PLAYSTREAM REFERRAL AGREEMENT v4.9 PlayStream Customer ID: Assigned Offer Code: Referrer s Commission: 10 % One Time: Recurring: Discount to Referrer s Customers: 35 % One Time: Recurring: Above Information Assigned By PlayStream Referrer Information (Mailing Address for Referral Fees): Business: : Service Start Date Address: City, State/Province, Postal: Country: Phone: Web Site: FAX: Email: Primary Contact: Referral Check Payable To: Federal Tax ID (For 1099 Purposes): TERMS AND CONDITIONS: The individual, signing on behalf of the Company below, agrees to the PlayStream s Referral Terms and Conditions, which is attached as part of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized representatives. The individual signing on behalf of the Company below represents and warrants that he or she has full authority to sign this Agreement and bind Company to perform all duties and obligations contemplated by this Agreement. Referrer Signature: Print Name: Title: Date: PlayStream, Inc. Signature: Print Name: George Grubb Title: Date: Page 1 of 6 v4.9
PLAYSTREAM S REFERRAL TERMS AND CONDITIONS PLEASE READ THIS AGREEMENT CAREFULLY. TO COMPLETE YOUR ORDER FOR THE SERVICE YOU HAVE REQUESTED, YOU MUST FIRST READ AND ACCEPT THE TERMS AND CONDITIONS (the TERMS AND CONDITIONS ) OF THIS AGREEMENT (this "AGREEMENT"). This Agreement contains Terms and Conditions to apply to participate in PlayStream s Referral Program (the Referral Program ). Section 1. Purpose of Program. PlayStream, Inc., (a corporation formed in state of Nevada) hereby called ("PlayStream"), is an Internet Streaming Media Service Provider and host of business and personal streaming media and related components to be used to supplement the user's ("Customer's") web site. PlayStream's services include, but are not limited to: the conversion of Customer's multimedia materials into a streaming video or audio format ("Streaming Media"), the hosting of Customer's Streaming Media and related components on PlayStream's server and the granting of permission to link Customer's web site to Customer's Allotted Space. PlayStream may provide any other services, as necessary, for the operation of its business. The under-signed, hereinafter referred to as Referrer, desires to receive Referral Fees from PlayStream, for initiating or referring Customers to PlayStream, that result in a sale of PlayStream s service or product. Section 2. Length of Agreement. The term of this Agreement shall be for one year. For purposes of this Agreement, the "Effective Date" shall be the date on which the undersigned, (hereinafter the Referrer ) submits order for service. Upon expiration of the initial term, the term shall renew automatically for successive periods of one year unless either PlayStream or Referrer gives notice to the other party of non-renewal at least 30 days prior to expiration of the then-current term. Section 3. Cancellation of Service. Either party may cancel or terminate this Agreement at any time and for any reason by written notice of cancellation or termination to the other party at least thirty (30) days prior to the effective date of termination. Upon termination of this Agreement for any reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except for PlayStream s obligation to remit the Referral Fees earned through a period of one year after the date of cancellation or termination of this Agreement unless Cancellation is due to Section 4 Cancellation of Service Due To Delinquency of Other PlayStream Accounts, below. Payment of the final Referral Fee payment to Referrer may be withheld for up to 90 days period of time to ensure that the correct amount is paid. Section 4. Cancellation of Service Due To Delinquency of Other PlayStream Accounts. If Referrer also has an account at PlayStream that is more than thirty days past due but has not been submitted to PlayStream s collection agency, PlayStream will apply Referrer s Referral Fees to the delinquent balance owed on that account until that account is current, before remitting Referral Fees directly to the Referrer. If Referrer also has an account at PlayStream that is more than sixty days past due and has been submitted to a collection agency, then this agreement will automatically terminate without notice, and PlayStream will apply Referrer s current Referral Fees to the delinquent balance owed on that account, if any; and no future Referral Fees shall be awarded. Section 5. Referral Policy. Every Customer that is