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Affiliate Agreement This Agreement contains the complete terms and conditions which you (the "Affiliate") agree to be bound by as a participant in Mining Gold Corporation ("Mining Gold Corporation") affiliate program (the "Program") and which shall apply once your application to participate in the Program has been accepted by Mining Gold Corporation. ARTICLE 1. INTRODUCTION 1.01 Mining Gold Corporation is the sole and exclusive owner of all right, title and interest including all intellectual property rights in and to the contents, logos, style, design, look and feel, trade names, trademarks to all literary works, computer software programs, products, goods and services (including all future versions thereof) currently entitled the "Product" as set forth in the separate section below titled “Product”. Product refers to the singular as well as the plural. 1.02 Mining Gold Corporation intends to sell and distribute the Product electronically and/or physically using, in part, third party affiliates who will establish links to Mining Gold Corporation's Web site where the Product will be offered for sale. 1.03 If, in the future, Mining Gold Corporation sells and distributes any other goods or services through the Internet, it may offer to its Affiliates at that time the opportunity to become Vendor-Affiliates of such goods or services. Such goods or services shall then be included in the defined term "Product" and this Agreement shall then also apply to such goods or services. ARTICLE 2. PARTICIPATION & REPRESENTATION 2.01 Mining Gold Corporation hereby grants to the Affiliate the non-exclusive and revocable right to market and advertise the Product and to establish links to Mining Gold Corporation's Web sites, in accordance with this Agreement. 2.02 The Affiliate shall diligently and continuously market and advertise the Product through the Internet and shall develop, operate and maintain links from its site to Mining Gold Corporation's site at its sole cost and expense. 2.03 The Affiliate represents and warrants to Mining Gold Corporation that this Agreement has been duly and validly executed and constitutes and shall continue to constitute a legal obligation, enforceable in accordance with its terms. ARTICLE 3. AFFILIATE SALES COMMISSIONS 3.01 If, as a result of a direct advertising effort of the Affiliate, a referred customer of the Affiliate or of a member of the Affiliate's team (as defined) orders and pays for the Product or other goods or services sold by Mining Gold Corporation in the future, Mining Gold Corporation shall pay the Affiliate a sales commission determined in accordance with the Affiliate Compensation Schedule which follows this Agreement and which forms an integral part of it. The commission is based upon the paid selling price of the purchased goods or services before tax and excluding returns ("Sales Commission") or chargebacks. 3.02 AN AFFILIATE SHALL NOT RECEIVE A SALES COMMISSION FOR A PRODUCT PURCHASE MADE, DIRECTLY OR INDIRECTLY, BY HIMSELF/HERSELF. Mining Gold Corporation, in its sole and complete discretion may create multiple level compensation plans. In the case of a multiple level compensation plan, an Affiliate's Team means all Affiliates introduced to the Program by the Affiliate in question. In the event that more than one Affiliate claims the same commission for a sale, Mining Gold Corporation shall select the Affiliate which shall receive the compensation. 3.03 The Affiliate shall be responsible for all taxes and other similar levies applicable to the Sales Commission pursuant to any law or regulation. The Affiliate shall report the Sales Commission to its taxation authorities as required by law. If the Affiliate is a U.S. resident or a business entity within the U.S., then the Affiliate will be required to supply Mining Gold Corporation with his Social Security Number or its Employer Identification Number, as appropriate, prior to receiving any payment in excess of $600 in a calendar year. 3.04 Mining Gold Corporation shall post and maintain, on a current basis, a designated password-protected Web page for each Affiliate showing the Affiliate's participation in the Program including number of potential customers referred by it and an estimate of the Sales Commission owing to it. Mining Gold Corporation shall, on or about the 20th of each month, mail or otherwise transmit the Sales Commission representing the amount payable for the sales completed in the previous month. Sales statistics of the referred transactions, supporting the amount paid, shall be made available on the Affiliate's private site. Affiliates will receive the Sales Commission in U.S. funds. For administrative convenience, if the Sales Commission is less than fifty ($50) dollars in a month, it shall be mailed during a future month when the total balance due is fifty ($50) dollars or greater. The Affiliate may receive the Sales Commission where the amount in question is less than fifty ($50) dollars by advising Mining Gold Corporation and assuming Mining Gold Corporation's cost of making the payment. If an Affiliate maintains a balance of less than twenty ($20) dollars of Sales Commission in a period of 12 consecutive months without asking for payment during that time, the Sales Commission shall be forfeited. Sales Commission overpayments may be deducted from future payments or shall be reimbursed by the Affiliate. 3.05 Upon written request and at the Affiliate's expense, the Affiliate may cause Mining Gold Corporation's books and records to be examined by an independent firm of accountants to ensure compliance with this Agreement. In the event that the examination reveals an underpayment error of more than 5%, the underpayment and the reasonable cost of the examination to a maximum of two hundred ($200) dollars shall be paid by Mining Gold Corporation. If the examination does not reveal an underpayment as aforesaid, the Affiliate shall compensate Mining Gold Corporation for its reasonable cost to a maximum of two hundred ($200) dollars. The firm of accountants utilized shall limit the scope of their examination to the relevant information regarding the Sales Commission and shall keep private and confidential all information obtained in the course of the said examination. 