20101126 ANP

AMEE AFFILIATE NETWORK PROGRAMME

1 AMEE Affiliate Network Programme

1.1 Scope

The AMEE Affiliate Network is a network of organizations (“Affiliates”) that interact with AMEE for both for-profit and non-profit purposes. Affiliate will be entitled to the benefits of the AMEE Affiliate Network as follows:

1.1.1 Co-Marketing: Use of Logos, Marks and Names as mutually agreed

1.1.2 Collaboration: Mutual collaboration on developing new business opportunities and Affiliateships as mutually agreed

1.2 Agreement

This Subscription Agreement (“Agreement”) is between AMEE UK Limited incorporated and registered in England and Wales, company number 06630234, with registered office is at Lubbock Fine, Russell Bedford House, City Forum, 250 City Road, London EC1V 2QQ (“AMEE”, “we”, “us”, “our”), and the party identified (the “Associate”, “you”, “your”) on the service order form (“Service Order”). By subscribing to and/or clicking a box indicating your acceptance and/or by executing a Service Order that references this Agreement or by accessing or using the AMEE Services you agree to and accept the terms of this Agreement. The date that the Agreement is made is the “Effective Date”.

1.3 Definitions

Term Meaning
AMEE Affiliate an entity that a party, directly or indirectly, controls, an entity that controls a party or an entity that is under common control with a party. For purposes of this provision, control means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity.

2. Marketing

2.1 Joint Communications

2.1.1 As soon as reasonably practical after the Effective Date, the parties will issue a Joint Press Release (“JPR”) announcing their collaboration. The JPR shall be subject to review and approval by each party prior to release, such approval not to be unreasonably withheld or delayed.

2.1.2 The parties will cooperate to carry out mutually beneficial public relations activities related to the availability of Associate Products and the AMEE Service, including related promotions and announcements.

2.1.3 AMEE hereby grants to Associate a worldwide, nonexclusive, royalty-free right to use certain authorised AMEE’s Marks solely in connection with the Associate’s documentation, literature, promotion and advertising for the Associate Products (“Associate Marketing Materials”). Associate agrees to provide AMEE with proper attribution with each use of the Licensed AMEE Marks in the Associate Marketing Materials. Such Marks shall be defined from time-to-time by AMEE. Certain Marks including but not limited to communications related to or that reflect accreditation and quality standards may be defined and usage restricted at AMEE’s sole discretion.

2.1.4 Associate hereby grants to AMEE a worldwide, nonexclusive, royalty-free right to use Associate Marks solely in connection with the AMEE Service, literature, promotion and advertising for the AMEE or joint product marketing (“AMEE Marketing Materials”).

2.1.5 Each party’s use of the other’s marks hereunder (the “Licensed Marks”) shall be subject to reasonable trademark guidelines provided by the other.

2.1.6 All use of Licensed Marks, including without limitation any goodwill generated by such use, shall inure to the benefit of the owner thereof.

2.1.7 At the request of either party, the other will reasonably supply to it a number of samples of any materials distributed which utilize or include any Licensed Marks. If the use of the Licensed Marks falls below the other’s standards, the owner of such Licensed Mark will notify the other of any such deficiencies and the licensing party will make commercially reasonable efforts promptly to correct such deficiencies.

3 Confidentiality

This Clause shall govern the use, non-disclosure, and protection of confidential information (“Confidential Information”) that one party (the “Disclosing Party”) provides or discloses to the other party (the “Receiving Party”) pursuant to this Agreement.

3.1 Receiving Party will have a duty to protect only that Confidential Information which:

3.1.1 is first disclosed by Disclosing Party in tangible form and is marked as Confidential at the time of disclosure, including, without limitation, the existence, terms and conditions of this Agreement;

3.1.2 if disclosed by Disclosing Party in intangible form, is orally identified as confidential at the time of disclosure and is summarised in a tangible form conspicuously marked as Confidential (or with a similar designation) and delivered to Receiving Party within a reasonable period of time after such disclosure; or

3.1.3 is provided under circumstances reasonably indicating it is confidential.

