<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
--- OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2000
OR
___ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________ to _________
Commission File No. 000-26799
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UBRANDIT.COM
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(Exact name of registrant as specified in its charter)
Nevada 87-0381646
------ ----------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
12626 High Bluff Drive, Suite 200, San Diego, CA.
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(Address of principal executive offices)
92130
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(Zip Code)
(858) 350-9566
----------------
(Registrant's telephone number,
including area code)
N/A
---
(Former name, former address and former
fiscal year, if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for at least the past 90 days.
YES _X_ NO __
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at April 30, 2000
----- -------------------------------
Common Stock $0.001 par value 11,738,333
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UBRANDIT.COM
INDEX
Page
----
PART I - FINANCIAL INFORMATION
- ------------------------------
Item 1. Financial Statements
Consolidated Balance Sheets at September 30, 1999 (restated) and
March 31, 2000 (unaudited) 3
Consolidated Statement of Operations for the Three Months Ended
March 31, 1999 (unaudited) and the Three Months Ended
March 31, 2000 (unaudited) 4
Consolidated Statements of Cash Flows for the Three Months Ended
March 31, 1999 (unaudited) and the Three Months Ended March 31,
31, 2000 (unaudited) 5
Notes to Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 7
Item 3. Quantitative and Qualitative Disclosure About Market Risk 9
PART II - OTHER INFORMATION
Item 1. Legal Proceedings 10
Item 2. Changes in Securities and Use of Proceeds 10
Item 3. Defaults Upon Senior Securities 10
Item 4. Submission of Matters to a Vote of Security Holders 10
Item 5. Other Information 10
Item 6. Exhibits and Reports on Form 8-K 10
Signatures 11
Index to Exhibits 12
CAUTIONARY NOTE ON FORWARD LOOKING STATEMENTS
This Quarterly Report contains certain forward-looking statements that
involve risks and uncertainties. These forward-looking statements are not
historical facts but rather are based on current expectations, estimates and
projections about our industry, our beliefs and assumptions. We use words such
as "anticipates," "expects," "intends," "plans," "believes," "seeks,"
"estimates" and variations of these words and similar expressions to identify
forward-looking statements. These statements are not guarantees of future
performance and are subject to certain risks, uncertainties and other factors,
some of which are beyond our control, are difficult to predict and could cause
actual results to differ materially from those expressed or forecasted in the
forward-looking statements. You should not place undue reliance on these
forward-looking statements included or otherwise incorporated in this Quarterly
Report, which reflect our management's view only on the date of filing of this
report. We undertake no obligation to update these statements to reflect events
or circumstances that occur after the filing date of this Quarterly Report or to
reflect the occurrence of unanticipated events.
2
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
---------------------
<TABLE>
Ubrandit.com and subsidiary
Consolidated Balance Sheets
<CAPTION>
September 30, March 31,
1999 2000
(restated) (unaudited)
---------------- -----------------
ASSETS
<S> <C> <C>
Current assets
Cash $ 5,613,922 $ 4,735,131
Accounts receivable 7,290 8,200
Subscription receivable 51,000 -
Prepaid expenses 20,750 -
Deposits 11,872 12,022
---------------- -----------------
Total current assets 5,704,834 4,755,353
Other assets:
Property and equipment - net of
accumulated depreciation 150,567 238,990
Core technology - net of accumulated
amortization 456,790 409,290
Goodwill - net of accumulated amortization 594,354 529,633
Organizational costs - net of accumulated
amortization 1,110 970
---------------- -----------------
$ 6,907,655 $ 5,934,236
================ =================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable $ 45,581 $ 110,432
Accrued expenses 19,324 17,728
Current portion of leases payable 5,129 5,425
Payroll taxes payable 7,607 7,250
---------------- -----------------
Total current liabilities 77,641 140,835
Other liabilities:
Leases payable, net of current portion 8,859 6,069
Stockholders' equity
Common stock, $0.001 par value,
25,000,000 shares authorized;
11,783,333 shares issued and
outstanding 11,738 11,738
Additional paid in capital 7,857,262 7,857,262
Accumulated deficit (1,047,845) (2,081,668)
---------------- -----------------
Total stockholders' equity 6,821,155 5,787,332
---------------- -----------------
$ 6,907,655 $ 5,934,236
================ =================
</TABLE>
See accompanying notes to consolidated financial statements.
3
<PAGE>
<TABLE>
Ubrandit.com and subsidiary
Consolidated Statements of Operations
<CAPTION>
Three months Three months Six months Six months
ended ended ended ended
March 31, March 31, March 31, March 31,
1999 2000 1999 2000
(unaudited) (unaudited) (unaudited) (unaudited)
---------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Revenue $ 60,480 $ 84,600 $ 60,480 $ 117,311
---------------- ---------------- ---------------- ----------------
Expenses:
Direct operating - 241,774 - 409,699
Sales, general and administrative 246,106 463,351 246,106 724,819
Depreciation and amortization 7,243 74,914 7,303 143,527
---------------- ---------------- ---------------- ----------------
Total operating expenses 253,349 780,039 253,409 1,278,045
---------------- ---------------- ---------------- ----------------
Operating (loss) (192,869) (695,439) (192,929) (1,160,734)
Other income (expense):
Interest income - 61,018 - 127,641
Interest expense (14,251) (347) (14,251) (730)
---------------- ---------------- ---------------- ----------------
(14,251) 60,671 (14,251) 126,911
---------------- ---------------- ---------------- ----------------
Net (loss) $ (207,120) $ (634,768) $ (207,180) $ (1,033,823)
================ ================ ================ ================
Per share information:
Weighted average shares
outstanding - basic and diluted 6,907,956 11,738,333 3,870,967 11,738,333
================ ================ ================ ================
Net (loss) per common share - basic
and diluted $ (0.03) $ (0.05) $ (0.05) $ (0.09)
================ ================ ================ ================
See accompanying notes to consolidated financial statements.
</TABLE>
4
<PAGE>
<TABLE>
Ubrandit.com and subsidiary
Consolidated Statements of Cash Flows
<CAPTION>
Three months Three months Six months Six months
ended ended ended ended
March 31, March 31, March 31, March 31,
1999 2000 1999 2000
(unaudited) (unaudited) (unaudited) (unaudited)
--------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Cash flows from operating activities:
Net (loss) $ (207,120) $ (634,768) $ (207,180) $ (1,033,823)
--------------- --------------- --------------- ---------------
Adjustments to reconcile net income (loss)
to net cash provided by (used in)
operating activities:
Depreciation and amortization 7,243 74,914 7,303 143,527
Changes in assets and liabilities: - - - -
(Increase) in accounts receivable (5,697) - (5,697) (910)
Decrease in subscription receivable - - - 51,000
(Increase) in employee advances (150) - (150) -
(Increase) decrease in prepaid expenses (2,049) 4,016 (1,662) 20,750
(Increase) in deferred offering costs (8,000) - (5,000) -
(Increase) in deposits (237) (150) (237) (150)
(Increase) in organizational costs (1,000) - (1,000) -
Increase in accounts payable - 92,063 - 64,852
Increase (decrease) in accrued expenses 42,192 (72) 42,192 (1,596)
Increase in due to stockholder 4,990 - 4,990 -
Increase (decrease) in payroll taxes payable 11,489 - 11,489 (357)
Increase in accrued interest 14,251 - 14,251 -
--------------- --------------- --------------- ---------------
Total adjustments 63,032 170,771 66,479 277,116
--------------- --------------- --------------- ---------------
Net cash provided by (used in) operating
activities (144,088) (463,997) (140,701) (756,707)
--------------- --------------- --------------- ---------------
Cash flows from investing activities:
Purchase of fixed assets (41,087) (99,141) (41,087) (119,590)
Proceeds from related party 100,000 - 100,000 -
--------------- --------------- --------------- ---------------
Net cash provided by (used in) investing activities 58,913 (99,141) 58,913 (119,590)
--------------- --------------- --------------- ---------------
Cash flows from financing activities:
Repayments of capital lease obligations - (1,265) - (2,494)
Net proceeds from issuance of common
stock, net of issuance costs 937,000 - 975,400 -
--------------- --------------- --------------- ---------------
Net cash provided by (used in)
financing activities 937,000 (1,265) 975,400 (2,494)
--------------- --------------- --------------- ---------------
Net increase (decrease) in cash 851,825 (564,403) 893,612 (878,791)
Cash, beginning 89,741 5,299,534 47,954 5,613,922
--------------- --------------- --------------- ---------------
Cash, ending $ 941,566 $ 4,735,131 $ 941,566 $ 4,735,131
=============== =============== =============== ===============
Supplemental cash flow information:
Cash paid for interest $ - $ 347 $ - $ 730
=============== =============== =============== ===============
See accompanying notes to consolidated financial statements.
