Operating Agreement

IMPORTANT – PLEASE READ CAREFULLY THIS AGREEMENT BEFORE APPLYING TO OR PARTICIPATING IN THIS AFFILIATES REFERRAL PROGRAM. THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN GIVEZOOKS!, INC. AND YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY). THIS AGREEMENT, ALONG WITH ANY GUIDELINES THAT MAY BE POSTED ON THE GIVEZOOKS! WEBSITE – WWW.GIVEZOOKS.COM (THE “WEBSITE”), SETS FORTH THE TERMS AND CONDITIONS ON WHICH YOU MAY PARTICIPATE IN THIS PROGRAM. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT PARTICIPATE IN THIS PROGRAM.

1. YOUR ACCEPTANCE. You acknowledge and agree that by participating as an Affiliate, in any way, you consent to this Operating Agreement. For clarity, by posting our Referring Link on your website or in any promotional material, you consent to this Agreement. Importantly, by consenting to this Agreement, you also consent to our PRIVACY_POLICY.

2. MODIFICATIONS. givezooks! may modify, add to or delete from this Agreement from time to time, in its sole discretion, or may modify, suspend or discontinue, temporarily or permanently, the Website or any particular givezooks! Service, or any feature thereof, with or without notice, and without liability to you. Modifications to this Agreement will be posted on the relevant area of the Website and will be effective immediately upon posting. You agree to review this Agreement from time to time to ensure you are updated as to any modifications. By continuing to participate in the Affiliates Referral Program (“Program”) following any such modification, you accept and agree to be bound by such modifications. IF ANY MODIFICATION IS NOT ACCEPTABLE TO YOU, YOUR SOLE REMEDY AND RECOURSE IS TO DISCONTINUE PARTICIPATION IN THE PROGRAM.

3. ENROLLMENT IN THE PROGRAM. To begin the enrollment process, you will submit a complete Application via the Website. Once we’ve received your completed application, you will receive an email confirmation that your application has been received and is under review. We will evaluate your application in good faith and will notify you of its acceptance or rejection. We may reject your application if we determine (in our sole discretion) that your site or your business is unsuitable for the Program. Unsuitable sites include, but are not limited to, those that:

• promote sexually explicit materials
• promote violence
• promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
• promote illegal activities
• otherwise violate intellectual property rights.

By participating in the Program you agree that you will not engage in any such activities. If we reject your application, you are welcome to reapply to the Program at any time. You should also note that if we accept your application and your site is thereafter determined (in our sole discretion) to be unsuitable for the Program, we may terminate this Agreement. Participation in the Program is limited to parties that lawfully can enter into and form contracts under applicable law. For example, minors are not allowed to participate in the Program.

4. REFERRING LINKS. Upon acceptance, you will receive a second email welcoming you to the Program, and providing you with an affiliate ID and custom referral link. We also then grant you a revocable, non-exclusive, worldwide, royalty-free license for the duration of the term of this Agreement, solely for purposes of facilitating referrals to the givezooks! Service, to provide on your site or your other promotional materials a general link to the home page of the givezooks! Website.

We will provide you with guidelines and graphical artwork to use in linking to the givezooks! Website home page. To permit accurate tracking, reporting, and referral fee accrual, we will provide you with a special “tagged” link format to be used in all links between your site and the givezooks! Website. You must ensure that each of the links between your site and the givezooks! Website properly utilizes such special link formats. Links to the givezooks! Website placed on your site pursuant to this Agreement and which properly utilize such special link formats are referred to as “Referring Links.” You will earn referral fees only with respect to new customer sign-ups for the givezooks! Service occurring directly through Referring Links; we will not be liable to you with respect to any failure by you to use Referring Links, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement.

You acknowledge that, by participating in the Program and placing any of the above links within your site, we may receive information from or about visitors to your site or communications between your site and those visitors. Your participation in the Program constitutes your specific and unconditional consent to and authorization for our access to, receipt, storage, use, and disclosure of any and all such information, consistent with the policies and procedures set forth in the Privacy Policy on the givezooks! Website. Except for the license granted under this Section 4, you do not obtain any rights under this Agreement in any intellectual property, including, without limitation, any intellectual property with respect to the Referring Links, link formats, technical specifications, guidelines or graphical artwork referenced above, or with respect to the givezooks.com domain names.