3.06 You must supply Mining Gold Corporation with a current postal address, e-mail address, and phone number so that we may pay any commissions due promptly. It is your responsibility to keep this information updated. If you fail to keep this information updated, then we will not be able to make proper payments to you. These programs are Internet-based and use email and Internet web pages as communication devices. All Affiliates must have a valid email address and must notify Mining Gold Corporation if that address changes. Any information posted on our web site or emailed to the Affiliate's email address of record is considered delivered to the Affiliate. ARTICLE 4. AFFILIATE SITES AND PROMOTION METHODS 4.01 The Affiliate shall be solely responsible for all materials that appear on its site. It shall strictly adhere to all applicable laws and regulations in conducting its business and more specifically in marketing and advertising the Product. Without restricting the generality of the foregoing, the Affiliate shall not send unsolicited e-mail and shall not send e-mail or any other communication to a recipient if the recipient has requested that it discontinue such communication, nor shall it send or display on its Web site any material that may be considered to be harassing, libelous, defamatory, legally obscene or pornographic, threatening, abusive or hateful. 4.02 Mining Gold Corporation shall have the right, but not the obligation, to pre-approve the graphics and logos used on any Web site which is linked to its site. Furthermore, the Affiliate shall annotate its site with appropriate copyright, trademark and other similar notices, which shall be approved by Mining Gold Corporation. If the Affiliate specifies a price point for the Product in its marketing and advertising, it shall ensure that it is updated regularly to reflect all price changes. 4.03 Mining Gold Corporation shall have the right to monitor the Affiliate's Web site at any time and from time to time to determine if it is in compliance with the terms and conditions on this Agreement. 4.04 The Affiliate agrees not to use any predatory advertising methods designed to generate traffic from sites that they have not contracted with in the online promotion of Mining Gold Corporation's products, services or affiliate program. Predatory advertising is defined as any method that creates or overlays links or banners on web sites, spawns browser windows, or any method invented to generate traffic from a web site without that web site owner's, knowledge, permission, and participation. Examples include, but are not limited to, keyword parsing, browser plugins such as TopText and Surf+, banner replacement technology such as Gator, browser spawning technology that is not web site dependent. Participation in predatory advertising programs will be cause for the affiliate's immediate termination. 4.05 You agree to abide by the rules of the U.S. Federal Trade Commission as currently existing and as updated from time to time by federal authorities, and agree that any failure to abide by such rules constitutes proper grounds for immediate suspension or termination in the sole discretion of Mining Gold Corporation. You understand that earnings claims may not be posted on any page linked to any Mining Gold Corporation website. You acknowledge that an earnings claim is deceptive or misleading if it is false or there is no reasonable basis for making such a claim. 4.06 You agree to comply with the laws of the various countries regarding the use and delivery of email messages. In particular, you agree to comply with the provisions of the United States CAN-SPAM Act of 2003, as amended from time to time. You understand that your failure to comply with these laws will be grounds for the immediate termination of your status as an affiliate, in the sole discretion of Mining Gold Corporation, and that all your commissions will be immediately forfeited. Further, Mining Gold Corporation, its officers and employees will cooperate fully with all governments and their agencies and have the right to release any and all information deemed necessary by Mining Gold Corporation. You agree that any promotional emails you send, or cause to be sent, to promote any of the Mining Gold Corporation products or services, or providing any mention or reference to any of them, will meet the following standards: A. E-mails shall not contain or include a falsified sender domain name or non-responsive IP address; B. E-mails shall not contain or include a false or misleading subject line that attempts to disguise or conceal the content of the e-mail; C. All e-mails shall contain or include valid and responsive contact information of the sender, list manager or list owner; This includes your physical address and optionally your phone number. D. No e-mails shall be sent for the purpose (but not necessarily the sole purpose) of harvesting the e-mail addresses in order to send future unsolicited e-mails; E. You shall be permitted to use brokers or third parties to deliver e-mails only if each acts in compliance with the terms of this Agreement, agrees to fully and completely indemnify you and Mining Gold Corporation for all damages arising from their breach of any of the obligations set forth herein and you have the ability to terminate distribution with or procurement by any such third party on not more than 24 hours notice. You shall be solely responsible for any breach of these obligation by any such third party; F. Every e-mail shall contain a functioning return electronic mail address or other Internet-based mechanism clearly displayed that a recipient may use to submit in a manner specified in the message a reply electronic mail message or other form of Internet-based communication requesting not to receive future e-mail