Apple - Associates Program - Education Agreement

Education Agreement

This Associate Program Agreement (the "Agreement"), and any counterparts, sets forth the terms and conditions regarding the Associate Program (the "Program") of Apple Computer, Inc. ("Apple").

UPON YOUR CLICKING ON THE "I ACCEPT" BUTTON AT THE END OF THE ASSOCIATE APPLICATION, YOU (IF YOU ARE ACTING ON BEHALF OF YOURSELF AS AN INDIVIDUAL) OR YOUR COMPANY (A CORPORATION, PARTNERSHIP, OR SOLE PROPRIETORSHIP) (THE "ASSOCIATE") AGREE(S) TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS.

1. Definitions. Capitalized terms in this Agreement will have the meanings set forth below.

"Apple Store for Education" means the online store owned and operated by Apple, which offers and sells products for education individuals, at the shop for yourself site, which is located at http://www.apple.com/education/store.
"Banners and Text" means certain graphics images and text, furnished by Apple, that the Associate is to use at its Site in identifying itself as a member of the Program.
"Content" means the Banners and Text, the Icons, the Logo, and such other Site content as Apple may expressly authorize the Associate to use at the Associate’s Site.
"Customers" means K-12 faculty and staff, and higher education faculty, staff and students who are further defined at the Apple Store for Education shop for yourself Site.
"Eligible Products" means products that are entitled to earn referral fees under the rules of the Associate Program.
"Fee Schedule" means listing of Apple products eligible for referral fees.
"Icons" means certain graphics icons, furnished by Apple, that the Associate is to use at its Site to promote the Program.
"Link" means a URL hidden behind a formatting option that may take the form of a colored item of text, logo or image, button, or graphic box, and which allows a user to automatically move to or between World Wide Web ("WWW") pages, WWW sites, or within a WWW document.
"Logo" means the graphic image, furnished by Apple, that the Associate is to use at its Site to promote the Program.
"Site" means a WWW site and, depending on the context, refers to either the Apple Store for Education or to the Associate’s Site.

2. Enrollment in the Program
The Associate must submit a complete Program application located at http://www.apple.com/ storeassociates/. Apple will evaluate the application and will notify the Associate of Apple’s acceptance or rejection. Apple may decline the application if Apple determines (in Apple’s sole discretion) that the Associate’s Site is unsuitable for the Program. Apple reserves the right to reject sites for any reason, including sites that:

Contain obscene or sexually explicit materials;
Promote violence;
Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
Promote illegal activities;
Violate intellectual property rights
Promote the use of bulk e-mail or spam; or
Include Mac, Apple, or variations of either Apple or Mac in their brand or domain names (unless we approved those names in writing).

If Apple accepts the Associate’s application, Apple will provide the Associate with access to the Apple Store for Education Associates Program Site ("Associates Site"). Apple has the right to terminate the Associate’s membership in the Program at any time with or without cause. If Apple declines the Associate’s application or terminates the Associate’s membership, the Associate is welcome to reapply to the Program at any time, but Apple will have the sole discretion to determine whether the Associate will be readmitted.

3. Links on Your Site
Once the Associate has been accepted to the Program, it may select one or more of the Banners and Text, including the Icons, to feature on its Site. The Associate may not modify the Banners and Text or the Icons in any way. The placement of Icons will be Associate’s sole responsibility and within Associate’s sole discretion. For each selected Icon, the Associate will also provide an electronic link to the Apple Store for Education at http://www.apple.com/education/store in a format provided by Apple. It is Associate’s sole responsibility to set up the Links connecting Associate’s Site to the appropriate page on the Apple Store for Education designated for that particular Icon, and ensure that the Links are in working order.

4. Order Processing
Apple will process product orders placed by individual education Customers who follow any Links directly from the Associate’s Site to the Apple Store for Education. Apple reserves the right to reject orders that do not comply with any requirements that Apple has established and may periodically change. The Associate will not be responsible for order processing or fulfillment, such as preparing order forms; processing payments, cancellations, and returns; or handling Customer service. The Associate does not need to track sales made by Customers who follow Links directly from the Associate’s Site to the Apple Store for Education and purchase products from Apple (provided that their browsers are set to accept cookies), or make available online reports summarizing this sales activity. Apple will not be responsible for any errors the Associate or Customers make that result in any loss of any tracking or sales activity information, nor will Apple be responsible for tracking and reporting sales that were not made through a Link formatted to Apple specifications. Apple will not track, report, or pay referral fees for sales that result from a Customer who phones in an order rather than ordering from the Associate’s Site. To protect Apple Customers’ privacy, the names and other personal information about Customers will not be provided to the Associate.

