Affiliate Agreement - PrestoPhoto

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See the program overview for higher level details.

This Affiliate Agreement ("Agreement") is made between PrestoPhoto, Inc. ("Company") and you ("Affiliate"). An "Affiliate Program" ("Program") is where a person, entity, affiliate or its agent uses promotional methods to drive traffic to Company's web site to earn financial compensation ("Commissions") for "Qualifying Sales" (as defined by the Company) referred by such "Affiliate" via an action made by a "Visitor" (any person or entity that is not the "Affiliate" or the Affiliate's agent) through an Internet connection ("Link") to www.company.com via an authorized promotional method used by "Affiliate". Company compensates the "Affiliate", in accordance with this Agreement and the Program Payout specifications.

Terms and conditions

In consideration of the promises set forth below, we agree as follows:

Affiliate's Responsibilities.
1. Affiliate will link its site to areas within Company's site using URLs with an embedded URL Affiliate Code (the "Required URLs"). Affiliate may post as many links to the Required URLs and the rest of Company's site as it likes on Affiliate's site. The position, prominence and nature of links on the Affiliate's site will be in the discretion of Affiliate. You may not place Required URLs where advertising is forbidden, such as in newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chatrooms, or guestbooks.
2. Affiliate agrees not to make any representations, warranties or other statements concerning Company, Company's site, any of Company's products or services, or Company's site policies, except as expressly authorized by Company. Affiliate agrees to represent Company's services in a manner consistent with all Company.com site messaging. Affiliate agrees not to make any press releases or promotional activity with respect to this Agreement or its participation in the Program without Company's prior written consent, which may be given or withheld in Company's sole discretion. Affiliate agrees to use ethical and legal business practices. Any conduct suspected as fraudulent, abusive or otherwise illegal activity by Affiliate as determined by Company is grounds for immediate termination of this Agreement and deactivation of Your Account. In such an event, any earned Commissions will not be payed. Affiliate shall not cause any Qualifying Sales to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. Multiple Leads from the same individual, entity or IP address may be considered a non-bona fide "Qualifying Sale". Affiliate shall not earn Commissions for non-bona fide Qualifying Sales. Affiliate represents that it will not directly or indirectly offer any person or entity any financial incentive (including, without limitation, payment of money) for using "Required Urls" on its site to access Company's site or read, intercept, record, redirect, interpret, or fill in the contents of Company's electronic registration form submitted to Company by any person or entity.
3. Affiliate is responsible for notifying Company of any malfunctioning of the Required URLs or other problems with Affiliate's participation in the Engagement. Company will respond promptly to all concerns upon notification by Affiliate.
Commissions.
1. For all Qualifying Sales made by each Visitor within sixty (60) days of clicking on Required URL, Company shall pay Affiliate five dollars ($5.00) for the Initial Purchase (defined below) and a 5% share of product revenue generated by additional Qualifying Sales within the same sixty (60) day timeframe. Product revenue means the amounts actually received by Company for print products delivered less shipping and handling costs, amounts collected for sales taxes, gift certificates, charge-backs, coupons and other discounts, rebates or credits.
2. For purposes of this Agreement, "Initial Purchase" means an end user who (a) Registers as a member on www.company.com through a Qualifying Link (defined below) (b) is not then and has not been a registered member of Company (c) has entered new and unique information in each of the first name, last name, and email address fields on Company's registration form (d) accepts the Company site terms and conditions and (e) places an order for a product of their own making within 60 days of registering at Company. If a print product order is placed through a different Qualifying Link than the registration Qualifying Link then the Affiliate hosting the print product order Qualifying Link is paid.
3. A "Qualifying Link" is a link from Affiliate's site to www.company.com using one of the Required URLs.
4. For all Purchases made 60 days prior, Commisions will be paid to Affiliate within forty five (45) days after the end of each calendar month during the term of this Agreement. If the Commission payable to Affiliate for any calendar month is less than twenty-five dollars ($25), Company may hold payment until the total amount due and accruing over subsequent calendar months is at least twenty-five dollars ($25) or (if earlier) until this Agreement or the Engagement is terminated.
5. Company shall have the sole right and responsibility for processing all registrations of end users. Affiliate acknowledges that all agreements relating to the registration of end users shall be between Company and the end user and that Company has the right to reject any registrations that do not comply with any requirements it may establish.
6. All determinations of Qualifying Links and Initial Purchases and whether a Commission is payable will be made by Company in good faith and will, absent manifest error, be final and binding on both Company and Affiliate.
7. Company may apply a debit to Affiliate Account in an amount equal to a Commission previously credited to Your Account in circumstances of : (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Qualifying Sales; (iv) non-receipt of payment from, or refund of payment to, the Visitor by the Company; or (v) Affiliate fails to comply with Company's Program terms or other agreement with Company ("Charge-back"). Charge-backs may be applied to Your Account at any time, including previous payment cycles.
Proprietary Rights.