referred by Referrer, who buys a product or service through this Service is deemed to be a Customer of PlayStream. Referrer shall not have the authority to make or accept any offer of purchase on PlayStream s behalf. All PlayStream s policies regarding Customer orders, including pricing and problem resolution, will apply to these Customers referred by Referrer. PlayStream is not responsible for any representations Referrer makes which conflicts with PlayStream s policies. The price charged for every product or service sold by PlayStream, under this Service, will be determined by PlayStream according to PlayStream s own pricing policies. Product and Service prices may vary from time to time. Referrer may not specify PlayStream s product or service prices in Referrer s descriptions and PlayStream s policies will always determine the price paid by the Customer. PlayStream will not guarantee the availability of our price on any product or service. To protect our Customers privacy, the names or other personal information about specific Customers will not be provided to Referrer. Page 2 of 6 v4.9
Section 6. Tracking of Referred Sales. PlayStream tracks referrals made to Customers who use the unique Referral Offer Code (the Offer Code ) assigned to Customer. Referrer will be solely responsible for ensuring that the Offer Code is provided to Referrer s Customers. PlayStream offers Referrer a discount, as described above, as an incentive for Customers to retain and use the Referred Offer Code when purchasing a product or service from PlayStream. Statements of referred activity will be submitted to Referrer via email every calendar month and a journal of the referred activity will be provided online, accessible by an assigned, unique login and password. All statements after 60 days shall be deemed correct unless Referrer gives PlayStream notice of any error prior to that date. PlayStream will not be responsible for any errors Referrer or Customers referred by Referrer, make which result in loss of any tracking information. PlayStream reserves the right to reject any order for any reason, including any order that does not comply with PlayStream s policies and Terms and Conditions. PlayStream does assign a cookie (the Cookie ) to Customers arriving at PlayStream s Web site from an assigned tracking URL provided to the Referrer. This Cookie will enable PlayStream to track these Customers should they return to the Web site within fifteen days. After that period, the Cookie will automatically expire. PlayStream does not guarantee that assigned Cookies will operate without error. No personal information of the Customer is recorded in the Cookie. Section 7. Referral Fees. PlayStream will pay Referrer a percent, as designated above, of the Gross Collections (not Billings) for each physical product or service that is sold by PlayStream, as depicted in Section 7, to a Customer that was initiated as a direct referral using the appropriate Referral Offer Code assigned to Referrer. Gross Collections is defined as moneys collected from the sales of PlayStream s services or products less returns or refunds. However, no part of the Referral Fees will be based on shipping, handling or sales tax. Gift certificates and coupons are not eligible to earn Referral Fees. Section 8. Services Eligible For Referral Fee Payment. Referral Fees shall be paid for completed sales, as defined in Section 6, of the following services: PlayStream s hosting accounts, as depicted online which provide for recurring referral fees, plus one-time referral fees paid for encoding services, live web cast services, media reports, and consulting services. Fees shall not apply nor be paid for any Pay-Per-View transaction fees that Referrer s Customer may or may not incur if said customer engages PlayStream for its digital rights management services. If Customer engages PlayStream s Affiliate Partner Program, which provides for discounts and special services to Affiliates for managing multiple accounts, then a one-time Customer Referral Fee of $250.00 will be paid to Referrer as a severance fee, and thereafter, Referrer shall no longer participate in said Customer s service or Customer s Affiliate Accounts. Section 9. Referral Fee Payment. PlayStream will send out a Referral Fee by Check, PayPal, or credit to Referrer s PlayStream Account for the applicable Referral Fee if and when Referrer s balance owed is $10.00 (US Dollars) or more and Referrer submits requests to PlayStream for payment. Requests may be submitted online by logging into the Referral Account at http://www.playstream.com. Fees will be payable by PlayStream within 45 (Forty-Five) days of Gross Collections. If a Referral Fee service or product is later refunded or returned by the Referrer s Customer, its Referral Fee will be deducted from the next payment sent to Referrer. If there are no Referral Fees pending within the next 90 days, PlayStream will bill Referrer for this amount, which Referrer agrees to reimburse PlayStream. Any reimbursements remitted to PlayStream via PayPal should be remitted to paypal@playstream.com. Section 10. Method of Payment. All Referral Fees paid by PlayStream shall be in U.S. Dollars. Referrer may elect to receive payment by by Check, PayPal (www.paypal.com) or credit to a PlayStream Account. Request for payment and method of payment may be made online by logging into PlayStream Director, using an assigned unique login and password. Section 11. Acceptable Use. PlayStream may exclude Referrers that we feel do not qualify for participation in this Program because those sites (or entities) do not conform to PlayStream s Terms and Conditions of Use or PlayStream s Acceptable Use Policy which are stated online at http://www.playstream.com. Some reasons why Referrer may not qualify are: a) Promote harassment: using the service to threaten or harass. b) Promote using the service for any purpose other than which it is intended. c) Promote attempting to impersonate any person, using forged headers or other identifying information in a defamatory way. Page 3 of 6 v4.9
d) Promote violation of Trademark and/or Copyrighted material. Upon receipt of a legal notice to "Cease" hosting of material, PlayStream will remove all related material until Customer has satisfactorily resolved the dispute. e) Promote uploading any programs that may cause a disruption to the service. f) Promote untimely payment of any and all amounts due. g) Promote any action that violates the laws of applicable local, state, federal or international governmental bodies. h) Promote the use of multi-level marketing, use of bulk email or spam. i) Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age. j) Promote content that PlayStream deems, in its own discretion, to be unsuitable for this program. PlayStream will cooperate with any and all appropriate legal authorities in investigating claims of illegal activity, including, but not limited to illegal transfer or use of copyrighted material or other illegal activity. PlayStream may in its sole discretion accept or reject referred Customers subject to PlayStream s online Terms and Conditions. Section 12. Restrictions on Use. This Service is intended for referral purposes only. Referrers who use this Service without the intent to referrer customers to PlayStream, but with the intent to obtain a discount for their own use are in violation of the Agreement. PlayStream, in its sole discretion, may terminate this Agreement and/or withhold payment or Referral Fees if PlayStream finds a violation of this restriction has occurred, or if the Referrer has failed to refer any business to PlayStream within a six-month period. Section 13. Independent Contractors. Referrer declares that Referrer is an independent contractor and nothing in this agreement is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative or employment relationship to PlayStream. Section 14. Free To Contract With Others Nonexclusive Service: Referrer understands that PlayStream may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this agreement. Both parties agree that service is nonexclusive. Section 15. No Other Warranties. PLAYSTREAM DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. THE DURATION OF ANY STATUTORILY-REQUIRED WARRANTY PERIOD SHALL BE LIMITED TO THE TERM OF THE LIMITED WARRANTY. PLAYSTREAM MAKES NO REPRESENTATION THAT THE OPERATION OF OUR SITE AND SYSTEMS WILL BE UNINTERRUPTED OR ERROR-FREE AND PLAYSTREAM WILL NOT BE LIABLE FOR CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. Section 16. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL PLAYSTREAM BE LIABLE TO REFERRER FOR DIRECT DAMAGES GREATER THAN THE SUM TOTAL OF REFERRAL FEES PAID OR PAYABLE MADE BY PLAYSTREAM TO REFERRER FOR THE SERVICE FOR WHICH DAMAGES ARE CLAIMED. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF AND IN RELATION TO THIS AGREEMENT EVEN IF ADVISED BEFORE HAND OF THE POSSIBILITY OF SUCH LIABILITY. UNDER NO CIRCUMSTANCES WILL PLAYSTREAM BE LIABLE TO REFERRER FOR ANY MARKETING, ADVERTISING, PROMOTIONAL EXPENSES OR ANY EXPENSES RELATED TO THE REFERRER S USE OF PLAYSTREAM'S REFERRAL SERVICE, REGARDLESS OF ANY EVENT, INCLUDING INTERRUPTION OF PLAYSTREAM'S SERVICE. Section 17. Taxes. In the event that taxes are applicable, Referrer shall be solely responsible for the payment of all income taxes relating to their receipt of Referral Fees, including any other taxes, if applicable. PlayStream shall report Referral Fees as 1099 Miscellaneous Income, subject to Federal guidelines for income reporting purposes, if required by Federal Income Reporting laws. Referrer agrees to submit a completed Form W-9, Request For Tax Payer ID, to PlayStream for compliance with Federal Income Reporting laws. Page 4 of 6 v4.9
Section 18. Governing Law. The laws of the State of Washington shall govern the validity, construction, and performance of this Agreement. Section 19. Arbitration. Referrer and PlayStream (the parties ) agree to submit any dispute arising out of or in connection with this Agreement to binding arbitration in Washington before an arbitrator agreed to by both parties and subject to the rules of the American Arbitration Association. The parties agree that such arbitration will be in lieu of either party's rights to assert any claim, demand or suit in any court action, (provided that either party may elect either binding arbitration or a court action with respect to obtaining injunctive relief to terminate the violation by the other party of such party's proprietary rights, including, without limitation any trade secrets, copyrights or trademarks). Any arbitration shall be final and binding and the parties agree not to contest the enforceability of the arbitrator's order. Section 20. Assignment. Referrer may not assign its rights or obligations arising under this Agreement without PlayStream's prior written consent. PlayStream may assign its rights and obligations under this Agreement, but must provide written notice to Referrer within 90 days of doing so. Section 21. General Provisions. BOTH PARTIES REPRESENT AND WARRANT THAT THEY HAVE FULL POWER (INCLUDING CORPORATE POWER) AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM THEIR OBLIGATIONS HEREUNDER, AND THAT THE PERSON (AND COMPANY, IF APPLICABLE) WHO ACCEPTS THIS AGREEMENT BY CLICKING THE "I ACCEPT THESE TERMS AND CONDITIONS" BOX OR SIGNING BELOW IS DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE PARTY. Section 22. Notices: All legal notices to PlayStream should be submitted to: PlayStream, Inc. Attn: Legal Affairs 100 4 th Avenue North, Suite 400 Seattle, WA 98109 FAX: (206) 404-7901 legal@playstream.com Section 23. Copyright. Licensing. Ownership. The entire content of PlayStream's Service is copyrighted, and all rights are reserved. All materials, including, but not limited to articles, ad banners, Web graphics, Web pages, photographs, Web site content, illustrations, audio and video clips, animation (collectively the content ) published by PlayStream are protected by patent, copyright, and/or trademark law pursuant to US and/or foreign patent, copyright and trademark laws and/or international treaties and conventions. You may not use, distribute, sell, reproduce or otherwise copy any of the Content on PlayStream s site without express written authorization from PlayStream. PlayStream does grant a revocable, non-exclusive, worldwide license to use the names and logos on Referrer s site for the sole purpose of creating a link from Referrer s site to PlayStream s site during Referrer s participation in the Service. Except as expressly set forth in this Agreement, Referrer may not copy, modify, distribute, reverse engineer, or create derivative works from the same. Referrer may not sublicense, assign or transfer any such license without express written authorization from PlayStream. Referrer grants PlayStream a revocable, non-exclusive, worldwide, royalty-free license to use Referrer s names and logos submitted by Referrer for participation in this Service. PlayStream will remove any of the same upon Referrer s request. PlayStream may remove any of the same at its sole discretion. Email legal@playstream.com If Referrer has any questions or comments, Referrer can contact us at (206) 404-7900 or FAX (206) 404-7901. We can also be reached at: PlayStream, Inc. 100 4 th Avenue North, Suite 400 Seattle, WA 98109. USA Page 5 of 6 v4.9
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