</TABLE>
5
<PAGE>
Ubrandit.com and Subsidiary
Notes to Consolidated Financial Statements
(Unaudited)
Note 1. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements, which
include the accounts of Ubrandit.com and subsidiary (the "Company"), have been
prepared in accordance with generally accepted accounting principles for interim
financial information. Pursuant to the rules of the Securities and Exchange
Commission they do not include all of the information and footnotes required by
generally accepted accounting principles for complete financial statements. In
the opinion of management, all adjustments, consisting only of normal recurring
accruals considered necessary for a fair presentation, have been included in the
accompanying unaudited financial statements. All significant intercompany
transactions and balances have been eliminated in consolidation. Operating
results for the six and three months ended March 31, 2000 and 1999 are not
necessarily indicative of the results that may be expected for the full year
ending September 30, 2000. For further information, refer to the consolidated
financial statements and notes thereto, included in the Company's Transition
Report on Form 10-K for the nine months ended September 30, 1999.
Note 2. COMPREHENSIVE INCOME
The Company follows Statement of Financial Accounting Standards No. 130,
"Reporting Comprehensive Income" ("SFAS No. 130"). SFAS No. 130 establishes
standards for reporting and display of comprehensive income and its components
in the financial statements. For both periods presented, there were no
differences between reported net income and comprehensive income.
6
<PAGE>
Item 2. Management's Discussion and Analysis or Plan of Operations.
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RECENT EVENTS
In September 1999 the Company launched its Branding Affiliate program in
conjunction with the launch of JungleJeff.com the Company's e-commerce site. The
Company now has over 4,500 sites in the Branding Affiliate program and has
concentrated much of its effort this fiscal quarter in enrolling media
properties in the Affiliate Program. In April 2000 the Company announced that
Communications Corporation of America (CC of A) entered into a multi-year
agreement with the Company. Under the agreement, 9 television and 7 radio
station Web properties (under the CC of A umbrella) will utilize the Company's
Branding Affiliate technology. Also in April 2000 the Company announced that it
had entered into a multi-year agreement with White Knight Broadcasting whereby
White Knight will utilize the Company's eCommerce Branding Affiliate technology
for 7 of its television station web properties. Including the above mentioned
agreements the Company added a total of 16 television stations and 31 radio
stations to the Branding Affiliate program during the month of April. In May
2000 the Company announced the addition of two new stations owned by Clear
Channel Communications and five other radio stations as additions to its
Branding Affiliate Program.
The Company announced the beta test launch of its fully brandable
Stockstudy.com, the Company's online financial market information and portfolio
services site. Branding templates for Stockstudy.com are going through final
beta testing with certain Branding Affiliates. It is expected that
Stockstudy.com will be available for all Branding Affiliates in the beginning of
the second calendar quarter of 2000.
Recently the Company completed the formation of UbranditISP, a wholly owned
subsidiary of the Company formed to provide businesses, affinity groups, and
individuals with a brandable ISP (Internet Service Provider) Portal service.
UbranditISP launched BigRamp.com on April 27, 2000, a fully functioning online
template featuring various available design options for a private labeled site.
UbranditISP can now offer customization of the Bigramp.com model of
"transparency" to match a client's existing web site, enabling the client to
offer internet access via its own brand and identity.
On February 24, 2000 the Board of Directors was increased to six directors and
James W. Truher was appointed as a Director to serve in said capacity until the
next annual meeting of the shareholders and until his successor is elected and
duly qualified. Mr. Truher brings to the Board of Directors 26 years of
technical and executive experience with AT&T as an area Vice President. Mr.
Truher has senior management experience in the cable and telephone networks with
such companies and associations as Selec Tel (founder), Polaris Intercom, the
Bell System (at AT&T), Pacific Telephone, and the Society of Television
Engineers (past President).
On March 21, 2000 the issued and outstanding shares of the Company's $.001 par
value Common Stock were listed on the American Stock Exchange ("AMEX") and
commenced trading under the symbol UBI.
Three Months Ended March 31, 2000 Compared to Three Months Ended March 31, 1999
Consolidated revenues for the three months ended March 31, 2000 of
$84,600 were 40% higher as compared to $60,480 for the period ended March 31,
1999. Approximately 94% of the revenue for the three months ended March 31,
2000, was generated from newly commenced sales on the JungleJeff.com and branded
e-commerce websites and the renting of marketing lists generated the remaining
portion.
7
<PAGE>
Direct operating expenses were $241,774 for the three months ended
March 31, 2000, as compared to no such expenses for the corresponding period in
1999. The increase in direct operating expenses was due primarily to an increase
of $145,900 of payroll costs associated with the development of websites,
$74,300 of costs of products sold through the JungleJeff.com and branded
e-commerce websites, and $17,100 of costs associated with the purchase of data
feeds and other costs for the websites.
Sales, general and administrative expenses increased from $246,106 for
the three months ended March 31, 1999 to $463,351 for the three months ended
March 31, 2000. The increase was primarily due to the following factors:
accounting and legal fees associated with filings with the Securities and
Exchange Commission of $73,600, marketing expenses of $63,700, travel expenses
of $45,400, research and development costs of $43,100, listing expenses with the
American Stock Exchange of $42,500, insurance expenses of $32,800, rent expense
of $31,800, administrative payroll of $21,300, internet service providers
expense of $18,400, office expenses of $15,900, expense of $8,800 to facilitate
fair and timely dissemination of press releases, and business fees of $7,300.
For the three months ended March 31, 2000, depreciation and
amortization costs were $74,914, as compared to $7,243 for the period ended
March 31, 1999. The increase was due to amortization of core technology and
goodwill recorded from the acquisition of Global Investors Guide on March 11,
1999, and depreciation of certain fixed assets.
In sum, revenue less operating expenses resulted in an operating loss
of $695,439 for the three months ended March 31, 2000, as compared to an
operating loss of $192,869 for the period ended March 31, 1999.
Interest expense for the three months ended March 31, 2000 was $347, as
compared to $14,251 for the period ended March 31, 1999. This expense related to
interest paid on an equipment lease. The prior period interest expense was paid
on debt that was paid off entirely.
For the three months ended March 31, 2000, interest income increased
$61,108 as compared to no interest income for the period ended March 31, 1999.
The increase in interest income was due to interest earned on cash balances
received from the equity offerings.
Six Months Ended March 31, 2000 Compared to Six Months Ended March 31, 1999
Consolidated revenues for the six months ended March 31, 2000 of
$117,311 were 94% higher compared to $60,480 in revenues for the corresponding
period in 1999. Approximately 87% of the revenue for the six months ended March
31, 2000, was generated from newly commenced sales on the JungleJeff.com and
branded e-commerce websites and the renting of marketing lists generated the
remaining portion.
Direct operating expenses were $409,699 for the six months ended March
31, 2000, as compared to no such expenses for the corresponding period in 1999.
The increase in direct operating expenses was due primarily to an increase of
$287,000 of payroll costs associated with the development of websites, $91,000
of costs of products sold through the JungleJeff.com and branded e-commerce
websites, and $26,400 of costs associated with the purchase of data feeds and
other costs for the websites.