3.2 The Receiving Party may use Confidential Information received from Disclosing Party hereunder only:

3.2.1 for the purpose of exercising its rights and fulfilling its obligations under this Agreement and may not disclose such Confidential Information to third parties;

3.2.2 to its employees or consultants provided they have agreed to protect the confidentiality of such information on terms substantially similar to those contained therein.

3.2.3 The Receiving Party shall carry out its obligation hereunder using the same degree of care that it uses in protecting its own proprietary information, or at least a reasonable standard of care. In addition, the Receiving Party shall maintain appropriate administrative, physical, and technical safeguards for protection of the privacy, security, confidentiality and integrity of Confidential Information.

3.3 Without granting any right or license, the parties agree that no obligation of non-disclosure or non use hereunder will apply to any Confidential Information that:

3.3.1 Receiving Party rightfully possesses prior to receipt from the Disclosing Party,

3.3.2 becomes rightfully known by Receiving Party without confidential or proprietary restriction from a source other than Disclosing Party that does not owe a duty of confidentiality to Disclosing Party with respect to such Confidential Information,

3.3.3 is or becomes generally available to the public other than by breach of this Agreement, or

3.3.4 Disclosing Party regularly provides or has provided to any third party without similar restrictions. Further, Receiving Party may disclose Confidential Information received from Disclosing Party to the extent that Receiving Party is required by any court order or government authority to disclose such information, provided that Receiving Party gives Disclosing Party prompt notice of such requirement and reasonably cooperates with Disclosing Party in attempting to limit such required disclosure.

4. OWNERSHIP.

4.1 Pre-Existing Technology. Each party acknowledges and agrees that, as between the parties, each party is and will remain the sole and exclusive owner of all right, title, and interest in and to its pre-existing technology and all modifications and enhancements of its pre-existing technology, and all associated Intellectual Property Rights, and that this Agreement does not affect such ownership. Each party acknowledges that it acquires no rights under this Agreement to the other party’s pre-existing technology other than the limited rights specifically granted in this Agreement. AMEE will own all right, title, and interest in and to all AMEE Products and Derivative Works of the AMEE Products and all associated Intellectual Property Rights.

4.2 Trademarks. Affiliate will use AMEE trademarks only in accordance with AMEE’s then-current trademark standards for use. Any use by Affiliate of AMEE trademarks will inure to the benefit of AMEE.

5 Non-solicitation.

5.1 During the term of this Agreement and for a period of one (1) year thereafter, neither party will directly or indirectly, either alone or in association with others, (a) solicit, or permit any of its Affiliates to solicit, any employee of the other party or its Affiliates to leave the employ of the other party or any of its Affiliates, or (b) solicit for employment, hire, or engage as an independent contractor, or permit any of its Affiliates to solicit for employment, hire, or engage as an independent contractor, any person who was employed by the other party or its Affiliates; provided, that this clause (b) will not apply to any individual whose employment with the other party or any of its Affiliates has been terminated for a period of six (6) months or longer and provided further that this Section will not prohibit general advertisement of employment opportunities not specifically targeting any employee(s) of the other party or its Affiliates.

6 Limitation of liability

6.1 AMEE shall not be liable for:

6.1.1 inappropriate Associate activity including but not limited to use for which the AMEE Service was not intended, malicious use of any part or whole of the AMEE Service executed using the Associate’s authorised account; or

6.1.2 AMEE Service downtime caused by essential maintenance or temporary operational failure or failure of the internet; or

6.1.3 ANY AMOUNT ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, (1) THAT IN THE AGGREGATE, EXCEEDS THE TOTAL AMOUNT PAID BY ASSOCIATE HEREUNDER OR, (2) WITH RESPECT TO ANY SINGLE INCIDENT GIVING RISE TO LIABILITY, THAT EXCEEDS THE AMOUNT PAID BY ASSOCIATE FOR THE PARTICULAR PORTION OF THE AMEE SERVICE DIRECTLY RELATED TO SUCH INCIDENT IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

6.2 Neither party shall be liable for:

6.2.1 ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

7 Termination of this Agreement:

7.1 howsoever arising shall be without prejudice to the rights and obligations of any party accrued prior to termination;

7.2 shall immediately require the payment of any outstanding unpaid invoices and interest due to the other. Either party may submit invoices for services that it has supplied, but not

invoiced. The other must pay these invoices upon receipt.