1. Each party owns and shall retain all right, title and interest in its names, logos, images, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, images, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future. Each party may not modify the other party's logos or images or other materials in any way without the other party's prior written consent. Affiliate acknowledges that Company's logos and the goodwill associated therewith are valuable properties belonging to Company and that all rights thereto are and shall remain the sole and exclusive property of Company. Affiliate agrees to use Company's logos in a manner which will protect Company's rights and goodwill therein. Affiliate agrees that it will do nothing inconsistent with Company's ownership rights and that all uses of the same shall inure to the sole benefit of and be on behalf of Company.
2. Company grants Affiliate a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, images, trademarks, service marks, trade dress and proprietary technology which Company provides to Affiliate hereunder or during the registration process on Affiliate's site solely for the purpose of creating and maintaining links from Affiliate's site to Company's site during the term of this Agreement. Except as expressly set forth in this Agreement or permitted by applicable law, Affiliate may not copy, distribute, modify, reverse engineer, or create derivative works from the same without permission of Company. Affiliate 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.
3. Affiliate grants Company a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Affiliate solely on Company's partner page, for co-branding purposes or as a return link from Company's site to Affiliate's site. Company will remove such graphic or banner ad upon Affiliate's request.
Termination.
1. This Agreement shall commence upon Your indication that Affiliate have accepted this Agreement by providing the required information and ‘clicking through' the acceptance button on the Company.com site and shall continue until terminated in accordance with the terms of this Agreement. This Agreement may be terminated by either party upon 15 days notice. This Agreement may be terminated immediately upon notice for Your breach of this Agreement. Your Account may be deactivated during investigation of breach of this Agreement. If this Agreement is terminated based upon Your breach, Affiliate shall not be eligible to enter into a new "Agreement", and any attempt to do so shall be null and void.
2. Upon termination of this Agreement for any reason, Affiliate will immediately cease use of, and remove from its site, all links to Company's site, and all Company trademarks, names, logos, images, service marks, trade address and copyrights, and all other materials provided by or on behalf of Company to Affiliate pursuant hereto or in connection with the Program.
Representations, Warranties, Disclaimers and Limitation of Liability.
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, anti-discrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms or other similar harmful or deleterious programming routines.
2. Each party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or Company liable for any of the consequences of such interruptions. Company may modify the Network Service, or discontinue providing the Network Service, or any portion thereof, at any time.
3. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party's behalf. If Affiliate is an individual, you are at least 18 years of age on the data of the execution of this agreement.
4. Affiliate represent and warrant that: (i) Affiliate have all appropriate authority to operate, and to any and all content on, Your Web site(s); (ii) Affiliate has all appropriate authority in any promotional method Affiliate may choose to use; (iii) Your Web site(s) and Your promotional methods do not and will not infringe a Company's proprietary rights; and (iv) Affiliate shall remain solely responsible for any and all Web sites owned and/or operated by Affiliate and all of Your promotional methods. Company may or may not review all of your content content and promotional methods.
5. Affiliate is responsible for compliance with the requirements of all relevant legislation (including subordinate legislation and the rules of statutorily recognized regulatory authorities) in force or applicable in the United States or in any other applicable territory, and warrant that no promotion method used by Affiliate or the content of Your Web site(s) will render Company liable to any proceedings whatsoever.
6. In no event shall Company be liable to Affiliate for any indirect, special, exemplary, consequential or incidental damages arising out of or in connection with this Agreement or the Program, even if informed of the possibility of such damages. Company's aggregate liability arising with respect to this Agreement and the Program will not exceed the total commission fees paid or payable to Affiliate under this Agreement.
7. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT COMPANY'S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (E) AGAINST INTERFERENCE WITH ENJOYMENT OF THE AFFILIATE'S INFORMATION OR WEB SITE. ALL 'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED TO AFFILIATE IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. COMPANY IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF COMPANY, AND/OR THE CONTENT OF AN COMPANY'S WEB SITE OR THAT COMPANY MAKES AVAILABLE THROUGH THE NETWORK SERVICE. IN ADDITION, COMPANY MAKES NO REPRESENTATION THAT THE OPERATION OF ITS WEBSITE WILL BE WITHOUT INTERRUPTION OR ERROR, AND COMPANY WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY SUCH INTERRUPTIONS OR ERRORS.
General.
1. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon either party. Each party shall bear its own costs and expenses in performing this Agreement.
2. This Agreement has been made in and shall be interpreted, construed and enforced in all respects in accordance with the laws of the state of North Carolina headquarters without reference to conflict of law principles. Any action to enforce this Agreement shall be brought in the federal or state courts located in North Carolina. Affiliate shall send any official correspondence via registered mail to Company's headquarters to the attention of Company's legal department.
3. This Agreement constitutes the entire agreement, and supersedes any and all prior or contemporaneous agreements of the parties, with respect to the subject matter hereof. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click through" acknowledgement of assent.
4. Neither party shall assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement without the other party's consent to any person or entity which acquires or succeeds to all or substantially all of such party's business assets. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns.
5. In the event that any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the extent permissible and the remainder of this Agreement will remain in full force and effect.