Sales, general and administrative expenses increased from $246,106 for
the six months ended March 31, 1999 to $724,819 for the six months ended March
31, 2000. The increase was primarily due to the following factors: accounting
and legal fees associated with filings with the Securities and Exchange
Commission of $145,500, marketing expenses of $89,600, rent expense of $67,400,
travel expenses of $61,800, research and development costs of $48,300,
administrative payroll of $42,600, listing expenses with the American Stock
Exchange of $42,500, insurance expenses of $41,900, internet service providers
expense of $31,800, office expenses of $24,300, business fees of $17,900, and
expense of $14,700 to facilitate fair and timely dissemination of press
releases.
For the six months ended March 31, 2000, depreciation and amortization
costs were $143,527, as compared to $7,303 for the period ended March 31, 1999.
The increase was due to amortization of core technology and goodwill recorded
from the acquisition of Global Investors Guide on March 11, 1999, and
depreciation of certain fixed assets.
8
<PAGE>
In sum, revenue less operating expenses resulted in an operating loss
of $1,160,734 for the six months ended March 31, 2000, as compared to an
operating loss of $192,929 for the period ended March 31, 1999.
Interest expense for the six months ended March 31, 2000 was $730, as
compared to $14,251 for the period ended March 31, 1999. This expense related to
interest paid on an equipment lease. The prior period interest expense was paid
on debt that was paid off entirely.
For the six months ended March 31, 2000, interest income increased
$127,641 as compared to no interest income for the period ended March 31, 1999.
The increase in interest income was due to interest earned on cash balances
received from the equity offerings.
LIQUIDITY AND CAPITAL RESOURCES
At present, the Company is generating revenue only on a limited basis.
The Company's main source of funds has been the sale of the Company's equity
securities in private placements. Through March 31, 2000, the Company has issued
9,412,333 shares of its Common Stock for approximately $6,382,659, including
proceed generated through its most recent offering and after deduction of
offering expenses. The Company had $4,735,131 in cash at March 31, 2000, the
date of its unaudited financial statements for the second quarter of this fiscal
year. Since June 30, 1999, the Company has raised approximately $4,446,999 in
cash, less offering expenses of $35,540, through the sale of Common Stock
pursuant to the exemption from registration available under Regulation S of the
Securities Act of 1933, as amended. The Company currently is using these funds
mainly to develop and market the Company's destination Web sites and its
co-branding and private label technology and to fund certain ongoing general and
administrative expenses.
The Company generates revenue on a limited basis from its e-commerce
destination site JungleJeff.com and its branded book, music and video store Web
sites. The Company expects to generate material revenue from operations
following the anticipated successful roll-out of the Company's marketing
campaign during the 2000 fiscal year. Further, if the Company realizes revenue
from branding, advertising, sponsorship fees, and custom programming, said
revenue will be subject to all of the risks of a new enterprise in a very
competitive industry and may not yield any profit for the Company.
The Company expects that its present cash reserves are sufficient to
finance its operating capital requirements at projected rates for a period of
approximately 24 months following the filing date of this Quarterly Report.
Thereafter, the Company will depend on operating revenue to finance its
continuing operations. The Company will also endeavor to secure additional
sources of equity or debt financing to satisfy its capital needs. The Company
has no commitment at this time for any such additional capital and may be unable
to raise the additional capital necessary to support its operations.
Item 3. Quantitative and Qualitative Disclosure About Market Risk.
----------------------------------------------------------
The Company does not own financial instruments that are subject to
market risk.
9
<PAGE>
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
-----------------
None.
Item 2. Changes in Securities and Use of Proceeds.
-----------------------------------------
None.
Item 3. Defaults upon Senior Securities.
-------------------------------
None.
Item 4. Submission of Matters to a Vote of Security Holders.
---------------------------------------------------
None.
Item 5. Other Information.
-----------------
None.
Item 6. Exhibits and Reports on Form 8-K
--------------------------------
Reference is made to the Exhibit Index. The Company filed no reports on
Form 8-K during the quarter.
10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Registrant:
UBRANDIT.COM
Dated: May , 2000 By /s/ Jeff Phillips
-------------------------
Jeff Phillips
President, CEO, Chairman
Dated: May , 2000 By /s/ Roger C. Royce
-------------------------
Roger C. Royce
Chief Operating Officer
11
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description of Exhibits
- ------- -----------------------
2.1 Agreement and Plan of Reorganization for the Acquisition of all of the
Outstanding Shares of Common Stock of Global Investors Guide by
Ubrandit.com (1)
3.1 Ubrandit.com Articles of Incorporation and amendments (1)
3.2 Ubrandit.com By-laws (1)
3.3 Registrant's Restated Bylaws (2)
4.1 Specimen of Common Stock Certificate (2)
10.1 1999 Stock Option and Incentive Plan (1)
10.2 Form of Incentive Stock Option Agreement (1)
10.3 Form of Non-Statutory Stock Option Agreement (1)
10.4 Information Distribution Agreement with S&P Comstock dated as of
January 16, 1998 (1)
10.5 Database License Agreement with Baker & Taylor, Inc. dated as of
January 1, 1999 (1)
10.6 Computer Software License Agreement with Townsend Analytics, dated
April 21, 1998 (1)
10.7 License Agreement with Muze Inc. [undated] (1)
10.8 Agreement with Communications Corporations of America, dated April 3,
2000 *
10.9 Agreement with White Knight Broadcasting, dated April 20,2000 *
11.1 Statement of Computation of per share earnings (reference is made to
the Statement of Operations included in the Financial Statements filed
herewith
21.1 Subsidiary of Registrant Global Investment Guide, Inc. Articles of
Incorporation (1)
21.2 Subsidiary of Registrant Global Investment Guide, Inc. By-laws (1)
27.1 Financial Data Schedule *
- ------------------
* Filed herewith.
(1) Previously filed with the Securities and Exchange Commission on the
Company's Registration Statement on Form 10.
(2) Previously filed with the Securities and Exchange Commission on the
Company's Registration Statement on Form 8-A.
12
MASTER AGREEMENT
ECOMMERCE BRANDING AFFILIATE AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 3rd day of
April, 2000, by and between UBRANDIT.COM, a Nevada Corporation ("Ubrandit") and
COMMUNICATIONS CORP ( the "Branding Affiliate").
W I T N E S S E T H:
WHEREAS, Ubrandit is an Internet commerce and content provider with a
brandable site (the "Book, Music, Video Store") featuring books, music tapes and
CDs, and movie videos and DVDs ("Ubrandit Products") with proprietary branding
technology and methodology systems, and
WHEREAS, The Branding Affiliate is a company which desires to brand
under its brand name to its customers and prospects the Book, Music, Video Store
and sell books, music tapes and CDs, and videos and DVDs ("Ubrandit Products"),
and
WHEREAS, Ubrandit desires to pay Branding Affiliate a commission for
sales and allow Branding Affiliate to participate in specific programs available
to Branding Affiliates pursuant to the terms of this Agreement, and
WHEREAS, The Branding Affiliate desires to market these branded
services in the markets set forth in the list attached hereto as Exhibit "A."
NOW, THEREFORE, in consideration of the promises and the mutual
covenants herein contained, it is hereby agreed as follows:
1.BRANDING AFFILIATE SPECIFICATIONS
The Branding Affiliate agrees to provide Ubrandit with all information required
by the specification application attached hereto as Exhibit "B." Upon completion
of said specification application and the receipt of payment by Ubrandit of any
applicable set up fees, Ubrandit shall enroll the Branding Affiliate into
Ubrandit's branding program pursuant to the terms of this Agreement (the
"Branding Program"). However, Ubrandit, reserves the right to cancel this
Agreement and terminate the Branding Affiliate's enrollment in the Branding
Program with or without cause at any time and for any reason, including, but not
limited to, a determination (in Ubrandit's sole discretion) that the Branding
Affiliate's site is unsuitable for the Branding Program due to its inclusion of
content that is in any way unlawful, harmful, threatening, defamatory, obscene,
harassing, or racially, ethnically, or otherwise objectionable.
2. UBRANDIT.COM EXCLUSIVE SELLER OF BOOKS, MUSIC, VIDEOS AND DVDS
Subject to the terms and conditions set forth below, Ubrandit shall be the
exclusive seller of books, music CDs and tapes, and videos and DVDs on the
Branding Affiliate site. The Branding Affiliate agrees that the Branding
Affiliate will not (directly or indirectly) allow any other person or entity to
sell books, music CDs and tapes, and videos and DVDs on the Branding Affiliate
site or link their site to the Branding Affiliate in connection with the sale of
books, music CDs and tapes, and videos and DVDs. This agreement does not prevent
a Branding Affiliate from selling/fulfilling its own proprietary published
titles on its site.
3. THE BRANDING AFFILIATE BOOK, MUSIC, VIDEO STORE
Ubrandit will make available to the Branding Affiliate certain proprietary
content including graphic and textual links which will allow the Branding
Affiliate to present the interactive Book, Music, Video Store in a window on the
Branding Affiliate site. By accessing the content of said window users of
Branding Affiliate's site will be able to purchase Ubrandit Products. During the
setup process and pursuant to the terms of this Agreement, the Branding
Affiliate will be permitted to make certain customizations to the look of the
window displaying the content of the Book, Music, Video Store to give the look
of transparency and to conform the window to the colors and style of the
<PAGE>
Branding Affiliate site. The Branding Affiliate will have the discretion as to
colors, certain textual references, and the use of logos in the customizing of
the window that presents the Book, Music Video Store on the Branding Affiliate
site and links to the Ubrandit site; however, as described below, the linking to
the Ubrandit site is subject to the terms and conditions hereof, and
Ubrandit.com has the right to monitor the Branding Affiliate site to ensure that
it is in compliance with this Agreement.
4. UBRANDIT'S RESPONSIBILITIES
Ubrandit.com will provide the Branding Affiliate with the linking information
necessary to allow the Branding Affiliate to display the Book, Music, Video
Store on the Branding Affiliate site. As part of the content provided, Ubrandit
will provide certain search engines to assist user in their purchase of Ubrandit
Products. Ubrandit will be solely responsible for processing every order placed
by a customer following a special link from the Branding Affiliate site, for
tracking the volume and amount of sales generated by the Branding Affiliate
site, and for providing information to Branding Affiliates regarding sales
statistics. Ubrandit will be responsible for order entry, payment processing,
shipping, cancellations, returns, and related customer service.
5. OTHER TERMS REGARDING BRANDING AFFILIATES
a. After the Branding Affiliate's enrollment in the Branding Affiliate Program
and the Branding Affiliate's customization of the Book, Music, Video Store, the
Branding Affiliate shall prominently display links, which comply with the terms
and conditions on this Agreement, throughout the Branding Affiliate site as the
Branding Affiliate see fit to the window displaying the Book, Music, Video
Store. b. As a Branding Affiliate, the Branding Affiliate will be entitled to
earn commissions as set forth in paragraphs 6 and 7 below. The Branding
Affiliate will also be entitled to participate in certain additional programs
offered by Ubrandit that are opened to all Branding Affiliates.
c. Ubrandit has the right in its sole discretion to monitor the Branding
Affiliate site at any time and from time to time to determine if the Branding
Affiliate is in compliance with the terms of this Agreement.
6. EARNING COMMISSIONS
Only Ubrandit Products that are (i) sold by us, (ii) purchased by users linking
to our site from the Book, Music, Video Store displayed on the Branding
Affiliate site ("Linked Users"), (iii) shipped by us, and (iv) for which
Ubrandit.com have received full payment will qualify for a commission (each, a
"Qualifying Purchase"). Commission rates will be based on the aggregate amount
actually paid to us for Qualifying Purchases of the Ubrandit Products, excluding
amounts collected by us for sales taxes, duties, gift-wrapping, shipping,
handling, and similar charges, amounts due to credit card fraud and bad debt,
and credits for returned goods ("Net Sales"). All available items on our site
will be included in the computation of Net Sales. Commission rates are as
follows: Ubrandit will pay the Branding Affiliate a commission rate of 5% of the
Net Sales amount per item for all applicable books, music CDs and tapes, videos
and DVDs the Branding Affiliate sells through the Book, Music Video Store
displayed on the Branding Affiliate site to Linked Users. The Branding Affiliate
may also either opt to receive a larger commission by increasing the cost of
Ubrandit Products to its customers depending upon its revenue model or opt to
receive 0% commissions and pass an additional 5% discount on to the Branding
Affiliate customers.
7. PAYMENT OF COMMISSIONS
Each calendar quarter (every three months) that the Branding Affiliate
commission earned exceeds $50.00 (less any taxes required to be withheld under
applicable law) Ubrandit will send the Branding Affiliate a check and a
statement of activity to the Branding Affiliate. If the Branding Affiliate
commission earned for any quarter is less than $50.00, the total amount will be
carried until the Branding Affiliate aggregate commission exceeds $50.00 at
which time it will be paid at the end of the quarter in which the aggregate
commission exceeded $50.00. Such commission checks and statements of activity
will be sent approximately thirty (30) days after the end of the respective
calendar quarter.
<PAGE>
8. ACCESS TO REPORTS
Ubrandit will provide Branding Affiliate with access to certain sales statistics
to verify the sales made and commission earned and paid regarding Branding
Affiliate.
9. CUSTOMERS, POLICIES, AND PRICING
Customers who buy Ubrandit Products through the Branding Program will be deemed
to be customers of Ubrandit. Accordingly, all of our rules, policies, and
operating procedures concerning customer orders, customer service, and Ubrandit
Product sales will apply to those customers. Ubrandit may change our policies
and operating procedures from time to time. For example, Ubrandit will determine
the prices to be charged for Ubrandit Products sold under the Branding Program
in accordance with our own pricing policies. Prices and availability of Ubrandit
Products may vary from time to time. Since price changes may affect products
that the Branding Affiliate has noted or highlighted on the Branding Affiliate
site, the Branding Affiliate may not include price information in any
descriptions of Ubrandit Products that the Branding Affiliate may include on the
Branding Affiliate site. Ubrandit.com will use commercially reasonable efforts
to present accurate information, but Ubrandit cannot guarantee any information
about Ubrandit Products displayed in the Book, Music, Video, Store, including
but not limited to, the accuracy of any information regarding availability,
description, or price of any Ubrandit Product.
10. PUBLICITY REGARDING UBRANDIT
The Branding Affiliate shall not create, publish, distribute, or permit any
written material that makes reference to us without first submitting such
material to us and receiving our written consent, which Ubrandit agrees shall
not be unreasonably withheld.
11. LICENSES REGARDING CONTENT, TRADEMARKS, AND OTHER LICENSED MATERIAL
a. UBRANDIT GRANTS THE BRANDING AFFILIATE A NON-EXCLUSIVE, NON-TRANSFERABLE,
REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH LINKS SOLELY IN ACCORDANCE WITH
THE TERMS OF THIS AGREEMENT AND (ii) TO DISPLAY THE CONTENT, TRADEMARKS AND
LOGOS AND SIMILAR IDENTIFYING MATERIAL CONTAINED IN THE BOOK, MUSIC, VIDEO STORE
(COLLECTIVELY, THE "LICENSED MATERIALS") FOR THE SOLE PURPOSE OF ENABLING AND
FACILITATING LINKING FROM THE BRANDING AFFILIATE SITE TO OUR SITE SO THAT THE
BRANDING AFFILIATE USERS CAN PURCHASE UBRANDIT PRODUCTS. SAID LICENSE OF THE
LICENSED MATERIAL IS GRANTED SOLELY IN CONNECTION WITH SUCH LINKS. THE BRANDING
AFFILIATE MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY
OTHER THAN CUSTOMIZATION AUTHORIZED PURSUANT TO THIS AGREEMENT OF THE LINKED
WINDOW ON THE BRANDING AFFILIATE SITE CONTAINING THE BOOK, MUSIC, VIDEO STORE.
