Affiliate Agreement

NAUTICED INDEPENDENT DISTRIBUTOR - AFFILIATE AGREEMENT

 

This NauticEd Independent Distributor - Affiliate Agreement (this “Agreement”) is entered into by and between NauticEd Company., a Texas Non Profit Company (hereinafter referred to as "NauticEd"), and you or the entity you are representing as a result of entering in this Agreement (hereinafter referred to as Affiliate).

DEFINITIONS

Affiliate means: A person or entity who has clicked on the “I Agree” button associated with this Agreement and is herein given the right to promote, offer for sale, or resell the NauticEd Online Educational Coursework according to the terms and conditions set forth herein and who acts as an independent distributor.

NauticEd Online Educational Coursework shall mean all the material and content presented on the website www.nauticed.org.

RECITALS:

WHEREAS, NauticEd is in the business of providing general boating information to members of the general public (“Students”) on the website www.nauticed.org (the “NauticEd Online Educational Coursework”); and

WHEREAS, Affiliate desires to promote, offer for sale and represent itself as a reseller of the NauticEd Online Educational Coursework to the Students (the “Purpose”); and,

WHEREAS, NauticEd is agreeable to granting Affiliate the right to promote, offer for sale and represent itself as a reseller of the NauticEd Online Educational Coursework; and

WHEREAS, any information presented that is generally known in the public domain is not claimed to be owned by NauticEd, however the style in which it is presented, all presentation materials, the text copy, the layout, the test questions and answers, and all graphics, illustrations and photographs (collectively, the “NauticEd Information”) are either owned by NauticEd or licensed to NauticEd from other third parties (the “Licensors”) and protected by United States and International copyright laws; and

WHEREAS, NauticEd and Affiliate recognize that in the course of providing NauticEd Information to Students, that login codes, invitation codes, passwords and user ID’s that will be created or supplied to Students are confidential information (collectively with the NauticEd Information, the “Confidential Information”) and will remain the property of NauticEd and or the Licensors and shall be protected from further disclosure by the terms of this Agreement. 

AGREEMENT:

NOW, THEREFORE, in consideration of the foregoing definitions and recitals and upon the terms and conditions set forth herein, the parties mutually understand and agree as follows:

1. Relationship between NauticEd and Affiliate.  NauticEd hereby grants Affiliate, the non-exclusive right to promote, offer for sale and represent itself as a reseller of NauticEd’s Educational Coursework to Students subject to the covenants and restrictions set forth in this Agreement. This Agreement shall not be deemed a partnership or joint venture and neither party shall have any responsibility for any of the actions, liabilities or obligations of the other Party and neither Party may bind the other, other than that which is contained herein.

2. Term of the Agreement.  The term of this Agreement shall be for an initial period of two (2) years, automatically renewable thereafter on an annual basis provided Affiliate is not in breach of the terms and conditions of this Agreement.  Either party shall have the right to terminate this Agreement in accordance with the provisions set forth herein.

3. NauticEd’s Duties, Rights, Responsibilities. 

[A] NauticEd will keep live the course content and testing software on the website www.nauticed.org with an uptime of 98%. and provide online promotional, educational and consulting support to Affiliate as NauticEd deems necessary and appropriate to assist Affiliate in his/her/its efforts to resell NauticEd’s Educational Coursework. NauticEd shall not be liable for any downtime of the website, it’s perceived level of support, any lost income opportunities that Affiliate may suffer or deem to suffer, or any action arising or thought to arise from the content of the NauticEd Online Educational Coursework.

[B] NauticEd reserves the right to revise the content exhibited in the NauticEd Online Educational Coursework at anytime for any reason. NauticEd shall not need to provide Affiliate with any notice of any revisions.
 
[C] It is understood and agreed that Affiliate shall at all times be deemed to be an independent contractor.  NauticEd shall have no right to control Affiliate in the conduct of his/her/its activities so long as this Agreement is performed and fulfilled.  Affiliate is not an agent of and has no authority to act on behalf of or bind NauticEd. 

4. Affiliate’s Duties, Rights, Responsibilities.

[A] Affiliate shall promote, sell and represent NauticEd’s Coursework in a professional and accurate manner. Affiliate shall promote, represent and sell NauticEd’s Educational Coursework exclusively to Students for the Student’s sole and private use. Affiliate shall NOT use the NauticEd Information for any purpose other the Purpose.

