Baseball BBQ Affiliate Sales Agreement
GENERAL TERMS AND CONDITIONS
THESE GENERAL TERMS AND CONDITIONS (GTC) shall govern the AFFILIATE SALES AGREEMENT (Affiliate Agreement) entered into between Affiliate and Old Welsh Road Baseball, LLC, as updated from time-to-time on the terms outlined herein.
WHEREAS, the parties entered into an Affiliate Sales Agreement regarding the sale of certain products of Company and commissions paid; and
WHEREAS, the parties wish for this GTC to cover the Agreement and any subsequent or modified agreements.
Now, therefore, in consideration of the mutual covenants set forth and good and fair consideration, the receipt and sufficiency of which is acknowledged, the Parties agree as follows:
1. Contract Interpretation.
All terms between the Company and Affiliate are governed exclusively by this GTC, any applicable Affiliate Agreement), and any future affiliate agreement. Collectively, this GTC, any applicable Affiliate Agreement, and/or any supplemental contract are, “the Contract”. To the extent there are any express conflicts or inconsistencies between these GTC and any Affiliate Agreement or proposal (except as it may relate to performance, term, pricing, or acceptance criteria), the provisions of this GTC shall govern and control.
2. Ownership of Work Product and Proprietary Rights.
Each party shall own all intellectual property rights in and to any and all materials generated or produced by such party prior to the Effective Date (the “Pre-Existing Materials”). Affiliate and the Company acknowledge and agree that all materials developed, generated, or produced by Affiliate in connection with the performance of any services hereunder, including but not limited to marketing or branding materials, customer lists, marketing strategy, products, trademarks/copyrights, technology, research data, drawings, and the like (“Work Product”) shall be considered “work made for hire” within the meaning of the copyright laws of the United States and that the Company is and shall be the sole author of such Work Product and the sole owner of all rights therein. In the event that, for any reason, such Work Product is deemed not to be a “work made for hire,” Affiliate hereby irrevocably assigns to the Company all of his rights, titles and interests worldwide in and to such Work Product, including but not limited to, the right to register the copyrights therein, to modify such Work Product or otherwise make derivative works thereof, to license or sell such work product, to reproduce such Work Product, to distribute copies or reproductions or such Work Product and to publicly display such Work Product, in each case in any form now known or hereafter invented. Such assignments shall include all causes of action for copyright infringement of any such Work Product, including, without limitation, the right to institute, process, defend and settle any suit or other legal or administrative proceeding to enjoin infringement or misappropriation of such Work Product, together with the sole right to any resulting recovery of damages, royalties, profits, legal fees and costs. In addition to the license, in the event that any of Affiliate’s Pre-Existing Materials are embedded, linked, bundled, incorporated or otherwise made a part of any Work Product, Affiliate hereby grants to the Company a non-exclusive, transferable, royalty-free, perpetual, and irrevocable license (with the right to sublicense) to use, copy, display, sell, perform, and modify such Pre-Existing Materials as part of or in connection with the Work Product, including the right to carry out modifications, enhancements, and maintenance of the Pre-Existing Materials. Such rights are solely for Products reasonably related to those sold at any time by the Company.
Affiliate recognizes and acknowledges that OWRB possesses certain confidential information that constitutes a valuable, special, and unique asset. As used herein, the term “confidential information” includes all information and materials belonging to, used by, or in the possession of OWRB relating to its: products; processes; services; technology; inventions; patents; ideas; contracts; financial information; developments; business strategies; pricing; past, current and prospective customers; marketing plans; and trade secrets of every kind and character, but shall not include (i) information that was already within the public domain at the time the information is acquired by Affiliate, or (ii) information that subsequently becomes public through no act or omission of Affiliate. Affiliate agrees that all of the confidential information is and shall continue to be the exclusive property of OWRB, whether or not prepared in whole or in part by Affiliate and whether or not disclosed to or entrusted to Affiliate’s custody. Affiliate agrees that Affiliate shall not, at any time following the execution of the Contract, use or disclose in any manner any confidential information of OWRB.