messages from you; G. Every e-mail sent by you or by any broker on your behalf shall include a valid physical postal address of the entity principally responsible for sending the e-mail communication and such other parties as may be necessary in order to remain in compliance with applicable laws, H. You shall distribute such e-mails only to those recipients who have expressly agreed directly with you, in advance, to receive such transmissions from you (i.e., "opted-in") I. You shall process any and all opt-out requests within 5 business days, or less of the request and shall maintain electronic or tangible records evidencing the removal of such e-mails from your lists for verification. J. Unless otherwise directed by Mining Gold Corporation in writing, you shall not use our names (including any abbreviation thereof) or any trademark, trade name, service mark, logo or other Mining Gold Corporation identifying information in the originating or return e-mail address line, header or subject line of any e-mail transmission and that all e-mail transmissions shall contain language in the body and both the “from” line as well as the “re:” line that clearly announces that the offer embedded in the e-mail is being sent by you for the benefit of your users. K. Mining Gold Corporation will review and post each advertisement (including all graphics and copy) of e-mail message prior to distribution and you shall not modify such message without the prior written consent of Mining Gold Corporation. L. Upon request by Mining Gold Corporation, you shall promptly provide us with (i) a point of contact at your office for handling customer complaints received by us and (ii) information regarding consumer responses to the e-mail distribution and any and all records verifying that recipients consented to receive the e-mail transmissions in question M. Upon notice from Mining Gold Corporation to you requesting that you terminate e-mail solicitations of one or more of our advertisements, you shall immediately stop sending any e-mail solicitations promoting such advertisements. N. In the event of any breach of this agreement by you or and third party broker or licensee, Mining Gold Corporation shall, in addition to all other remedies available to it, have the right to refuse to make any payments to you as a result of your promotional efforts that cannot be verified by you as having complied with the terms and conditions hereof. O. You shall indemnify, defend and hold Mining Gold Corporation, its officers, directors, shareholders and employees harmless from any cost, expense or liability arising out of any breach or alleged breach of your obligations under any part of this agreement. ARTICLE 5. ORDER PROCESSING 5.01 Mining Gold Corporation shall establish the procedures of selling the Product including, without limitation, the placement of orders, pricing, payment terms, processing, delivery, returns etc. Without restricting the generality of the foregoing, Mining Gold Corporation shall have the right to cancel, suspend or delay any order for the Product, including the right to discontinue selling the Product at any time. ARTICLE 6. LICENSES AND GOODWILL PRESERVATION 6.01 Mining Gold Corporation shall have the right, but not the obligation, to approve, in its sole and absolute discretion and with due regard to the protection and preservation of the goodwill of the Product any promotional, advertising or marketing item used by the Affiliate. The Affiliate shall make all deletions and modifications suggested by Mining Gold Corporation on any site where the Product is mentioned. 6.02 The Affiliate shall acknowledge and clearly identify and respect that all proprietary information, trademarks, copyrights and all other similar rights in and arising out of the Product are, and shall continue to be, the exclusive property of Mining Gold Corporation. In the event the Affiliate learns of any claim or allegation that the Product infringes upon or violates any intellectual property or proprietary rights of a third party, or contains any unlawful, libelous, or untrue statement, it shall immediately notify Mining Gold Corporation so as to enable Mining Gold Corporation to defend, settle or otherwise resolve the claim or allegation in a manner that Mining Gold Corporation deems appropriate in its sole discretion. 6.03 Customers who purchase the Product through the Program shall be deemed to be customers of Mining Gold Corporation, and the Affiliate shall refer all Product-related questions, requests or queries to Mining Gold Corporation. Mining Gold Corporation shall have the right to utilize the Affiliate's name and logo to advertise, market, promote and publicize in any manner the Product. 6.04 The Affiliate shall not make or give to a customer or a potential customer any warranty, representation or other statement concerning the Product without first obtaining the written consent of Mining Gold Corporation. ARTICLE 7. RELATIONSHIP OF PARTIES 7.01 While the parties shall work hand-in-hand for the benefit of both, the parties acknowledge and agree that the Affiliate shall, from a legal perspective, act as and shall be an independent contractor and not an employee or agent of Mining Gold Corporation. Nothing in this Agreement shall create a partnership, joint venture, agency, or franchise between the parties in the legal sense of these terms. The Affiliate shall not sign any document in the name of or on behalf of Mining Gold Corporation nor shall it hold itself out as being an agent of Mining Gold Corporation or as having apparent authority to contract for or bind Mining Gold Corporation. ARTICLE 8. LIMITATION OF LIABILITY 8.01 In no event shall Mining Gold Corporation be liable for special, incidental, consequential or punitive damages, including, without limitation, any damages resulting from loss of profits, loss of business or loss of goodwill arising out of or in connection with this Agreement or the Product, whether or not such party has been advised of the possibility of such damages. Mining Gold Corporation shall not be liable for any damages if, for any reason whatsoever, its Web site fails or is non-operational for any reason whatsoever. ARTICLE 9. TERM OF THE AGREEMENT 9.01 In the event that the Affiliate breaches any of the undertakings or obligations set forth in this Agreement and does not remedy same within 7 days notice from Mining Gold Corporation, it shall automatically forfeit the Sales Commission then receivable or receivable at any time in the future. Mining Gold Corporation shall, in addition, have the right to terminate this Agreement and shall retain all other rights and remedies available to it at law or in equity. 