[B] Affiliate certifies that he/she/it has met all local, state and federal requirements for legal operations and agrees to perform the Purpose in compliance with all of those requirements.

[C] Without limitation, Affiliate shall comply with all employment laws applicable to employers and/or employees, whether now in force or hereinafter enacted, and shall pay any and all rates, taxes, assessments and contributions that may be required or be demanded under, or by virtue of, any statute relating to his/her/its employees.  Affiliate shall be personally responsible for and shall indemnify and defend NauticEd, in all respects, for the employment, control and conduct of any and all persons hired or employed by Affiliate, in the discharge of his/her/its duties under this Agreement.

[D] Affiliate shall not represent that NauticEd’s Online Educational Coursework is a certified governmental body certification in any way unless stated so by NauticEd. Affiliate shall represent that NauticEd’s Online Educational Coursework is only educational in manner and shall NOT imply any warranties as to the worthiness of the educational content.

[E] Affiliate shall NOT reproduce the NauticEd Online Educational Coursework in any format and shall only promote the use of the NauticEd Online Educational Coursework in its form existing on the website www.nauticed.org.

[F] Affiliate agrees (a) to hold the Confidential Information in strict confidence; (b) not to disclose such Confidential Information to any third parties;

[G] Affiliate shall NOT provide answers to Students regarding the NauticEd Online Educational Coursework questions.

[H] Affiliate shall NOT represent or imply that any practical boating training performed by Affiliate is sanctioned, approved or acknowledged by NauticEd.

[I] Affiliate has no quota or minimum sales quantity

5. Remuneration: NauticEd agrees to provide to Affiliate a real-time on online report  (the Referral Report) showing the list of Students who have, clicked through to NauticEd from Affiliate’s own webpage and who have paid money to NauticEd for NauticEd’s Information as a direct result of the click through from Affiliate’s own webpage.

With in 20 days after the end of each calendar quarter, NauticEd agrees to pay to Affiliate 25% of the moneys collected from the Students showing on the Referral Report.

6. Equitable and Legal Relief.  Each party acknowledges that all of the Confidential Information and NauticEd Information is owned solely by NauticEd or is licensed by NauticEd from other parties and that the unauthorized disclosure or use of any Confidential Information and/or NauticEd Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain.  Accordingly, each party agrees that NauticEd shall have the right to obtain an immediate injunction without posting a bond from any court of competent jurisdiction enjoining breach of this Agreement and/or improper disclosure or use of the Confidential Information and/or NauticEd Information. NauticEd shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. In the event any action shall be brought by NauticEd hereto against Affiliate on account of any breach of this Agreement, upon prevailing, NauticEd in said action shall be reimbursed by the Affiliate for all reasonable costs and expenses incurred in connection with litigation, including reasonable attorneys’ fees.

7. Waiver and Release of Liability: Affiliate is aware that boating involves a serious risk of injury and/or death.  Despite these risks, Affiliate, by entering into this Agreement, voluntarily agrees to assume any and all such risks that may result from the use of the NauticEd Online Educational Coursework and other information provided by NauticEd. Affiliate agrees to assume all risks of personal injury, death lost income, and/or property damage and agrees not to sue NauticEd, it’s owners, officers, directors, employees, agents, trustees, affiliates, successors or assigns regardless of the cause and whether or not arising out of the acts, omissions or negligence of NauticEd it’s owners, officers, directors, employees, agents, trustees, successors or assigns.  Furthermore, this release shall be binding upon Affiliate and Affiliate’s heirs, guardians, assignees and legal representatives.

Affiliate, for himself or herself, and for Affiliate’s heirs, guardians, legal representatives, executors and administrators, does hereby release and forever discharge NauticEd it’s owners, officers, directors, representatives, employees, agents, trustees, affiliates, successors and assigns (collectively, the “Released Parties”) of and from any and all liabilities, claims, actions, damages, costs or expenses which Affiliate may have against any one or more Released Parties now or in the future arising out of or in any way connected with the use of the NauticEd Online Educational Coursework and other information provided to Affiliate and Affiliates Students, including but not limited to personal injuries, death, lost income and/ or property damage which may be suffered by Affiliate or any third party before, during or after Affiliate’s use of the NauticEd Online Educational Coursework and other information related thereto, and whether or not arising out of the acts, omissions or negligence of any Released Parties. Affiliate acknowledges that the NauticEd Online Educational Coursework and other information provided to Affiliate is educational and in theory only, and that real live practical situations vary widely and the NauticEd Online Educational Coursework and other information provided to Affiliate will not cover every possible situation and may not be applicable to each and/or every situation. Affiliate acknowledges that Affiliate should use common sense in all boating situations.

8. Marketing. Affiliate may market the NauticEd Online Educational Coursework in any professional and accurate manner for the Purpose that does not dilute the NauticEd brand and shall assume the cost of Affiliate’s own marketing efforts. NauticEd shall promote it’s Online Educational Coursework in any manner it deems fit and necessary at NauticEd’s own cost. Affiliate shall not represent in any marketing materials or media that Affiliate has any ownership in the materials, the coursework or NauticEd.

9. Security Interest.  Affiliate acknowledges that title to the NauticEd online Educational Coursework remains with NauticEd and or the Licensors and at no time shall Affiliate attain any ownership in the Educational Coursework, NauticEd, the Confidential Information, the NauticEd Information, NauticEd’s trademark or trade dress what so ever.

10. Right to Terminate Agreement.  Either party may cancel this agreement at any time for any reason with 30 days written notice. Termination hereunder shall in no way affect NauticEd’s obligations with respect outstanding payments to Affiliate. Paragraph 6,7 and 9 shall survive the termination or expiration of this Agreement. Within 30 days of Termination, Affiliate will stop advertising any connection or affiliation with NauticEd.

11. Miscellaneous.

[A] Non-Assignability.  This Agreement is personal to Affiliate and may not be assigned to any other person, partnership or corporation without the prior written consent of NauticEd. Any such assignment without the written consent of NauticEd shall be void and unenforceable, and shall operate as a forfeiture by Affiliate of all rights, benefits or moneys due hereunder.

[C] Entire Agreement. This Agreement supersedes and merges all prior agreements, promises, understandings, statements, representations, warranties, indemnities and covenants and all inducements to the making of this Agreement relied upon by either party hereto, whether written or oral, between the parties hereto with respect to the subject matter hereof.

[D] Execution.  This Agreement shall be considered to be agreed to by Affiliate and NauticEd when Affiliate clicks on the online “I Agree” button associated with this agreement.

[E] Modification.  This Agreement shall not be amended, changed, modified, terminated, or discharged, in whole or in part, except by an instrument in writing, duly executed by the parties hereto or by Affiliate re clicking the “I Agree” button associated with this and modified version of this agreement.  No modification or amendment hereto shall be effected by the acknowledgment or acceptance by either party of any purchase order, sales acknowledgment, or other similar form from the other party.

[F] Governing Law.  This Agreement shall be, in all respects, governed by, construed and enforced in accordance with the laws of the State of Texas, including all matters of constructions, validity and performance.  If any provision of this Agreement or its application shall be held invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, the validity, legality and enforceability of all other provisions and applications hereof shall not in any way be affected or impaired. 

[G] Arbitration.  If a dispute arises out of or relates to this contract, or the breach thereof, and if said dispute cannot be settled through direct discussions, the parties agree to first endeavor to settle the dispute in an amicable manner by mediation administered by the American Arbitration Association under its Commercial Mediation Rules, before resorting to arbitration.  Thereafter, any unresolved controversy or claim arising out of or relating to this contract, its interpretation or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules.  Any such mediation or arbitration will be conducted in Travis County, Texas. The Prevailing party shall be reimbursed for all reasonable costs associated with the Arbitration.

[H] Jurisdiction.  The parties hereto consent to jurisdiction and venue of any court proceeding to interpret or enforce any terms of this Agreement, including the arbitration clause, exclusively in the Travis County Superior Court, Texas, and the prevailing party therein shall be entitled to the recovery of their attorney’s fees and costs incurred therein.

[I]  Indemnity.  NauticEd represents and warrants that is it has the right to permit Affiliate to act according to this Agreement  NauticEd shall defend, indemnify and hold harmless Affiliate, from any and all claims, suits, damages, liabilities, loss and expenses (including the costs and expenses of attorneys fees and any costs of investigation) arising form any claims that the Materials infringe on the copyrights or other intellectual property rights of any third party.

THE PARTIES TO THIS AGREEMENT HAVE HAD THE OPPORTUNITY TO CONSULT LEGAL COUNSEL AS TO THEIR RIGHTS AND LIABILITIES PURSUANT TO THIS AGREEMENT AND HAVE DONE SO TO THE EXTENT THEY HAVE DESIRED.