ALL CUSTOMIZATION OF THE DISPLAY OF THE BOOK, MUSIC, VIDEO, STORE ON THE
BRANDING AFFILIATE SITE MUST BE ACCOMPLISHED THROUGH THE USE OF CUSTOMIZATION
PROGRAMS APPEARING AT THE WWW.UBRANDIT.COM SITE FOR THE CUSTOMIZATION OF COLOR,
GRAPHICS, AND TEXT AND FOR THE INCLUSION OF LOGOS. THE BRANDING AFFILIATE ARE
ONLY ENTITLED TO USE THE LICENSED MATERIALS TO THE EXTENT THAT THE BRANDING
AFFILIATE IS A MEMBER IN GOOD STANDING OF THE BRANDING PROGRAM.
b. The Branding Affiliate shall not make any specific use of any Licensed
Materials for purposes other than selling Ubrandit Products on the Branding
Affiliate site, without first submitting a sample of such to Ubrandit and
obtaining the prior written consent of Ubrandit, which consent shall not be
unreasonably withheld. The Branding Affiliate agrees not to use the Licensed
Materials in any manner that is disparaging or that otherwise portrays Ubrandit
in a negative light. Ubrandit reserves all of its rights in the Licensed
Materials and its other proprietary rights. Ubrandit may revoke Branding
Affiliate's license at any time, by giving the Branding Affiliate written
notice.
c. The Branding Affiliate grants to us a non-exclusive license to utilize the
Branding Affiliate names, titles, and logos, to advertise, market, promote, and
publicize in any manner our rights hereunder; provided, however, that
Ubrandit.com shall not be required to so advertise, market, promote, or
publicize. This license shall terminate upon the effective date of the
expiration or termination of this Agreement.
<PAGE>
12. BRANDING AFFILIATE SITE OBLIGATIONS
a. The Branding Affiliate will be solely responsible for the development,
operation, and maintenance of the Branding Affiliate site and for all materials
that appear on the Branding Affiliate site. Such responsibilities include, but
are not limited to, the technical operation of the Branding Affiliate site and
all related equipment, links on the Branding Affiliate site to the linked Book,
Music, Video, Store window appearing on the Branding Affiliate site; the
accuracy and propriety of materials posted on the Branding Affiliate site
(including, but not limited to, all Ubrandit Product-related materials);
ensuring that materials posted on the Branding Affiliate site do not violate or
infringe upon the rights of any third party and are not libelous or otherwise
illegal.
b. Ubrandit disclaims all liability for all such matters. Further, the Branding
Affiliate will indemnify and hold us harmless from all claims, damages, and
expenses (including, without limitation, attorneys' fees) relating to the
development, operation, maintenance, and contents of the Branding Affiliate
site.
13. TERM OF THE AGREEMENT
The parties agree that the term of this Agreement shall commence upon the date
of execution of this Agreement set forth above and shall continue for a term of
two (2) years. This Agreement shall automatically be renewed for additional
periods of one (1) each, without additional consideration, unless terminated by
either party through written Notice of Intention to Terminate, delivered not
less than ninety (90) days prior to the end of the current . The Branding
Affiliate is only eligible to earn commission on sales occurring during the
term, and commissions earned through the date of termination will remain payable
only if the related Ubrandit Product orders are not cancelled or returned.
Ubrandit may withhold the Branding Affiliate's final payment for a reasonable
time to ensure that the correct amount is paid.
14. MODIFICATIONS OF THE AGREEMENT
The parties may modify this agreement at any time, however, any modification
must be in writing and be signed by both parties.
15. RELATIONSHIP OF PARTIES
Branding Affiliate relationship with Ubrandit is one of independent contractors,
and nothing in this Agreement will create any partnership, joint venture,
agency, franchise, sales representative, or employment relationship with
Ubrandit.com or the parties herein. The Branding Affiliate will have no
authority to make or accept any offers or representations on Ubrandit's behalf.
The Branding Affiliate will not make any statement, whether on the Branding
Affiliate site or otherwise, that reasonably would contradict anything in this
paragraph.
16. DISCLAIMERS
Ubrandit makes no express or implied warranties or representations with respect
to the Branding Program or any Ubrandit Products sold through the Branding
Program (including, without limitation, warranties of fitness, merchantability,
non-infringement, or any implied warranties arising out of course of
performance, dealing, or trade usage). In addition, Ubrandit make no
representation that the operation of its site will be uninterrupted or error
free, and Ubrandit will not be liable for the consequences of any interruptions
or errors.
17. BRANDING AFFILIATE REPRESENTATIONS AND WARRANTIES
The Branding Affiliate hereby represents and warrants to as follows:
a. This Agreement has been duly and validly executed and delivered by the
Branding Affiliate and constitutes the Branding Affiliate legal, valid, and
binding obligation, enforceable against the Branding Affiliate in accordance
with its terms.
b. The execution, delivery, and performance by the Branding Affiliate of this
Agreement and the consummation by the Branding Affiliate of the transactions
contemplated hereby will not, with or without the giving of notice, the lapse of
time, or both, conflict with or violate (i) any provision of law, rule, or
regulation to which the Branding Affiliate is subject, (ii) any order, judgment,
or decree applicable to the Branding Affiliate or binding upon the Branding
Affiliate assets or properties, (iii) any provision of the Branding Affiliate
by-laws or certificate of incorporation, or (iv) any agreement or other
instrument applicable to the Branding Affiliate or binding upon the Branding
Affiliate assets or properties.
<PAGE>
c. The Branding Affiliate is the sole and exclusive owner of any trademarks,
trade name service marks, logos or copyrighted material which the Branding
Affiliate will use in the Branding Affiliate customization of the Book, Music,
Video Store window appearing on the Branding Affiliate site and the Branding
Affiliate has the right and power to grant to Ubrandit the license to use the
Branding Affiliate trademarks in the manner contemplated herein, and such grant
does not and will not (i) breach, conflict with, or constitute a default under
any agreement or other instrument applicable to the Branding Affiliate or
binding upon the Branding Affiliate assets or properties, or (ii) infringe upon
any trademark, trade name, service mark, copyright, or other proprietary right
of any other person or entity.
d. No consent, approval, or authorization of, or exemption by, or filing with,
any governmental authority or any third party is required to be obtained or made
by the Branding Affiliate in connection with the execution, delivery, and
performance of this Agreement or the taking by the Branding Affiliate of any
other action contemplated hereby.
e. There is no pending or, to the best of the Branding Affiliate knowledge,
threatened claim, action, or proceeding against the Branding Affiliate, or any
affiliate of the Branding Affiliates, with respect to the execution, delivery,
or consummation of this Agreement, or with respect to the Branding Affiliate
trademarks, trade names, or service marks and, to the best of the Branding
Affiliate knowledge, there is no basis for any such claim, action, or
proceeding.
18. CONFIDENTIALITY
Except as otherwise provided in this Agreement or with Ubrandit's consent the
Branding Affiliate hereto agree that all information including, without
limitation, the terms of this Agreement, business and financial information,
customer and vendor lists, and pricing and sales information, concerning
Ubrandit or the Branding Affiliate, respectively, or any Branding Affiliates
provided by or on behalf of any of them shall remain strictly confidential and
secret and shall not be utilized, directly or indirectly, by the Branding
Affiliate for the Branding Affiliate's own business purposes other than
contemplated by this agreement or for any other purpose except and solely to the
extent that any such information is generally known or available to the public
through a source or sources other than such party hereto or its affiliates.
Notwithstanding the foregoing, the Branding Affiliate is hereby authorized to
deliver a copy of any such information (a) to any person pursuant to a subpoena
issued by any court or administrative agency, (b) to its accountants, attorneys,
or other agents on a confidential basis, and (c) otherwise as required by
applicable law, rule, regulation, or legal process including, without
limitation, the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, and the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
19. LIMITATION OF LIABILITY
UBRANDIT 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 AFFILIATE NETWORK, EVEN IF UBRANDIT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS
AGREEMENT AND THE BRANDING AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL
COMMISSIONS PAID OR PAYABLE TO THE BRANDING AFFILIATE UNDER THIS AGREEMENT AND
REFUNDABLE SETUP FEES TO WHICH THE BRANDING AFFILIATE ARE ENTITLED, IF ANY.
20. INDEMNIFICATION
The Branding Affiliate hereby agrees to indemnify and hold harmless Ubrandit and
its subsidiaries and affiliates, and their directors, officers, employees,
agents, shareholders, affiliates, members, and other owners, against any and all
claims, actions, demands, liabilities, losses, damages, judgments, settlements,
costs, and expenses (including reasonable attorneys' fees) (any or all of the
foregoing hereinafter referred to as "Losses") insofar as such Losses (or
actions in respect thereof) arise out of or are based on (i) any claim that
Ubrandit's use of any trademarks provided by the Branding Affiliate infringes on
any trademark, trade name, service mark, copyright, license, intellectual
property, or other proprietary right of any third party, (ii) any
misrepresentation of a representation or warranty made by the Branding Affiliate
herein or any breach of a covenant and agreement made by the Branding Affiliate
herein, or (iii) any claim related to the Branding Affiliate site, including,
without limitation, content therein not attributable to Ubrandit.
<PAGE>
21. INDEPENDENT INVESTIGATION
THE BRANDING AFFILIATE ACKNOWLEDGE THAT THE BRANDING AFFILIATE HAS READ THIS
AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. THE BRANDING AFFILIATE
UNDERSTANDS THAT UBRANDIT MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT
CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS
AGREEMENT OR OPERATE UBRANDIT SITES THAT ARE SIMILAR TO OR COMPETE WITH BRANDING
AFFILIATE'S SITE. THE BRANDING AFFILIATE HAS INDEPENDENTLY EVALUATED THE
DESIRABILITY OF PARTICIPATING IN THE BRANDING PROGRAM AND IS NOT RELYING ON ANY
REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS
AGREEMENT.
22. GOVERNING LAW
This 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 California, and the Branding Affiliate irrevocably consents to the
jurisdiction of such courts. The Branding Affiliate may not assign this
Agreement, by operation of law or otherwise, without our prior written consent.
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 assigns. Failure to enforce the Branding Affiliate strict
performance of any provision of this Agreement will not constitute a waiver of
our right to subsequently enforce such a provision or any other provision of
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first above written.
UBRANDIT.COM
By: /S/ JEFF PHILLIPS
---------------------------
Name: JEFF PHILLIPS
---------------------------
Title: PRESIDENT
---------------------------
COMMUNICATIONS CORP
- ---------------------------
By: /S/ CLARK L. WHITE
---------------------------
Name: CLARK L. WHITE
---------------------------
Title: VICE PRESIDENT
---------------------------
MASTER AGREEMENT
ECOMMERCE BRANDING AFFILIATE AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 20th day of
April, 2000, by and between UBRANDIT.COM, a Nevada Corporation ("Ubrandit") and
WHITE KNIGHT BROADCASTING, INC. ( the "Branding Affiliate").
W I T N E S S E T H:
WHEREAS, Ubrandit is an Internet commerce and content provider with a
brandable site (the "Book, Music, Video Store") featuring books, music tapes and
CDs, and movie videos and DVDs ("Ubrandit Products") with proprietary branding
technology and methodology systems, and
WHEREAS, The Branding Affiliate is a company which desires to brand
under its brand name to its customers and prospects the Book, Music, Video Store
and sell books, music tapes and CDs, and videos and DVDs ("Ubrandit Products"),
and
WHEREAS, Ubrandit desires to pay Branding Affiliate a commission for
sales and allow Branding Affiliate to participate in specific programs available
to Branding Affiliates pursuant to the terms of this Agreement, and
WHEREAS, The Branding Affiliate desires to market these branded
services in the markets set forth in the list attached hereto as Exhibit "A."
NOW, THEREFORE, in consideration of the promises and the mutual
covenants herein contained, it is hereby agreed as follows:
1.BRANDING AFFILIATE SPECIFICATIONS
The Branding Affiliate agrees to provide Ubrandit with all information required
by the specification application attached hereto as Exhibit "B." Upon completion
of said specification application and the receipt of payment by Ubrandit of any
applicable set up fees, Ubrandit shall enroll the Branding Affiliate into
Ubrandit's branding program pursuant to the terms of this Agreement (the
"Branding Program"). However, Ubrandit, reserves the right to cancel this
Agreement and terminate the Branding Affiliate's enrollment in the Branding
Program with or without cause at any time and for any reason, including, but not
limited to, a determination (in Ubrandit's sole discretion) that the Branding
Affiliate's site is unsuitable for the Branding Program due to its inclusion of
content that is in any way unlawful, harmful, threatening, defamatory, obscene,
harassing, or racially, ethnically, or otherwise objectionable.
2. UBRANDIT.COM EXCLUSIVE SELLER OF BOOKS, MUSIC, VIDEOS AND DVDS
Subject to the terms and conditions set forth below, Ubrandit shall be the
exclusive seller of books, music CDs and tapes, and videos and DVDs on the
Branding Affiliate site. The Branding Affiliate agrees that the Branding
Affiliate will not (directly or indirectly) allow any other person or entity to
sell books, music CDs and tapes, and videos and DVDs on the Branding Affiliate
site or link their site to the Branding Affiliate in connection with the sale of
books, music CDs and tapes, and videos and DVDs. This agreement does not prevent
a Branding Affiliate from selling/fulfilling its own proprietary published
titles on its site.
3. THE BRANDING AFFILIATE BOOK, MUSIC, VIDEO STORE
Ubrandit will make available to the Branding Affiliate certain proprietary
content including graphic and textual links which will allow the Branding
Affiliate to present the interactive Book, Music, Video Store in a window on the
Branding Affiliate site. By accessing the content of said window users of
Branding Affiliate's site will be able to purchase Ubrandit Products. During the
setup process and pursuant to the terms of this Agreement, the Branding
Affiliate will be permitted to make certain customizations to the look of the
window displaying the content of the Book, Music, Video Store to give the look
of transparency and to conform the window to the colors and style of the
Branding Affiliate site. The Branding Affiliate will have the discretion as to
<PAGE>
colors, certain textual references, and the use of logos in the customizing of
the window that presents the Book, Music Video Store on the Branding Affiliate
site and links to the Ubrandit site; however, as described below, the linking to
the Ubrandit site is subject to the terms and conditions hereof, and
Ubrandit.com has the right to monitor the Branding Affiliate site to ensure that
it is in compliance with this Agreement.
4. UBRANDIT'S RESPONSIBILITIES
Ubrandit.com will provide the Branding Affiliate with the linking information
necessary to allow the Branding Affiliate to display the Book, Music, Video
Store on the Branding Affiliate site. As part of the content provided, Ubrandit
will provide certain search engines to assist user in their purchase of Ubrandit
Products. Ubrandit will be solely responsible for processing every order placed
by a customer following a special link from the Branding Affiliate site, for
tracking the volume and amount of sales generated by the Branding Affiliate
site, and for providing information to Branding Affiliates regarding sales
statistics. Ubrandit will be responsible for order entry, payment processing,
shipping, cancellations, returns, and related customer service.
5. OTHER TERMS REGARDING BRANDING AFFILIATES
a. After the Branding Affiliate's enrollment in the Branding Affiliate Program
and the Branding Affiliate's customization of the Book, Music, Video Store, the
Branding Affiliate shall prominently display links, which comply with the terms
and conditions on this Agreement, throughout the Branding Affiliate site as the
Branding Affiliate see fit to the window displaying the Book, Music, Video
Store. b. As a Branding Affiliate, the Branding Affiliate will be entitled to
earn commissions as set forth in paragraphs 6 and 7 below. The Branding
Affiliate will also be entitled to participate in certain additional programs
offered by Ubrandit that are opened to all Branding Affiliates.
c. Ubrandit has the right in its sole discretion to monitor the Branding
Affiliate site at any time and from time to time to determine if the Branding
Affiliate is in compliance with the terms of this Agreement.
6. EARNING COMMISSIONS
Only Ubrandit Products that are (i) sold by us, (ii) purchased by users linking
to our site from the Book, Music, Video Store displayed on the Branding
Affiliate site ("Linked Users"), (iii) shipped by us, and (iv) for which
Ubrandit.com have received full payment will qualify for a commission (each, a
"Qualifying Purchase"). Commission rates will be based on the aggregate amount
actually paid to us for Qualifying Purchases of the Ubrandit Products, excluding
amounts collected by us for sales taxes, duties, gift-wrapping, shipping,
handling, and similar charges, amounts due to credit card fraud and bad debt,
and credits for returned goods ("Net Sales"). All available items on our site
will be included in the computation of Net Sales. Commission rates are as
follows: Ubrandit will pay the Branding Affiliate a commission rate of 5% of the
Net Sales amount per item for all applicable books, music CDs and tapes, videos
and DVDs the Branding Affiliate sells through the Book, Music Video Store
displayed on the Branding Affiliate site to Linked Users. The Branding Affiliate
may also either opt to receive a larger commission by increasing the cost of
Ubrandit Products to its customers depending upon its revenue model or opt to
receive 0% commissions and pass an additional 5% discount on to the Branding
Affiliate customers.
7. PAYMENT OF COMMISSIONS
Each calendar quarter (every three months) that the Branding Affiliate
commission earned exceeds $50.00 (less any taxes required to be withheld under
applicable law) Ubrandit will send the Branding Affiliate a check and a
statement of activity to the Branding Affiliate. If the Branding Affiliate
commission earned for any quarter is less than $50.00, the total amount will be
carried until the Branding Affiliate aggregate commission exceeds $50.00 at
which time it will be paid at the end of the quarter in which the aggregate
commission exceeded $50.00. Such commission checks and statements of activity
will be sent approximately thirty (30) days after the end of the respective
calendar quarter.
<PAGE>
8. ACCESS TO REPORTS
Ubrandit will provide Branding Affiliate with access to certain sales statistics
to verify the sales made and commission earned and paid regarding Branding
Affiliate.
9. CUSTOMERS, POLICIES, AND PRICING
Customers who buy Ubrandit Products through the Branding Program will be deemed
to be customers of Ubrandit. Accordingly, all of our rules, policies, and
operating procedures concerning customer orders, customer service, and Ubrandit
Product sales will apply to those customers. Ubrandit may change our policies
and operating procedures from time to time. For example, Ubrandit will determine
the prices to be charged for Ubrandit Products sold under the Branding Program
in accordance with our own pricing policies. Prices and availability of Ubrandit
Products may vary from time to time. Since price changes may affect products
that the Branding Affiliate has noted or highlighted on the Branding Affiliate
site, the Branding Affiliate may not include price information in any
descriptions of Ubrandit Products that the Branding Affiliate may include on the
Branding Affiliate site. Ubrandit.com will use commercially reasonable efforts
to present accurate information, but Ubrandit cannot guarantee any information
about Ubrandit Products displayed in the Book, Music, Video, Store, including
but not limited to, the accuracy of any information regarding availability,
description, or price of any Ubrandit Product.
10. PUBLICITY REGARDING UBRANDIT
The Branding Affiliate shall not create, publish, distribute, or permit any
written material that makes reference to us without first submitting such
material to us and receiving our written consent, which Ubrandit agrees shall
not be unreasonably withheld.
11. LICENSES REGARDING CONTENT, TRADEMARKS, AND OTHER LICENSED MATERIAL
a. UBRANDIT GRANTS THE BRANDING AFFILIATE A NON-EXCLUSIVE, NON-TRANSFERABLE,
REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH LINKS SOLELY IN ACCORDANCE WITH
THE TERMS OF THIS AGREEMENT AND (ii) TO DISPLAY THE CONTENT, TRADEMARKS AND
LOGOS AND SIMILAR IDENTIFYING MATERIAL CONTAINED IN THE BOOK, MUSIC, VIDEO STORE
(COLLECTIVELY, THE "LICENSED MATERIALS") FOR THE SOLE PURPOSE OF ENABLING AND
FACILITATING LINKING FROM THE BRANDING AFFILIATE SITE TO OUR SITE SO THAT THE
BRANDING AFFILIATE USERS CAN PURCHASE UBRANDIT PRODUCTS. SAID LICENSE OF THE
LICENSED MATERIAL IS GRANTED SOLELY IN CONNECTION WITH SUCH LINKS. THE BRANDING
AFFILIATE MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY
OTHER THAN CUSTOMIZATION AUTHORIZED PURSUANT TO THIS AGREEMENT OF THE LINKED
WINDOW ON THE BRANDING AFFILIATE SITE CONTAINING THE BOOK, MUSIC, VIDEO STORE.
ALL CUSTOMIZATION OF THE DISPLAY OF THE BOOK, MUSIC, VIDEO, STORE ON THE
BRANDING AFFILIATE SITE MUST BE ACCOMPLISHED THROUGH THE USE OF CUSTOMIZATION
PROGRAMS APPEARING AT THE WWW.UBRANDIT.COM SITE FOR THE CUSTOMIZATION OF COLOR,
GRAPHICS, AND TEXT AND FOR THE INCLUSION OF LOGOS. THE BRANDING AFFILIATE ARE
ONLY ENTITLED TO USE THE LICENSED MATERIALS TO THE EXTENT THAT THE BRANDING
AFFILIATE IS A MEMBER IN GOOD STANDING OF THE BRANDING PROGRAM.
b. The Branding Affiliate shall not make any specific use of any Licensed
Materials for purposes other than selling Ubrandit Products on the Branding
Affiliate site, without first submitting a sample of such to Ubrandit and
obtaining the prior written consent of Ubrandit, which consent shall not be
unreasonably withheld. The Branding Affiliate agrees not to use the Licensed
Materials in any manner that is disparaging or that otherwise portrays Ubrandit
in a negative light. Ubrandit reserves all of its rights in the Licensed
Materials and its other proprietary rights. Ubrandit may revoke Branding
Affiliate's license at any time, by giving the Branding Affiliate written
notice.
c. The Branding Affiliate grants to us a non-exclusive license to utilize the
Branding Affiliate names, titles, and logos, to advertise, market, promote, and
publicize in any manner our rights hereunder; provided, however, that
Ubrandit.com shall not be required to so advertise, market, promote, or
publicize. This license shall terminate upon the effective date of the
expiration or termination of this Agreement.
<PAGE>
12. BRANDING AFFILIATE SITE OBLIGATIONS
a. The Branding Affiliate will be solely responsible for the development,
operation, and maintenance of the Branding Affiliate site and for all materials
that appear on the Branding Affiliate site. Such responsibilities include, but
are not limited to, the technical operation of the Branding Affiliate site and
all related equipment, links on the Branding Affiliate site to the linked Book,
Music, Video, Store window appearing on the Branding Affiliate site; the
accuracy and propriety of materials posted on the Branding Affiliate site
(including, but not limited to, all Ubrandit Product-related materials);
ensuring that materials posted on the Branding Affiliate site do not violate or
infringe upon the rights of any third party and are not libelous or otherwise
illegal.
b. Ubrandit disclaims all liability for all such matters. Further, the Branding
Affiliate will indemnify and hold us harmless from all claims, damages, and
expenses (including, without limitation, attorneys' fees) relating to the
development, operation, maintenance, and contents of the Branding Affiliate
site.