You also acknowledge that we may crawl or otherwise monitor your site for the purpose of ensuring the quality and reliability of Referring Links on your site (for example, to detect links that are broken or non-functional). Therefore, you agree that we may take such actions and that you will not seek to block or otherwise interfere with such crawling or monitoring (and that we may use technical means to overcome any methods used on your site to block or interfere with such crawling or monitoring). You also acknowledge that as a participant in the Program, we may from time to time send you email updates about the Program. By participating in the Program, you consent to our sending you these email updates.

5. REFERRAL FEES. We will pay you (in accordance with Sections 6 and 7 below) referral fees on new customers signing up for subscriptions to the givezooks! Service. New customers are those nonprofit organizations that do not have an active subscription to the givezooks! Service at the time of sign-up. For you to be eligible to earn a referral fee, the customer (in addition to being a new customer) must click-through a Referring Link on your site to the givezooks! Website and, during that session or within 60 days of first clicking-through that link, sign-up for the givezooks! Service.

To permit accurate tracking, reporting and fee accrual, you must ensure that the Referring Links between your site and the givezooks! Website are properly formatted. If the customer does not sign-up during the session that they click-thru the Referring Link, givezooks! uses a cookie (that expires after 60 days) to track that the customer was referred from you if they sign-up within the next 60 days. We will not be liable for paying referral fees on customer sign-ups that are not correctly tracked and reported because the links between your site and the givezooks! Website are not properly formatted, or if the customer does not have cookies enabled in their browser if they sign-up after the initial referring session.

In addition, you may not: (a) directly or indirectly offer any person or entity any incentive (including, without limitation, payment of money or granting of any discount or other benefit) for using Referring Links on your site to access the givezooks! Website (e.g., by implementing any “rewards” program for persons or entities who use Referring Links on your site to access the givezooks! Website); (b) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any person or entity; (c) take any action that could reasonably cause any customer confusion as to our relationship with you; (d) attempt to intercept or re-direct (including, without limitation, via user-installed software) traffic from or on, or divert referral fees from, any web site that participates in the Program; (e) use any Referring Link in connection with any handheld, mobile, or mobile phone application without our prior written approval; or (f) if you bid on or purchase keywords or otherwise participate in keyword auctions on Google, Yahoo, MSN, or any of the sites that participate in their respective search networks, the paid search advertisements you purchase may not send users directly to the givezooks! Website or indirectly to the givezooks! Website via automatic redirection from a site other than the givezooks! Website (i.e., without a click or other affirmative act by the user on that intermediate site). However, nothing in this Agreement prohibits you from purchasing paid search advertisements to send users to your site and then, when the user affirmatively clicks on a Referring Link on your site to the givezooks! Website, directing that user to the givezooks! Website. If we determine, in our sole discretion, that you have engaged in any of the foregoing activities, we may (without limiting any other rights or remedies available to us) withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement.

6. REFERRAL FEE STRUCTURE. During each calendar month, for new customer subscriptions sold within 60 days of being originally initiated through Referring Links on your site, you will earn (subject to the other terms of this Agreement) referral fees in accordance with the Performance Fee Structure described below.

Performance Fee Structure:

For the first 12 months after a new customers signs up, you will earn the percentage of Customer Revenues set forth in the table below:

Revenue Type	Referral Fee Rates
Monthly Subscription	20%
Annual Subscription	25%
Event Transaction Fees	20%

NOTE: If a customer upgrades from a monthly subscription to an annual subscription, you will receive referral fees for the pro-rated amount of the annual subscription that is up to their first 12 months of use.

7. REFERRAL FEE PAYMENT. We will pay your referral fees on a monthly basis via PayPal to the account you’ve indicated on your Affiliate Application. You must have a valid PayPal account to receive any payouts.

8. RESPONSIBILITY FOR YOUR SITE. You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for:

• the technical operation of your site and all related equipment
• ensuring the display of Referring Links on your site does not violate any agreement between you and any third party (including without limitation any restrictions or requirements placed on you by a third party that hosts your site)
• the accuracy and appropriateness of materials posted on your site
• ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights)
• ensuring that materials posted on your site are not libelous or otherwise illegal
• ensuring that your site accurately and adequately discloses, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors’ browsers.

We disclaim all liability for these matters.

9. COMPLIANCE WITH LAWS. As a condition to your participation in the Program, you agree that while you are a Program participant you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc. are now in effect or later come into effect during the time you are a Program participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.

10. TERM OF THE AGREEMENT. The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to the givezooks! Website, and all of our 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 eligible to earn referral fees only on sales of qualifying Subscriptions that occur during the term. Monthly subscription referrals will only be paid through the end of the term.

11. RELATIONSHIP OF PARTIES. You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.

12. INDEMNITY. You will indemnify, defend and hold givezooks! and its officers, directors, employees, shareholders, successors, agents, affiliates, subsidiaries and relevant third parties including advertisers, distribution partners, referral partners, service providers, licensors, licensees, consultants and contractors (collectively the “givezooks! Entities”) harmless from and against any claims, liabilities, losses, costs, damages or expenses including reasonable attorneys’ fees and costs, directly or indirectly, arising out of or in any way relating to: (i) your negligence or misconduct (including those relating to the development, operation, maintenance, and contents of your site); (ii) your conduct, including your use of the givezooks! Website and Service; (iii) any violation or breach of this Agreement; or (iv) any violation or infringement of any intellectual property, privacy, publicity, confidentiality or proprietary rights of any third-party as a result of your use of the Website or the givezooks! Service (collectively, the “Claims”). You are solely responsible for defending any such Claims, and for payment of losses, costs, damages or expenses resulting from the foregoing to both a third party and to the givezooks! Entities. givezooks! shall have the right, in its sole discretion, to select its own legal counsel to defend givezooks! from any Claims (but by doing so shall not excuse your indemnity obligations) and you shall be solely responsible for the payment of all givezooks!’s reasonable attorneys’ fees incurred in connection therewith. You shall notify givezooks! immediately if you become aware of any actual or potential claims, suits, actions, allegations or charges that could affect your or givezooks!’s ability to fully perform their respective duties or to exercise its rights under this Agreement. You shall not, without the prior written approval of givezooks!, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against you, if such settlement or resolution results in any obligation or liability for givezooks!.

13. WARRANTY DISCLAIMER. We make no express or implied warranties or representations with respect to the Program or any products sold through the Program. In addition, we make no representation that the operation of the givezooks! Website and Service will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.

14. LIMITATION OF LIABILITY. We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to you under this Agreement.

15. INDEPENDENT INVESTIGATION. 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 WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB 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. GENERAL

16.1 Governing Law and Jurisdiction: The givezooks! Website and Service are owned and controlled by givezooks! from its offices at 1187 Coast Village Road, Suite 493, Santa Barbara, CA 93108. It can be accessed on the internet from all 50 states, as well as other countries around the world. By participating in the Program, both you and givezooks! agree that this Agreement shall be deemed and treated as though they were entered into, executed, and performed solely in Santa Barbara County, California, and the Agreement shall be governed by and construed in accordance statutes and laws of the State of California, excluding its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is excluded and does not apply to this Agreement. You agree that by participating in the Program you hereby submit to jurisdiction of the courts of California with appropriate subject matter jurisdiction and that any conflict brought or filed with respect to participating in the Program or concerning the Agreement shall be brought in a court of competent jurisdiction in Santa Barbara County, California.

16.2 Arbitration. Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us or any of our affiliates shall be submitted to confidential arbitration in Santa Barbara County, California, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of California (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.

16.3 Assignment: You may not assign or transfer this Agreement, in whole or in part, without the prior written consent of givezooks!. Any attempted assignment in violation of this Section will be null and void and of no force or effect. givezooks! may assign this Agreement freely at any time without notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

16.4 Contacting givezooks!: If you have any questions about the Agreement, the practices of this Website, or your participation in the Program, you may contact: affiliates@givezooks.com

© givezooks! All rights reserved. Effective July 10, 2009.