keyword phrases, in any search engine marketing (SEM), or any search engine that is currently available. Upon the expiration or termination of this Agreement, each party shall immediately cease using the Marks or Content of the other, and shall remove such Marks and Content from their respective Sites, except as the parties may agree in writing.
7. COMPENSATION.
   
   

   Product or Service	Revenue Share Percentage
   Bernuley Products	5%

   1. Revenue Share. For Affiliate’s promotion of the Bernuley Services pursuant to this Agreement, Bernuley shall pay Affiliate a “Revenue Share Fee” of the Qualified Revenue actually collected by Bernuley from Customers during each calendar month as indicated in the table above; provided that Affiliate shall not be paid any Revenue Share Fee until the total amount due to Affiliate is at least one hundred dollars ($100.00).  Bernuley reserves the right to change the prices for the Bernuley Products at any time in its sole discretion without prior notification to Affiliate.  Bernuley shall pay the Revenue Share Fee to Affiliate on or before the 90th day following the end of each calendar month in which the Revenue Share Fee was earned. Bernuley does not make any representation or warranty of the number of orders that will be placed for the Bernuley Products, or that any Revenue Share Fee will become payable to Affiliate under this Agreement.
      
      
      1. At any time, Bernuley may, in its sole discretion, change the amount of the Revenue Share Fee paid to Affiliate.  Bernuley shall notify Affiliate regarding any change in the Revenue Share Fee.
      2. Affiliate understands that the Revenue Share Fee applies only to the Bernuley Products, but may not apply to other products or services that may be offered in conjunction with the Bernuley Products.
   2. Reports.  Affiliate will have access to Bernuley's online reporting of the Affiliate's earned Revenue Share Fee.
8. COVENANTS, REPRESENTATIONS AND WARRANTIES.
   
   
   1. Compliance Matters.  Each party shall comply with all applicable laws governing its performance of and activities under this Agreement.  Affiliate is and will be solely responsible for any recommendations or advice it may offer to its users. 
   2. Representations and Warranties.  Affiliate represents and warrants to Bernuley that: (i) the execution, delivery, and performance of this Agreement shall not conflict with or result in any breach of or a default under, any material agreement, instrument or undertaking to which it is a party or by which any of its property is bound; (ii) that the use, reproduction, distribution, transmission, or display of its respective Content and Marks pursuant to this Agreement shall not constitute an Infringement, be defamatory or violate any third party’s rights of publicity, privacy or personality.
9. INDEMNITIES AND LIMITATIONS.
   
   
   1. Indemnity.  Affiliate agrees to defend at its expense, indemnify, and hold Bernuley and its directors, officers, employees, and agents harmless from and against Losses resulting from any claims, suits, actions or other proceedings (collectively, “claims”) made by a third party to the extent that such claims arise from or relate to:  (i) a violation of applicable law asserted against Bernuley to the extent caused by the acts or omissions of the Affiliate in the course of its performance of this Agreement, (ii) a breach of or inaccuracy in the Affiliate’s representations and warranties set forth in this Agreement, or (iii) the Affiliate’s error or omission in the performance of or failure to perform its covenants set forth in this Agreement.
   2. Except to the extent of its applicable indemnification obligations pursuant to Section 9.1, Bernuley shall not be liable to Affiliate (including Affiliate’s affiliated entities) for any incidental, indirect, special or consequential damages, loss of profits or revenue, loss of data, or interruption of business in any way arising out of or related to this Agreement, regardless of the form of action, whether in contract, tort, (including negligence) strict product liability or otherwise, even if any representative of Bernuley has been advised of the possibility of or could have foreseen such damages, and any liability for damages is limited to, and will not exceed One Thousand Dollars ($1,000).
10. WARRANTIES AND DISCLAIMERS.
    
    The parties represent and warrant that the use of its intellectual property rights by the other party pursuant to this Agreement shall not infringe any intellectual property right of any third party and that there is no litigation or claim pending or, to either party’s knowledge, threatened relating hereto. Except as expressly provided in this agreement, neither party makes any warranties either express or implied, as to the services, products, materials, or information provided hereunder, and hereby expressly disclaims all implied warranties including those of merchantability and fitness for any particular purpose. 
    
11. TERM AND TERMINATION.
    
    
    1. Term.   This Agreement will commence on the date the Affiliate Program Application is approved by Bernuley and will continue in force (unless sooner terminated pursuant to Section 11.2 below) for one (1) year  (the “Initial Term”).  The Agreement will automatically renew for additional periods of one (1) year (each a “Renewal Term”) unless either party notifies the other of its intention to terminate the Agreement at least thirty (30) days before the conclusion of the Initial Term or the then current Renewal Term.
    2. Termination Rights.  Bernuley shall have the right to terminate this Agreement immediately at any time and for any reason.  Further, upon the occurrence of any of the following events of default, after giving written notice to the defaulting party and following the expiration of the cure period set forth in Section 11.3, the non-defaulting party may declare the other party to be in default of this Agreement and may immediately terminate this Agreement: (1) where the defaulting party is in material breach of this Agreement; (2) where the defaulting party has admitted that it is unable to pay its debts as they mature, or makes an assignment for the benefit of its creditors; or (3) where the defaulting party has filed a petition or application under any bankruptcy act, receivership statute or like law or statute as they now exist or may be subsequently amended, or had such a petition or application filed by any third party against it, where such petition or application is not dismissed or otherwise favorably resolved within sixty (60) days.
    3. Notice and Cure Period.  Upon receipt of a notice of default delivered pursuant to Section 11.2 containing a reasonably detailed statement of the alleged default, the alleged defaulting party shall have a period of thirty (30) days in which to cure the alleged default.  If the alleged default has not been cured during the foregoing period, then the non-defaulting party may terminate this Agreement immediately following expiration of the foregoing cure period upon further written notice to the defaulting party. During any notice and cure period, both parties shall continue to be bound by all the terms and conditions of this Agreement.
    4. Post-Termination Actions.  In the event of termination or expiration of this Agreement, each party shall (i) promptly disable the Links between the Bernuley Site and the Affiliate Site and remove any material or information relating to the promotions and rights contemplated by this Agreement; (ii) provide any final reports for periods falling within the Initial Term or any Renewal Term, and pay any amounts owed as of the date of termination in connection with this Agreement, excluding any unpaid Revenue Share Fee earned prior to termination of this Agreement; (iii) cooperate with the other party in performing any other activities reasonably required to effect the termination of this Agreement, including the provision of reasonable notification to the customers of Affiliate and Bernuley that the Bernuley Services will no longer be available through Affiliate.  Notwithstanding anything to the contrary contained herein, the rights and obligations of the parties pursuant to Sections 4, 5, 6.1, 6.3, 8, 9, 10, 11, and 12 herein shall survive any termination or expiration of this Agreement.
12. GENERAL.
    
    
    1. Entire Agreement.  This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings, letters of intent or other agreements, written or oral, regarding such subject matter.  No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights.  Any waiver, amendment or other modification of any provision of this Agreement will be effective only if in writing and signed by the parties.
    2. Applicable Law; Severability; Attorneys' Fees.  This Agreement will be governed by the laws of the State of Texas, U.S.A., as applied to agreements entered into and to be performed entirely within Texas without regard to its choice of law or conflicts of law principles, and the proper venue for any disputes arising out of or relating to any of the same will be the state courts located in Johnson County and federal courts located in the Northern District of Texas, Dallas Division.  If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.  The prevailing party upon final adjudication or resolution of any action or proceeding to interpret or enforce this Agreement will be entitled to reimbursement of its legal expenses, including reasonable attorneys’ fees.
    3. Notices.  All notices required under this Agreement shall be in writing and shall be considered given (i) five (5) days after mailing, when sent certified mail, return receipt requested and postage prepaid, (ii) one (1) business day after dispatch, when sent via a commercial overnight carrier, fees prepaid, or (iii) if sent via email.  Notice to Bernuley shall be directed to Bernuley Pet Doors, 836 E. Renfro St., #218, Burleson, TX 76028, or via email to . Notice to Affiliate shall be directed to the address listed in the Affiliate Program Application.
    4. No Assignment; No Third Party Beneficiaries.  Affiliate shall not assign its rights or delegate its obligations under this Agreement without the prior written consent of Bernuley, which consent shall not be unreasonably withheld; provided, however, Bernuley may freely assign its rights and obligations hereunder; and provided that either party may assign its rights and obligations hereunder to an Affiliated Entity; and either party may engage subcontractors to provide supporting services to it, except that such subcontractors shall be subject to the applicable provisions of this Agreement (e.g., confidentiality obligations) and that such engaging party shall be responsible to the other party hereto for the performance and acts of its subcontractors. Any attempt to assign this Agreement other than as permitted above will be null and void. This Agreement shall be binding on all successors and permitted assigns of the parties.  Except for indemnitees and permitted assigns, this Agreement does not create, and shall not be construed as creating, any rights enforceable by any person or entity not a party to this Agreement or an Addendum executed and delivered pursuant hereto. 
    5. Force Majeure. Neither party shall be liable to the other for a failure or delay in its performance of a required obligation pursuant to this Agreement (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by events such as fire, riot, flood, labor disputes, natural disaster, regulatory action, Internet or telecommunications failures, or other causes beyond such party’s reasonable control, provided that the non-performing party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible and, provided further, that either party may terminate this Agreement upon delivery of written notice to the other party if such condition continues for a period in excess of sixty (60) days.