9.02 This Agreement shall automatically terminate if the Affiliate ceases to actively market the Product for a period of ninety (90) days. Mining Gold Corporation shall have the right but not the obligation to terminate this Agreement with an Affiliate whose Sales Commission in a calendar year was in the bottom twenty (20%) percent of Sales Commission of all Affiliates in the calendar year in question, by giving the Affiliate ninety (90) days notice of termination. In such cases, the Sales Commission owing, representing the sums earned shall be paid even after termination of this Agreement. The Affiliate shall have the right to terminate this Agreement at any time upon written notice to Mining Gold Corporation. 9.03 As soon as notice of termination of this Agreement is given or upon termination as herein provided, the Affiliate shall immediately cease its marketing and advertising of the Product and shall forthwith eliminate all mention and references to the Product and all links to Mining Gold Corporation. Pending the completion of the foregoing, Mining Gold Corporation may hold in abeyance the Sales Commission. ARTICLE 10. MODIFICATION AND APPLICATION OF AGREEMENT 10.01 Mining Gold Corporation may, in good faith, modify any of the terms and conditions contained in this Agreement (including the Affiliate Compensation Schedule), at any time and in its sole discretion, by posting a change notice or a new agreement on its Web site. If any modification to this Agreement is not acceptable to the Affiliate, its only recourse is to terminate this Agreement. The Affiliates continued participation in the Program following the said posting of a change notice or new agreement shall constitute binding acceptance by the Affiliate of the change. 10.02 If any of the provisions of this Agreement are determined by a court to be unenforceable, they shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect. 10.03 The Affiliate shall not assign, transfer or convey this Agreement or any part thereof to any other party without Mining Gold Corporation's consent which shall not be unreasonably refused. 10.04 This Agreement shall endure to the benefit of and be binding upon the parties hereto and their respective heirs, legatees, executors, legal representatives, successors and assigns. 10.05 This Agreement represents the entire agreement between the parties and supersedes all prior negotiations, agreements and understandings, if any. For greater certainty but without restricting the aforementioned, information contained in any of the following shall not form part of this Agreement, namely: Descriptions of the Program (including the descriptions of Sales Commission payable to the Affiliates) on Mining Gold Corporation's Web site(s); E-mail communications from Mining Gold Corporation or from any of its employees, officers or directors; Information in the Product, or in marketing/informational documents. ARTICLE 11. INDEPENDENT INVESTIGATION 11.01 The Affiliate acknowledges that it has reviewed this Agreement and agrees to all its terms and conditions. The Affiliate understands that Mining Gold Corporation may at any time 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 Affiliate's Web site. The Affiliate 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. ARTICLE 12. MISCELLANEOUS PROVISIONS 12.01 Any reference in this Agreement to gender includes all genders and words importing the singular number only shall include the plural and vice versa. 12.02 The insertion of headings and the division of this Agreement into Articles and Sections are for convenience reference only and are not to affect its interpretation. 12.03 Each of the parties hereto covenants and agrees that it shall execute and deliver such additional agreements and documents and do such acts and things as may be reasonably necessary fully and effectually to carry out the intent and purpose of this Agreement. 12.04 Time shall be of essence of this Agreement. 12.05 All notices, requests and other communications shall be deemed to have been received when posted by Mining Gold Corporation on its Web site. It shall also be deemed to have been received on the next business day if transmitted by Telecopier, e-mail or any other form of electronic mail to the last known electronic address of the intended recipient. 12.06 If a dispute arises under this agreement, we agree to first try to resolve it with the help of a mutually agreed-upon mediator in the following location: Miami, Florida. Any costs and fees other than attorney fees associated with the mediation will be shared equally by each of us. If it proves impossible to arrive at a mutually satisfactory solution through mediation, we agree to submit the dispute to binding arbitration at the following location: Miami, Florida, under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitration may be entered in any court with jurisdiction to do so. The parties have required that this Agreement and related documents be drafted in English. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ AFFILIATE COMPENSATION SCHEDULE As set forth for each Product when the Affiliate is logged in to the Affiliate site. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ PRODUCT 1. Instant Products Club ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ REJECTION CRITERIA We will reject anyone who uses marketing techniques that...
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