5. Referral Fees
Subject to the terms and conditions of this Agreement, Apple will pay the Associate referral fees on sales of Eligible Products to qualified individual end-user Customers who are eligible for Apple education pricing (as provided at the Apple Store for Education) and have: (a) followed a Link from the Associate’s Site to the Apple Store for Education within five (5) days after the Apple Store for Education has created a cookie for the particular end-user Customer; (b) purchased the product using Apple’s online automated ordering system; and (c) remitted full payment by credit card to Apple. Apple will not, however, pay referral fees for any products that are subsequently purchased or added to a Customer’s shopping cart after the Customer has left the Apple Store for Education and subsequently reentered it (other than through a Link directly from the Associate’s Site, even if the Customer previously followed a Link directly from the Associate’s Site to the Apple Store for Education. For information concerning individuals’ eligibility to purchase at education pricing, see http://www.apple.com/education/store. The Associate will earn referral fees on Eligible Products based on the prices actually paid to Apple by Customers, excluding all costs for shipping, handling, and taxes, and as determined by Apple in Apple’s sole discretion.

6. Fee Schedule:
Apple will pay referral fees to the Associate quarterly for orders of Eligible Products that have booked and electronically-distributed or shipped within that particular quarter time period. The percentage commission earned depends on revenue generated through Links from the Associate’s Site. Commission levels for the sale of Eligible Products to qualified individual end-user Customers will be disclosed to the Associate in the Fee Schedule that Apple will provide to the Associate when the Associate has been accepted into the Program. Apple has the right to change Apple’s commission structure at any time.

7. Fee Payment
Within forty-five (45) days following the end of each Apple fiscal quarter, Apple will send the Associate a check for referral fees earned on Eligible Products that were electronically-distributed or shipped during that month, less returns, and less any taxes that Apple is required by law to withhold. However, if the fees payable to the Associate for any fiscal quarter are less than Fifty Dollars ($50), Apple will hold those fees until the fiscal quarter in which the referral fee exceeds Fifty Dollars ($50) or until this Agreement is terminated or expires, whichever is earlier. If Eligible Products are returned or charged back, or if Apple determines that the Customer was not eligible for Apple Education Pricing, Apple will deduct the corresponding fee from the Associate’s next quarterly payment. If there is no subsequent payment, Apple will send the Associate an invoice for the canceled referral fee and the Associate will reimburse Apple with in thirty (30) days of Apple’s demand.

8. Policies and Pricing
Customers who buy Eligible Products will be deemed to be Apple’s Customers. Accordingly, all Apple rules, policies, and operating procedures concerning Customer orders, Customer service, and product sales will apply to those Customers. Apple may change its policies and operating procedures at any time. Apple will determine the prices for Eligible Products in accordance with Apple pricing policies, and both these prices and product availability may vary from time to time. Apple will use commercially reasonable efforts to present accurate information, but does not guarantee the availability or price of any Eligible Products. The Associate may not include information about Eligible Products’ (or any other Apple products’) pricing in its product descriptions or elsewhere on its Site.

9. Identification as a Program Member
Apple will make the Logo available to the Associate to enable the Associate to identify itself as a Program Member. The Associate will display the Logo, without modification, the phrase "In association with Apple," or both, on the home page of its Site. Apple may modify the Logo from time to time, and the Associate promptly will include the modified Logo on its Site. The Associate may not make any public statement or press release with respect to this Agreement or its participation in the Program without Apple’s prior written consent, which may be given or withheld in Apple’s sole discretion.

10. Limited License; Ownership of Content
Subject to the terms and conditions of this Agreement, Apple grants the Associate a limited, non-exclusive, non-transferable, revocable license to use the Content solely for the purpose of identifying the Associate as a Program member and to assist Apple in generating Eligible Product sales through the Program. Associate may not modify or contest Apple’s rights in and to any of the Content in any way, or use the Content in any derogatory or illegal manner. This license terminates upon the termination of this Agreement. Apple retains all right, title and ownership to the Content, including all associated intellectual property rights, and any goodwill attributed to the Content or its use shall inure exclusively to Apple. The Associate will not use any Content, or any rights under the Program (such as its status as an Associate of the Apple Store for Education) except as expressly permitted under this Agreement in connection with its membership in the Program, and not for any reason whatsoever. The Associate’s participation in the Program and any rights granted under this Agreement are not an endorsement or sponsorship of the Associate or its Site by Apple, and the Associate will not create any false association between Apple and the Associate.

11. Responsibility for the Associate’s Site
The Associate will be solely responsible for all development, operation, and maintenance of its Site and for all materials that appear on its Site. For example, the Associate will be solely responsible for:

The technical operation of the Associate’s Site and all related equipment;
Posting Icons on its Site and linking those Icons to Apple’s Site;
The accuracy and appropriateness of materials posted on the Associate’s Site (including, among other things, all materials concerning the Eligible Products);
Ensuring that materials posted on the Associate’s Site do not violate or infringe upon the rights of any third parties (including but not limited to copyrights, trademarks, privacy, or other personal or proprietary rights); and
Ensuring that materials posted on the Associate’s Site are not libelous, illegal, obscene or sexually-explicit.

Apple disclaims all liability for the matters that are the Associate’s responsibility under this section. THE ASSOCIATE MAY NOT MAKE ANY REPRESENTATION OR CLAIM REGARDING THE USEFULNESS, SPECIFICATIONS, FEATURES OR EFFICACY OF ELIGIBLE PRODUCTS (OR ANY OTHER APPLE PRODUCT). IF THE ASSOCIATE MAKES ANY SUCH CLAIM, ITS MEMBERSHIP IN THE PROGRAM MAY BE TERMINATED IMMEDIATELY.

12. Indemnity
The Associate will defend, indemnify and hold Apple harmless from any and all claims, damages, and expenses (including, without limitation, attorneys’ fees), however arising, relating to the development, operation, maintenance, contents and use of the Associate’s Site, any violations of law, or any breach of the Associate’s obligations under this Agreement or the Program.

13. Termination
This Agreement will become effective upon Apple’s acceptance of the Associate’s Program application and will remain in effect until December 31, 2001, unless sooner terminated as provided below or extended for additional one-year period(s) by mutual agreement of the parties. Notwithstanding the above, this Agreement may be terminated (i) by either party at any time, with or without cause, by giving the other party ten (10) days written notice of termination, or, (ii) upon breach of this Agreement by the Associate, Apple may immediately terminate the Agreement. Apple may terminate the Program at any time by posting notice on Apple’s Associates Site. The obligations of Sections 10, 12-13, 16-19, 21 and 22 will survive expiration or termination of this Agreement. The Associate is only eligible to earn referral fees on sales of Eligible Products made during the term of this Agreement, and fees earned through the date of termination will be reduced for any cancellations or returns. Apple may withhold all or a portion of the Associate’s final payment as a reserve for up to ninety (90) days against any such cancellations or returns.

14. Modification
Apple may modify all or a portion of the terms and conditions of this Agreement at any time and in Apple’s sole discretion, by posting a change notice or a new agreement on the Apple Associates Site. Modifications may include but are not limited to, changes in referral fees, fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO THE ASSOCIATE, ITS SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT. THE ASSOCIATE’S CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING APPLE’S POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON APPLE’SASSOCIATES SITE WILL CONSTITUTE THE ASSOCIATE’S ACCEPTANCE OF THE CHANGE.

15. Relationship of Parties
The Associate and Apple are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. The Associate will have no authority to make or accept any offers or representations on Apple’s behalf. The Associate will not make any statement, whether on its Site or otherwise, contrary to anything in this section.

16. Limitation of Liability
Apple will not be liable to the Associate for any special, indirect, or consequential damages (including, without limitation any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if Apple has been advised of the possibility of such damages. Furthermore, under no circumstances will Apple’s aggregate liability under this Agreement or the Program exceed the total referral fees paid to the Associate under this Agreement during the previous fiscal quarter, or five hundred dollars ($500), whichever is less.

17. Disclaimers
APPLE MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS TO THE ASSOCIATE WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE. IN ADDITION, APPLE MAKES NO REPRESENTATION THAT THE OPERATION OF APPLE’S SITE WILL BE UNINTERRUPTED OR VIRUS -OR ERROR-FREE AND APPLE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS, VIRUSES OR ERRORS.

18. Independent Investigation
THE ASSOCIATE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. THE ASSOCIATE UNDERSTANDS THAT APPLE 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 THE ASSOCIATE’S WEBSITE. THE ASSOCIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

19. Identification of Associates
Apple may identify the Associate as a member of the Program or refer to the Associate’s Site without providing the Associate prior notice or obtaining the Associate’s prior consent. Such identification or reference may be oral, written, or electronic and may be included in, without limitation, public announcements, promotional materials, internal and external reports, and public filings.

20. Assignment
The Associate may not assign this Agreement, by operation of law or otherwise, without Apple’s prior written consent. Apple may assign this Agreement, in whole or in part. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against, the parties and their respective successors and permitted assigns. Any purported assignment in violation of this section is void.

21. Scope of Agreement
This Agreement and any counterparts constitutes the entire agreement and understanding between the parties hereto with respect to its subject matter and supersedes all prior or contemporaneous written or oral agreements or representations between the parties. This Agreement may only be modified by a written instrument by both parties, unless permitted under its terms.

22. Miscellaneous
The Agreement will be governed by the laws of the United States and the State of California, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in San Jose, California, and the Associate irrevocably consent to the jurisdiction of such courts. Apple failure to enforce the Associate’s strict performance of any provision of this Agreement will not constitute a waiver of Apple’s right to enforce such provision or any other provision of this Agreement at any other time.

23. Notice
All notices and other communications required or permitted under this Agreement shall be served in person, by electronic mail, or by United States mail, postage prepaid, or overnight courier to the following address: