American Express Affiliate Marketing Program Affiliate Agreement Last Updated 12/08/03 AMERICAN EXPRESS AFFILIATE PROGRAM AGREEMENT THIS AFFILIATE PROGRAM AGREEMENT, INCLUDING APPLICABLE OFFERS (COLLECTIVELY, THE "AGREEMENT"), IS A LEGAL AGREEMENT BETWEEN YOU AND AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC. AND ITS PARTICIPATING SUBSIDIARIES AND AFFILIATES ("AMERICAN EXPRESS") FOR PARTICIPATION IN AMERICAN EXPRESS'S AFFILIATE PROGRAM ("PROGRAM") AS MANAGED BY AND THROUGH THE LINKSHARE NETWORK(TM). BY REGISTERING FOR AND PARTICIPATING IN THE PROGRAM, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT REGISTER FOR OR PARTICIPATE IN THE PROGRAM, OR, IF YOU ARE ALREADY AN AMERICAN EXPRESS AFFILIATE, IMMEDIATELY TERMINATE ALL USES OF AMERICAN EXPRESS'S MARKS AND ANY LINKS TO AMERICAN EXPRESS'S WEB SITE. AS USED IN THIS AGREEMENT, "WE", “US” AND “OUR” MEANS AMERICAN EXPRESS AND “AFFILIATE”, "YOU", AND “YOUR” MEANS THE PARTICIPATING WEB AFFILIATE. 1. PARTICIPATION IN THE PROGRAM If you are a member of The LinkShare Network, you only need to read and agree to this Agreement. If you are not a member of The LinkShare Network, you must complete a registration form to join The LinkShare Network http://ssl.linksynergy.com/php-bin/reg/sregister.shtml and read and agree to this Agreement. We will evaluate your registration application and notify you of your site's acceptance status. We may reject your application if we determine (in our sole discretion) that your Site is unsuitable for the Program. Unsuitable Sites include, but are not limited to, those that: · Promote pornography · Promote gambling · Otherwise are considered offensive at American Express's discretion · Are defamatory or libelous · Promote violence or contain hate speech · Are aesthetically unpleasing · Those commerce sites that do not accept American Express for payment (More guidelines found in Section 9. REPRESENTATIONS) 1.1 Once you are accepted into the Program, you will be able to participate in the Program subject to the terms and conditions of this Agreement. You should also note that if you are accepted to participate in the Program and your Site is thereafter determined (in our sole discretion) to be unsuitable for the Program, we may terminate this Agreement immediately. American Express reserves the right to withhold payments from you and/or terminate this Agreement in the event you fail to comply with the terms and conditions of this Agreement. Termination may also be based on other factors, including margins on cards and/or accounts referred to us by you. 1.2 In order to participate in the Program, Affiliates who are also merchants must accept the American Express Card FOR TRANSACTIONS on their Sites. 1.3 In order to participate in the Program, your Site must contain a privacy statement. 2. DEFINITIONS 2.1 "Offer" means a specific offer posted by American Express on its Affiliate Program Site that receives an identification number from The LinkShare Network. The terms and conditions of such Offers shall be incorporated into this Agreement. 2.2 "Qualifying Link" means a link from your Site to American Express's Site using one of the Required URLs or any other URL or graphic link provided by American Express for use in the Program (through the LinkShare Network). 2.3 "Qualifying Product" means an American Express product or service that is offered at the American Express Affiliate Program Site and is the subject of an Offer. 2.4 "Qualifying Referrals" in the American Express Affiliate Program result when a prospect applies for and is approved for an American Express product or service as a result of an Offer and American Express promotional link appearing on your Web site. 2.5 "Required URLs" means the special URLs specified in an Offer to be used to link from your Site to the American Express's Site. 2.6 "Session" means the period between the time a Customer (as defined in Section 5.1 below) first clicks on a Qualifying Link on your Site and the time the Customer makes an online purchase at the American Express Site, provided that both the click on the Qualifying Link and such online purchase is made within 7 days of the first click. 2.7 "Site" means a World Wide Web Site and, depending on the context, refers either to American Express's U.S. Site located at the URL www.americanexpress.com, or to the Site that you will link to our Site as identified in your Linkshare.com registration form. 3. OFFERS 3.1 From time to time, American Express may post on The LinkShare Network, Offers to pay members of The LinkShare Network, as well as other participating American Express Web affiliates who may not be members of The LinkShare Network, a specified referral fee on certain Approved Referrals through a Qualifying Link. 3.2 The terms of an Offer, as posted on The LinkShare Network or otherwise communicated to you, shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Offer and the terms of this Agreement, the terms of the Offer shall govern. 3.3 At any time prior to your providing a Qualifying Link, American Express may, with or without notice, (a) change, suspend, or discontinue any aspect of an Offer or (b) remove, alter, or modify any graphic or banner ad submitted by you pursuant to an Offer. You agree to promptly implement any request from American Express to remove, alter, or modify any graphic or banner ad submitted by you that is being used in connection with an Offer. 4. YOUR RESPONSIBILITIES 4.1 You shall only link your Site to areas within American Express's Site using Required URLs. You may post as many links to the Required URLs as you like. You shall not modify or change any of the Required URLs. Any such modifications or changes may result in American Express’s immediate termination of this Agreement and American Express will not be responsible for compensation based upon modified or changes URLs. The position, prominence, and nature of links on American Express's Site shall comply with any requirements specified in the Offer, but otherwise will be in American Express's discretion. Only valid Qualifying Links generated by The LinkShare Network will be tracked for purposes of determining referral fees that you may be eligible to receive on Qualifying Referrals through your Site. 4.2 American Express will not, and is not obligated to, make any representations, warranties, or other statements concerning you, your Site, any of your products or services, or your Site policies, except as expressly authorized by the Offer. 4.3 You will be solely responsible for the development, operation and maintenance of your Site and for all materials that appear on your Site. We disclaim all liability for such materials. You are also responsible for notifying us and The LinkShare Network of any malfunctioning of the Required URLs or other problems with your participation in the Program in accordance with the terms of the Offer and this Agreement. American Express (or a designee such as The LinkShare Network) will respond in normal course to all concerns upon notification. 4.4 E-mail Policy – Affiliates are not permitted to send e-mail in connection with the Program. 4.4.1 4.5 Affiliates shall not seek to acquire prospects for Amex by representing that Affiliate can maintain, accept or refer applications to receive any American Express cards or services. Other than Affiliate’s specific duties under this Agreement, Affiliate shall refrain from any activities that could be reasonably construed as Affiliate acting as an official Amex representative, including, but not limited to, sending e-mail in connection with the Program, maintenance, acceptance or referral of Amex card applications or collection of prospect personal data in conjunction with attempting to receive compensation under this Agreement. In the event that Affiliate engages in any of the activities described in this Section 4.5, this Agreement shall terminate immediately and the parties agree that Amex may seek immediate injunctive relief and monetary damages. 4.6 Affiliate shall not use any “tracking and reporting” technologies to collect personally identifiable information on Web pages that contain Amex branding or marks, including, but not limited to, technologies designed to collect, track, store or classify user data, movements or preferences. 4.7 Affiliate shall change or modify content and/or creative that describes American Express products or services upon notification by Amex. If Affiliate fails to make such changes or modifications, Amex maintains the right to terminate Affiliate’s participation in the Program. Amex shall announce all changes and modifications to content and/or creative in the newsletters sent by Linkshare on behalf of American Express. American Express will provide at least five (5) business days’ notice prior to the effective date of any such change or modification. 5. REFERRAL FEES 5.1 We agree to pay you the referral fee specified in the Offer if: (a) a visitor to the American Express Site (a "Customer") purchases a Qualifying Product; and (b) that Customer has accessed the American Express Site and purchased the Qualifying Product online via a Qualifying Link from your Site, provided that it is the last link to the American Express site that the Customer uses during a Session where a sale of a product or a service to Customer occurs. You acknowledge that American Express’s internet tracking services are subject to factors beyond American Express's reasonable control that may cause discrepancies in matching Qualifying Links to purchases of Qualifying Products. For example, we are not able to track transactions involving Customers with browsers set to disable “cookies” and who browse other sites before completing their purchase of a Qualifying Product. You acknowledge that such discrepancies are unavoidable with internet tracking and will not constitute a material breach of this Agreement. 5.2 American Express shall have the sole right and responsibility for processing all referrals made by Customers. You acknowledge that all agreements relating to sales to Customers shall be between American Express and the Customer. Customers who buy products through this Program will be deemed to be Customers of American Express. Accordingly, all American Express rules, policies, and operating procedures concerning customer orders, customer service, customer data, and product transactions will apply to those Customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. 5.3 All determinations of Qualifying Links and whether a referral fee is payable will be made by The LinkShare Network and will be binding on both of us. 6. REFERRAL FEE PAYMENT 6.1 Unless otherwise stated in an Offer Addendum, we will pay you referral fees on a monthly basis. Approximately thirty (30) days following the end of each month, we (or our designee, The LinkShare Network) will send you a check for the referral fees earned on our sales of Qualifying Products that were shipped during that quarter, less canceled orders. However, if the referral fees payable to you for any calendar quarter are less than $0.00, we will hold those referral fees until the total amount due is at least $0.00, or (if earlier) until this Agreement is terminated. 6.2 If you become an Affiliate less than thirty (30) days prior to the end of a quarter, then any and all referral fees generated during that initial period shall be included in the next quarter for purposes of payment of those fees by American Express. 6.3 If a Customer clicks through a Qualifying Link and ultimately purchases another Qualifying Product, you will receive the referral fee for the Qualifying Product that was purchased. You will be compensated for return Customers up to 90 days from initial click through. 7. OWNERSHIP AND LICENSES 7.1 Each party owns and shall retain all right, title, and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights, and proprietary technology currently used or which may be developed and/or used by it in the future. 7.2 We grant you a limited, revocable, non-exclusive license to use the graphic image and text, which may include our name, logos, trademarks, service marks (collectively, the "American Express Marks"), designated in the Offer and solely for the purpose of creating links from your Site to the American Express Site pursuant to this Agreement. Except as expressly set forth in this Agreement or permitted by applicable law, you may not copy, distribute, modify, reverse engineer, or create derivative works from the same. You may not sublicense, assign, or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment, or transfer is void. You agree to follow our Trademark and Corporate Identity Guidelines, as those guidelines may change from time to time. Any use of the American Express Marks on your Site must be approved by American Express prior to publishing. We may revoke your license at any time by giving you written notice. If your license is revoked, you will not receive any outstanding compensation for approved referrals. 7.3 As a condition to your acceptance and participation in the Program, you shall not undertake or engage in the following practices, and any violation of this Section shall be deemed a material breach of this Agreement: (a) Use or otherwise incorporate the words "American Express", "Blue from American Express", “American Express Blue for Student Card”, "American Express Gold Card", "American Express Credit Card for Students", "Gold Delta Skymiles Credit Card, American Express Platinum Cash Rebate Card, "Membership B@nking", "Gold Corporate Card for Small Business", "Corporate Optima Platinum Card" or variations or misspellings in the domain name(s) of your Site(s); (b) Modify or alter the American Express Site in any way; (c) Make any representations, either express or implied, or create an appearance that a visitor to your Site is visiting the American Express Site; e.g., "framing" the American Express Site (d) Use "American Express" or "Amex" as domain name, or portion thereof, unless expressly and explicitly authorized in writing by American Express; (e) Purchase "American Express" or "Amex" or other trademark or product name of American Express or variation or misspelling thereof as keywords, unless expressly and explicitly authorized in writing by American Express, or (f) During the term of or after the expiration or termination of this Agreement, use any mark, name or domain name of any type which is confusingly similar to "American Express" or "Amex" or other American Express trademarks. 8. TERMINATION 8.1 Either party may terminate an Offer at any time by deleting their acceptance of the Offer through The LinkShare Network. Termination of a specific Offer shall not be deemed to terminate any other Offers. 8.2 Either party may terminate this Agreement at any time, for any reason, upon five (5) days' prior written notice of such termination to the other party and The LinkShare Network. In addition, American Express shall be entitled to terminate this Agreement immediately if you materially breach or violate any terms or conditions of this Agreement, if American Express determines, in its sole discretion, that there are technical or operational issues (e.g., interruptions caused by, or shifts in, online/Internet technology) that adversely affect the implementation of the Program, or, if the Program does not meet predetermined profitability levels. Termination of this Agreement shall also terminate any outstanding Offer. However, all rights to payment, causes of action, and any provisions which by their terms are intended to survive termination, shall survive termination of this Agreement 8.3 Upon termination of this Agreement for any reason, you will immediately cease use of, and remove from your Site, all links to the American Express Site, and all American Express trademarks, trade dress and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. You are only eligible to earn referral fees on our sales of Qualifying Products occurring during the term of this Agreement, and referral fees earned through the date of termination will remain payable. 9. REPRESENTATIONS 9.1 You represent and warrant that (a) you have the authority to enter into this Agreement and sufficient rights to grant any licenses expressed herein, and (b) any material which is provided to us or displayed on your Site will not (i) infringe on any third party's copyright, patent, trademark, trade secret, or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance, or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic, or obscene; (v) violate any laws regarding unfair competition, anti-discrimination or false advertising; (vi) promote violence or contain hate speech; (vii) promote discrimination, based on race, age, sex, religion, nationality, sexual orientation, or disability; or (viii) contain viruses, trojan horses, worms, time bombs, cancelbots, or other similarly harmful or deleterious programming routines. 9.2 Affiliates are obligated to notify American Express in writing pursuant to Section 14 (Notices) if they are operating their own affiliate network and marketing American Express products through that network. Any such Affiliates will be required to sign a separate marketing agreement with American Express that will cover the affiliate network relationship. 9.3 NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AMERICAN EXPRESS MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM OR THAT OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE AND WE WILL NOT BE RESPONSIBLE FOR CONSEQUENCES OR ANY INTERRUPTIONS OR ERRORS. 10. INDEMNIFICATION 10.1 You agree to indemnify, defend and hold harmless Amex, its parent company, subsidiaries, affiliates, successors and assigns and their respective officers, directors, shareholders and employees, from and against any and all losses, liabilities, damages, actions, claims, expenses and costs including, without limitation, reasonable attorneys' fees, which result or arise from or are based on (i) the negligence of you, your agents, servants and/or employees, (ii) your breach of this Agreement or any of the terms hereunder, (iii) any misrepresentation of a representation or warranty, or breach of a covenant or agreement made by you herein or in the Linkshare enrollment application, (iv) any claim that Amex infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party as a result of your actions, inactions, activities, or marks, or (v) any claim related to your Site, including, without limitation, content therein not contributed directly by Amex. 11. PUBLIC STATEMENTS 11.1 You agree that we may identify you or your Site as an Affiliate of the Program as long as you participate in the Program. Amex may make this identification orally, in writing or electronically, including without limitation, in press releases, public announcements and promotional materials publicizing, advertising or promoting the Program.11.2 You may not issue any press release or public announcement, distribute any marketing or promotional materials or otherwise make any public communications regarding this Agreement or your participation in the Program without our prior written consent. 12. LIMITATION OF LIABILITY 12.1 In no event shall either party be liable to the other party for any direct, indirect, special, exemplary, consequential, or incidental damages, even if informed of the possibility of such damages. Further, American Express's aggregate liability arising from this Agreement and the Program shall not exceed the total referral fees paid or payable to you under this Agreement. 13. MODIFICATIONS TO THIS AGREEMENT 13.1 We may modify any of the terms and conditions of this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the American Express Site or by sending you a written notice by email or other delivery. Modifications may include (but are not limited to) changes in the scope of available Referral Fees, the amount of the Referral Fees, the payment procedures, and rules of the Program.13.2 If any modification to this Agreement is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Program following our posting of a change notice or new agreement or our written notice to you will constitute your binding acceptance of the change. 14. NOTICES 14.1 All notices, consents, requests, instructions, approvals, and other communications made, required or permitted hereunder (each herein, a "Notice") shall be given in writing and delivered: (i) by personal delivery, (ii) by electronic mail, (iii) by certified or registered mail (return receipt requested), or (iv) by a nationally recognized courier. If the Notice is to you, it shall be addressed to the electronic or postal address you have provided to Amex; if the Notice is to American Express, it shall be addressed to the electronic or postal address set forth on the American Express Site. The effective date of such Notice shall be deemed to be the date upon which any such Notice is delivered to the addressee. 14.2 Affiliate shall provide American Express with a valid phone number and e-mail address. 15.0 DISPUTE RESOLUTION: 15.1 The parties agree that any and all disputes and claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS/ENDISPUTE, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS/ENDISPUTE for final and binding arbitration. 15.2 Either party may commence mediation by providing to JAMS/ENDISPUTE and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties covenant that they shall participate in the mediation in good faith, and that they shall share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS/ENDISPUTE employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. 15.3 The parties agree that any and all disputes, claims or controversies arising out of or relating to this agreement that are not resolved by their mutual agreement or mediation in accordance with Section of 15 this Agreement, shall be submitted to final and binding arbitration before JAMS/ENDISPUTE pursuant to the United States Arbitration Act, 9 U.S.C. Sec. 1 et. seq. Either party may commence the arbitration process called for in this agreement by filing a written demand for arbitration with JAMS/ENDISPTUE, with a copy to the other party. The arbitration will be conducted in accordance with the provisions of JAMS/ENDISPUTE’s Streamlined Arbitration Rules and Procedures in effect at the time of filing the demand for arbitration. The parties will cooperate with JAMS/ENDISPUTE’s panel of neutrals, and in scheduling the arbitration proceedings. The parties covenant that they will participate in the arbitration in good faith, and that they shall share equally in its costs. 15.4 The provisions of this Section 15 may be enforced by any Court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys’ fees, to be paid by the party against whom enforcement is ordered. 16. GENERAL 16.1 Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect, and nothing in this Agreement (including any Offer) shall create any partnership, joint ventures, agency, franchise, sales representative, or employment relationship between the parties. Neither party shall make any statement, whether on their Sites or otherwise, that reasonably would contradict anything in the paragraph. 16.2 You acknowledge that you have read this Agreement and agree to all its terms and conditions. You understand that we may at any time (directly or indirectly) solicit Customer referrals on terms that may differ from those contained in this Agreement or operate Sites that are similar to or compete with your Site. You have 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 this Agreement. 16.3 THIS AGREEMENT HAS BEEN MADE IN AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES AND NEW YORK STATE WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION TO ENFORCE THIS AGREEMENT SHALL BE BROUGHT IN THE FEDERAL COURTS LOCATED IN NEW YORK, NY. 16.4 This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution may be achieved in any format convenient to the parties. 16.5 The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. 16.6 Equitable Relief. The parties agree that any breach of either of the parties' obligations regarding trademarks, service marks or trade names, confidentiality, and/or user data may result in irreparable injury for which there may be no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party's obligations regarding trademarks, service marks or trade names, or confidentiality, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction. 16.7 You acknowledge that American Express's and LinkShare's servers, equipment, and services (e.g., tracking and reporting) may be subject to temporary modifications or shutdowns due to causes beyond American Express's and LinkShare's reasonable control. Such temporary service interruptions will not constitute a material breach of this Agreement. American Express and LinkShare will use commercially reasonable efforts to provide the services contemplated under this Agreement and to remedy any temporary interruptions or other problems that adversely affect the Program. 16.8 Compliance With Laws. Each party agrees to abide by all applicable laws.