Affiliate shall take no action which is intended, or would reasonably be expected, to harm the Company or its reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to the Company. Affiliate shall not disparage or defame OWRB in any respect or to make any derogatory comments, whether written or oral, regarding OWRB or its current or former officers, directors, Affiliates, attorneys, agents, or contracting parties, or its business or operations. Nothing herein shall prevent Affiliate from making any truthful statement in connection with any legal proceeding or investigation by the Company or any governmental authority. Affiliate agrees that, in addition to any other remedy in the Contract, in the event of a violation of this Section or Sections 4 or 5, OWRB shall have the full right to seek injunctive relief, in addition to any other existing rights provided in the Contract or by operation of law, without the requirement of posting bond. Affiliate shall reimburse the Company for all costs, expenses or damages that it incurs as a result of any violation by Affiliate of any provision of the Contract. This obligation shall include court costs, litigation expenses, reasonable attorneys' fees, and consequential damages including but not limited to lost profits.
Company may modify any of the terms and conditions contained in this Contract, at any time and in Company’s sole discretion, by posting a change notice or a new agreement on the site effective within thirty (30) days of notice. Modifications may include, but are not limited to, changes in the scope of available referral fees, referral fee schedules, payment procedures, and program rules. CONTINUED PARTICIPATION BY AFFILIATE IN THE PROGRAM FOLLOWING COMMUNICATION OF SUCH A CHANGE SHALL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, THE SOLE RECOURSE SHALL BE TO TERMINATE THE CONTRACT.
6. Relationship of Parties.
The parties agree that Affiliate is an independent contractor and not any employee of OWRB or any of its subsidiaries or affiliates. Affiliate shall not hold himself out as an employee of OWRB. Nothing contained in the Contract or any document executed in connection herewith shall be construed to create a partnership or joint venture relationship between Affiliate and OWRB. The consideration set forth above shall be the sole consideration paid to Affiliate for services performed. OWRB shall not withhold any amounts from Affiliate’s commission for the payment of federal, state, local, or any other tax. The payment and withholding of any such taxes shall be the sole responsibility of Affiliate and Affiliate shall indemnify, defend, and hold harmless Company for any damages, claims, or expenses arising out of or in connection with any claims asserted by a taxing authority. Affiliate shall have no authority to make or accept any offers or representations on Company’s behalf. Affiliate shall not make any statement, whether on Affiliate’s site or otherwise, that contradicts anything in this Section.
7. Limitation of Liability
In the event liability is found on the part of the Company, regardless of legal theory or how such damages arise, pursuant to the Contract, its liability for any damage caused to and proven by Affiliate shall be limited to the amount of commissions earned within the preceding twelve months. In no event shall Company be liable for any incidental, special, punitive, or consequential damages or losses of any kind arising under or in connection with the Contract, regardless of legal theory, including, but not limited to, any such damages or losses resulting from business interruption or lost profits. The foregoing limitation of liability reflects deliberate and bargained for allocation of risks.
8. Independent Investigation/Entire Agreement.
AFFILIATE ACKNOWLEDGES HAVING READ THIS GTC AND THE AFFILIATE AGREEMENT AND ANY OTHER FUTURE AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. AFFILIATE UNDERSTANDS THAT COMPANY MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS AND/OR AFFILIATES ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS CONTRACT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH AFFILIATE’S WEB SITE. AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THE CONTRACT. The Contract constitutes the entire agreement of the Parties with regard to the subject matter hereof, and, as of the date of execution, replaces and supersedes all other agreements or understandings, whether written or oral. No amendment or extension of this the Contract shall be binding unless in writing and signed by both Parties unless authorized by this GTC above.
Company makes no express or implied warranties or representations with respect to the Affiliate Program or any products sold through the Program. In addition, Company makes no representation that the operation of the Website will be uninterrupted or error-free, and Company shall not be liable for the consequences of any interruptions or errors including lost sales or commissions.
IN WITNESS WHEREOF, the Parties have executed the Contract by means of their signatures below:
Old Welsh Road Baseball LLC: