Pre-Effective Amendment to Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2/A Pre-Effective Amendment to Registration of 92 446K
Securities by a Small-Business Issuer
2: EX-1.1 Underwriting Agreement 37 177K
3: EX-1.2 Underwriting Agreement 33 85K
4: EX-4.1 Instrument Defining the Rights of Security Holders 2 21K
5: EX-4.2 Instrument Defining the Rights of Security Holders 34 89K
6: EX-4.3 Instrument Defining the Rights of Security Holders 5± 24K
7: EX-5 Opinion re: Legality 2 12K
8: EX-10.1 Material Contract 4 22K
15: EX-10.10 Material Contract 16 60K
16: EX-10.11 Material Contract 12 40K
17: EX-10.12 Material Contract 7 34K
18: EX-10.15 Material Contract 9 43K
19: EX-10.17 Material Contract 3 17K
20: EX-10.18 Material Contract 6 31K
21: EX-10.19 Material Contract 11 56K
9: EX-10.2 Material Contract 6 36K
10: EX-10.4 Material Contract 4 19K
11: EX-10.5 Material Contract 2 16K
12: EX-10.6 Material Contract 3 15K
13: EX-10.7 Material Contract 26 106K
14: EX-10.9 Material Contract 4± 19K
22: EX-23.1 Consent of Experts or Counsel 1 8K
23: EX-27 Financial Data Schedule (Pre-XBRL) 2 12K
24: EX-27.1 Financial Data Schedule (Pre-XBRL) 2 13K
EX-10.1 — Material Contract
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MASTER AGREEMENT
This Master Agreement ("Agreement") is made between Liquor by Wire
("Merchant") and you, a Web site linking to Merchant under the terms and
conditions set forth herein ("Partner").
BACKGROUND
Partner and Merchant are each enrolled in The LinkShare Network-TM-.
Partner and Merchant each desire to establish the general terms and
conditions which shall govern advertising and commission arrangements between
Partner and Merchant which result from their participation in The LinkShare
Network-TM-.
TERMS AND CONDITIONS
In consideration of the promises set forth below, we agree as follows:
1. Offer and Engagements.
1.1. From time to time, Merchant may post on The LinkShare Network-TM-
offers to pay to other participants a specified commission in return for
certain advertising services leading to a Qualifying Link (defined
below). If such offers receive an identification number from The
LinkShare Network-TM- they shall be deemed to be an "Offer" for purposes
of this Agreement. The term "Offer shall also include any counter-offers
resulting from an Offer.
1.2. If an Offer made by one party is accepted by the other party in
accordance with the Offer's terms via The LinkShare Network-TM-, an
"Engagement" will have been formed. Each Engagement shall have the same
identification number as the original Offer that lead to the Engagement
and shall be governed by the terms and conditions of this Agreement.
However, in the event of any inconsistency between the terms of the
specific Engagement and the terms of this Agreement, the terms of the
Engagement shall govern.
1.3. At any time prior to Partner providing a Qualifying Link, Merchant may
with or without notice (a) change, suspend or discontinue any aspect of
an Offer or an Engagement or (b) remove, alter, or modify any graphic or
banner ad submitted by Merchant for an Offer or an Engagement. Partner
agrees to promptly implement any request from Merchant to remove, alter
or modify any graphic or banner ad submitted by Merchant that is being
used by Partner as part of an Engagement.
2. Partner's Responsibilities.
2.1 Partner will link its site to areas within Merchant's site using special
URLs specified in the Engagement (the "Required URLs"). Partner may post
as many links to the Required URLs and the rest of Merchant's site as it
likes on Partner's site. The position, prominence and nature of links on
the Partner's site shall comply with any requirements specified in the
Engagement, but otherwise will be in the discretion of Partner.
2.2 Partner agrees not to make any representations, warranties or other
statements concerning Merchant, Merchant's site, any of Merchant's
products or services, or Merchant's site policies, except as expressly
authorized by the Engagement.
2.3 Partner is responsible for notifying Merchant and The LinkShare
Network-TM- of any malfunctioning of the Required URLs or other problems
with Partner's participation in the Engagement. Merchant will respond
promptly to all concerns upon notification by Partner.
3. Commissions.
3.1 Merchant agrees to pay Partner the commission specified in the Engagement
if Merchant sells to a visitor to Merchant's site (a "Customer") a product
or service that is the subject of the Engagement and if that Customer has
accessed Merchant's site and purchased the product or service via a
Qualifying Link.
3.2 A "Qualifying Link" is a link from Partner's site to Merchant's using one
of the Required URLs or any other URL provided by Merchant for use in The
LinkShare Network-TM- if it is the last link to the Merchant's site that
the Customer uses during a Session where a sale of a product or a service
to Customer occurs.
3.3 A "Session" is the period of time beginning from a Customer's initial
contact with Merchant's site via a link from the Partner's site and
terminating when the Customer either returns to the Merchant's site via a
link from a site other than Partner's site or the Engagement expires or is
terminated.
3.4 Merchant shall have the sole right and responsibility for processing all
orders made by Customers. Partner acknowledges that all agreements relating
to sales to Customers shall be between Merchant and the Customer.
3.5 All determinations of Qualifying Links and whether a commission is payable
will be made by The LinkShare Network-TM- and will be final and binding on
both Merchant and Partner. Prices for the Products will be set solely by
Merchant in its discretion.
3.6 Merchant will pay Partner referral fees on a quarterly basis. Approximately
thirty (30) days following the end of each calendar quarter, Merchant will
send Partner a check for the referral fees earned on that were
shipped during that quarter, less any taxes that we are required by law to
withhold. However, if the fees payable to Partner for any calendar quarter
are less than $25.00, Merchant will hold those fees until the total amount
due is at least $25.00 or (if earlier) until this Agreement is terminated.
If a that generated a referral fee is returned or cancelled
by the customer, Merchant will deduct the corresponding fee from your next
quarterly payment. If there is no subsequent payment, Merchant will send
Partner a bill for the fee.
4. Ownership and Licenses.
4.1 Each party owns and shall retain all right, title and interest in its
names, logos, trademarks, service marks, trade dress, copyrights and
proprietary technology, including, without limitation, those names, logos,
trademarks, service marks, trade dress, copyrights and proprietary
technology currently used or which may be developed and/or used by it in
the future.
4.2 Merchant grants Partner a revocable, non-exclusive, worldwide license to
use, reproduce and transmit the name, logos, trademarks, service marks,
trade dress and proprietary technology, as designated in the Engagement or
during the registration process in The LinkShare Network-TM-, on Partner's
site solely for the purpose of creating links from Partner's site to
Merchant's site during Engagements. Except as expressly set forth in this
Agreement or permitted by applicable law, Partner may not copy, distribute,
modify, reverse engineer, or create derivative works from the same. Partner
may not sublicense, assign or transfer any such licenses for the use of the
same, and any attempt at such sublicense, assignment or transfer is void.
4.3 Partner grants Merchant a non-exclusive, worldwide, royalty-free license to
use, reproduce and transmit any graphic or banner ad submitted by Partner
solely for co-branding purposes or as a return link from Merchant's site to
Partner's site. Merchant will remove such graphic or banner ad upon
Partner's request.
5. Termination.
5.1 Either party may terminate any Engagement at any time by deleting their
acceptance of the Engagement through The LinkShare Network-TM-.
Termination of an Engagement shall not terminate this Agreement or any
other Engagement.
5.2 Either party may terminate this Agreement at any time, for any reason,
provided that they provide at least five day's prior written notice of
such termination to the other party and The LinkShare Network-TM-.
Termination of this Agreement shall also terminate any outstanding
Engagements. However, all rights to payment, causes of action and any
provisions which by their terms are intended to survive termination,
shall survive termination of this Agreement.
6. Representations.
6.1 Each party represents to the other that (a) it has the authority to
enter into this Agreement and sufficient rights to grant any licenses
granted hereby, and (b) any material which is provided to the other
party and displayed on the other party's site will not (i) infringe on
any third party's copyright, patent, trademark, trade secret or other
proprietary rights or right of publicity or privacy; (ii) violate any
applicable law, statute, ordinance or regulation; (iii) be defamatory or
libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws
regarding unfair competition, antidiscrimination or false advertising;
(vi) promote violence or contain hate speech; or (vii) contain viruses,
trojan horses, worms, time bombs, cancelbots or other similar harmful or
deleterious programming routines.
6.2 EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
7. Cross-Indemnification.
7.1 Each party hereby agrees to indemnify, defend and hold harmless the other
party and its affiliates, directors, officers, employees and agents,
from and against any and all liability, claims, losses, damages,
injuries or expenses (including reasonable attorneys' fees) brought by a
third party, arising out of a breach, or alleged breach, of any of its
representations or obligations herein.
8. LinkShare Required Provisions.
8.1 Merchant and Partner jointly and severally hereby agree to indemnify,
defend, and hold harmless The LinkShare Network-TM- and LinkShare
Corporation and its affiliates, officers, directors, employees and
agents (collectively, "LinkShare") from and against any and all
liability, claims losses, damages, injuries or expenses (including
reasonable attorneys' fees) directly or indirectly arising from or
relating to any Offer, Engagement, any other matter related to this
Agreement or the subject matter hereof any dispute relating thereto.
8.2 The parties agree that LinkShare may rely on any data, notice,
instruction or request furnished to LinkShare by either party which is
reasonably believed by LinkShare to be genuine and to have been sent or
presented by a person reasonably believed by LinkShare to be authorized
to act on behalf of one of the parties. In the event of any dispute
between the parties, the parties agree that to the extent the parties
contact and involve LinkShare, LinkShare may consult with and use
counsel of its own choice in connection with such dispute and the
reasonable fees and disbursements of LinkShare's counsel shall be within
the costs and disbursements covered by the indemnity specified in
Section 8.1 above.
8.3 The parties acknowledge and agree that this Agreement and the
Engagements are only made possible due to LinkShare and that the parties
shall not, for the duration of this Agreement and for twelve (12) months
thereafter, enter into any advertising, collaborations or other
commercial
arrangements with each other in connection with their sites on the
World Wide Web except via The LinkShare Network-TM-.
9. Limitation of Liability.
9.1 In no event shall either party be liable to the other party for any
direct, indirect, special, exemplary, consequential or incidental
damages, event if informed of the possibility of such damages.
9.2 The parties agree that The LinkShare Network-TM- and LinkShare
Corporation and its affiliates, officers, directors, employees and
agents shall not be liable to either party for any direct, indirect,
special, exemplary, consequential or incidental damages, even if
informed of the possibility of such damages.
10. General.
10.1 Each party shall act as an independent contractor and shall have no
authority to obligate or bind the other in any respect.
10.2 The parties agree that The LinkShare Network-TM- and LinkShare
Corporation are intended third party beneficiaries under this Agreement.
10.3 This Agreement has been made in and shall be construed and enforced in
accordance with the laws of the state of Merchant's headquarters. Any
action to enforce this Agreement shall be brought in the federal or
state courts located in that state. If you need to send official
correspondence, send it via registered mail to Merchant's headquarters
to the attention of Merchant's legal department.
10.4 This Agreement may be agreed to in more than one counterpart, each of
which together shall form one and the same instrument. The parties
agree that execution may be achieved in any format convenient to the
parties.
10.5 The provisions of this Agreement are independent of and separable from
each other, and no provision shall be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
11. Modification
Merchant may modify any of the terms and conditions contained in this
Agreement, at any time and in our sole discretion, by posting a change notice
on The LinkShare Network-TM- or a new agreement on our site. Modifications
may include, for example, changes in the scope of available referral fees,
fee schedules, payment procedures, and program rules. IF ANY MODIFICATION IS
UNACCEPTABLE TO PARTNER, PARTNER'S ONLY RECOURSE IS TO TERMINATE THIS
AGREEMENT. PARTNER'S CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR
POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE
BINDING ACCEPTANCE OF THE CHANGE.
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