13. TERM OF THE AGREEMENT
The parties agree that the term of this Agreement shall commence upon the date
of execution of this Agreement set forth above and shall continue for a term of
two (2) years. This Agreement shall automatically be renewed for additional
periods of one (1) each, without additional consideration, unless terminated by
either party through written Notice of Intention to Terminate, delivered not
less than ninety (90) days prior to the end of the current . The Branding
Affiliate is only eligible to earn commission on sales occurring during the
term, and commissions earned through the date of termination will remain payable
only if the related Ubrandit Product orders are not cancelled or returned.
Ubrandit may withhold the Branding Affiliate's final payment for a reasonable
time to ensure that the correct amount is paid.
14. MODIFICATIONS OF THE AGREEMENT
The parties may modify this agreement at any time, however, any modification
must be in writing and be signed by both parties.
15. RELATIONSHIP OF PARTIES
Branding Affiliate relationship with Ubrandit is one of independent contractors,
and nothing in this Agreement will create any partnership, joint venture,
agency, franchise, sales representative, or employment relationship with
Ubrandit.com or the parties herein. The Branding Affiliate will have no
authority to make or accept any offers or representations on Ubrandit's behalf.
The Branding Affiliate will not make any statement, whether on the Branding
Affiliate site or otherwise, that reasonably would contradict anything in this
paragraph.
16. DISCLAIMERS
Ubrandit makes no express or implied warranties or representations with respect
to the Branding Program or any Ubrandit Products sold through the Branding
Program (including, without limitation, warranties of fitness, merchantability,
non-infringement, or any implied warranties arising out of course of
performance, dealing, or trade usage). In addition, Ubrandit make no
representation that the operation of its site will be uninterrupted or error
free, and Ubrandit will not be liable for the consequences of any interruptions
or errors.
17. BRANDING AFFILIATE REPRESENTATIONS AND WARRANTIES
The Branding Affiliate hereby represents and warrants to as follows:
a. This Agreement has been duly and validly executed and delivered by the
Branding Affiliate and constitutes the Branding Affiliate legal, valid, and
binding obligation, enforceable against the Branding Affiliate in accordance
with its terms.
b. The execution, delivery, and performance by the Branding Affiliate of this
Agreement and the consummation by the Branding Affiliate of the transactions
contemplated hereby will not, with or without the giving of notice, the lapse of
time, or both, conflict with or violate (i) any provision of law, rule, or
regulation to which the Branding Affiliate is subject, (ii) any order, judgment,
or decree applicable to the Branding Affiliate or binding upon the Branding
Affiliate assets or properties, (iii) any provision of the Branding Affiliate
by-laws or certificate of incorporation, or (iv) any agreement or other
instrument applicable to the Branding Affiliate or binding upon the Branding
Affiliate assets or properties.
<PAGE>
c. The Branding Affiliate is the sole and exclusive owner of any trademarks,
trade name service marks, logos or copyrighted material which the Branding
Affiliate will use in the Branding Affiliate customization of the Book, Music,
Video Store window appearing on the Branding Affiliate site and the Branding
Affiliate has the right and power to grant to Ubrandit the license to use the
Branding Affiliate trademarks in the manner contemplated herein, and such grant
does not and will not (i) breach, conflict with, or constitute a default under
any agreement or other instrument applicable to the Branding Affiliate or
binding upon the Branding Affiliate assets or properties, or (ii) infringe upon
any trademark, trade name, service mark, copyright, or other proprietary right
of any other person or entity.
d. No consent, approval, or authorization of, or exemption by, or filing with,
any governmental authority or any third party is required to be obtained or made
by the Branding Affiliate in connection with the execution, delivery, and
performance of this Agreement or the taking by the Branding Affiliate of any
other action contemplated hereby.
e. There is no pending or, to the best of the Branding Affiliate knowledge,
threatened claim, action, or proceeding against the Branding Affiliate, or any
affiliate of the Branding Affiliates, with respect to the execution, delivery,
or consummation of this Agreement, or with respect to the Branding Affiliate
trademarks, trade names, or service marks and, to the best of the Branding
Affiliate knowledge, there is no basis for any such claim, action, or
proceeding.
18. CONFIDENTIALITY
Except as otherwise provided in this Agreement or with Ubrandit's consent the
Branding Affiliate hereto agree that all information including, without
limitation, the terms of this Agreement, business and financial information,
customer and vendor lists, and pricing and sales information, concerning
Ubrandit or the Branding Affiliate, respectively, or any Branding Affiliates
provided by or on behalf of any of them shall remain strictly confidential and
secret and shall not be utilized, directly or indirectly, by the Branding
Affiliate for the Branding Affiliate's own business purposes other than
contemplated by this agreement or for any other purpose except and solely to the
extent that any such information is generally known or available to the public
through a source or sources other than such party hereto or its affiliates.
Notwithstanding the foregoing, the Branding Affiliate is hereby authorized to
deliver a copy of any such information (a) to any person pursuant to a subpoena
issued by any court or administrative agency, (b) to its accountants, attorneys,
or other agents on a confidential basis, and (c) otherwise as required by
applicable law, rule, regulation, or legal process including, without
limitation, the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, and the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
19. LIMITATION OF LIABILITY
UBRANDIT 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 AFFILIATE NETWORK, EVEN IF UBRANDIT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS
AGREEMENT AND THE BRANDING AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL
COMMISSIONS PAID OR PAYABLE TO THE BRANDING AFFILIATE UNDER THIS AGREEMENT AND
REFUNDABLE SETUP FEES TO WHICH THE BRANDING AFFILIATE ARE ENTITLED, IF ANY.
20. INDEMNIFICATION
The Branding Affiliate hereby agrees to indemnify and hold harmless Ubrandit and
its subsidiaries and affiliates, and their directors, officers, employees,
agents, shareholders, affiliates, members, and other owners, against any and all
claims, actions, demands, liabilities, losses, damages, judgments, settlements,
costs, and expenses (including reasonable attorneys' fees) (any or all of the
foregoing hereinafter referred to as "Losses") insofar as such Losses (or
actions in respect thereof) arise out of or are based on (i) any claim that
Ubrandit's use of any trademarks provided by the Branding Affiliate infringes on
any trademark, trade name, service mark, copyright, license, intellectual
property, or other proprietary right of any third party, (ii) any
misrepresentation of a representation or warranty made by the Branding Affiliate
herein or any breach of a covenant and agreement made by the Branding Affiliate
herein, or (iii) any claim related to the Branding Affiliate site, including,
without limitation, content therein not attributable to Ubrandit.
<PAGE>
21. INDEPENDENT INVESTIGATION
THE BRANDING AFFILIATE ACKNOWLEDGE THAT THE BRANDING AFFILIATE HAS READ THIS
AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. THE BRANDING AFFILIATE
UNDERSTANDS THAT UBRANDIT MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT
CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS
AGREEMENT OR OPERATE UBRANDIT SITES THAT ARE SIMILAR TO OR COMPETE WITH BRANDING
AFFILIATE'S SITE. THE BRANDING AFFILIATE HAS INDEPENDENTLY EVALUATED THE
DESIRABILITY OF PARTICIPATING IN THE BRANDING PROGRAM AND IS NOT RELYING ON ANY
REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS
AGREEMENT.
22. GOVERNING LAW
This 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 California, and the Branding Affiliate irrevocably consents to the
jurisdiction of such courts. The Branding Affiliate may not assign this
Agreement, by operation of law or otherwise, without our prior written consent.
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 assigns. Failure to enforce the Branding Affiliate strict
performance of any provision of this Agreement will not constitute a waiver of
our right to subsequently enforce such a provision or any other provision of
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first above written.
UBRANDIT.COM
By: /S/ JEFF PHILLIPS
------------------------
Name: JEFF PHILLIPS
------------------------
Title: PRESIDENT
------------------------
___________________________
By: /S/ SHELDON GALLOWAY
------------------------
Name: SHELDON GALLOWAY
------------------------
Title: PRESIDENT
------------------------
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