7.3 shall result in the creation of no further obligation of one party to the other thereafter.

8 General

8.1 Governing Law And Jurisdiction/Arbitration

8.1.1 Unless otherwise agreed in writing, this Agreement shall be governed by and construed in accordance with English law. The parties agree to submit to the exclusive jurisdiction of the English Courts. Notwithstanding the foregoing, AMEE may submit any dispute, claim or controversy arising out of or relating to this Agreement to be finally determined by binding arbitration administered by the Rules of Arbitration of the International Chamber of Commerce in London, England, before one (1) arbitrator, conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction.

8.2 Disputes

8.2.1 Any dispute under this Agreement shall in the first instance be referred to the parties’ respective contract managers who shall attempt to resolve the dispute to the satisfaction of both parties within 30 days. If they fail to resolve the dispute it shall be referred to a senior executive of the parties. If the executive fails to resolve the dispute within 30 working days either party may pursue any remedies available to it under this Agreement or at law.

8.3 Assignment

8.3.1 Neither party shall be entitled to assign this Agreement or sub-contract any part of this Agreement to any person, persons or company without the prior written consent of the other party.

8.4 No Partnership Or Agency

8.4.1 Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and except as otherwise specifically provided in this Agreement, neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

8.5 Severance

8.5.1 If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the other provisions of this Agreement shall not be affected.

8.5.2 If a provision of this Agreement (or part of any provision) is found illegal, invalid or unenforceable, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.

8.6 Changes To Terms And Conditions

8.6.1 AMEE reserves the right to make reasonable changes to these Terms and Conditions at any time provided that it shall give Associate reasonable notice of any such changes. Changes shall apply from the date stated in any such notice. The receipt of an order or instruction or use of an AMEE Service following notice of any changes to these Terms constitutes Associate’s agreement to all such Terms.

8.6.2 Any material changes to these Terms and Conditions shall be documented at a unique addressable URL.

8.7 Third Party Rights

8.7.1 For the purpose of the United Kingdom Contracts (Rights of Third Parties) Act 1999, this Agreement does not and is not intended to give any rights, or any right to enforce any of its provisions, to any person who is not party to it.

8.8 Notices

8.8.1 Any notice or communication required to be given under this Agreement shall, unless otherwise provided, be in writing and signed by the person giving it and may be delivered personally, by registered mail, facsimile, or courier to the address specified in the Associate Account or Service Order in respect of each of the parties or to such address as may otherwise be notified by either party to the other as being an alternative address for service.

8.8.2 Any notice or other communication shall be deemed to have been duly received:

8.8.2.1 if delivered personally, when left at the address and for the contact referred to in this clause; or

8.8.2.2 if sent by pre-paid first-class post or recorded delivery, on the second Business Day after posting; or

8.8.2.3 if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or

8.8.2.4 if sent by facsimile during UK Business Hours, on the day it is sent, otherwise on the next business day.

8.8.2.5 A notice or other communication required to be given under this Agreement shall not be validly given if sent by e-mail.

8.9 Force Majeure

8.9.1 Neither party shall be liable for any failure or delay in performing its obligations under this Agreement to the extent that this failure or delay is the result of any cause or circumstance beyond the reasonable control of that party and that failure or delay could not have been prevented or overcome by that party acting reasonably and prudently. If by reason of force majeure a party is unable to perform all or any part of its obligations under this Agreement for a continuous period of 90 (ninety) days, the other party may terminate this Agreement immediately by written notice.

8.10 Entire Agreement

8.10.1 This Agreement contains the entire and only agreement between the parties and supersedes all previous agreements between the parties respecting the subject matter of this Agreement. Each party acknowledges and agrees that in entering into this Agreement it has no relied upon, and shall have no remedy in respect of any statement, representation, undertaking, or warranty, whether or oral or in writing, save as expressly set out in this Agreement. Each party acknowledges and agrees that the only remedy available to it for breach of contract is for breach of contract under the terms of this Agreement. Nothing in this clause shall limit or exclude liability for fraud.