Affiliation Program Agreement
- Rules of the Affiliation Program
- Affiliation Conditions
- Obligations and Restrictions
- Term and Termination
- Disclaimer of Warranties
- Limitation of Liability
- Age and Responsibility
This agreement (the “Agreement”) is made by and between you (“You” including “Your”), and PhotoXpress LLC (“PhotoXpress”).
In consideration of the mutual covenants contained in this Agreement, the parties agree as follows:
1 - Definitions
The Affiliation Program enables any member of PhotoXpress whose profile has been confirmed to be rewarded for the purchases of his or her Affiliates.
An “Affiliate” is anyone who is referred to PhotoXpress, meaning someone who opens an account on PhotoXpress after the recommendation of a member (a “Referring Member”). Someone is referred to PhotoXpress by a member if they create an account after clicking on the Affiliation Link.
"Affiliate Tools" means PhotoXpress’s logos, trade names, trademarks and similar identifying material.
An “Affiliation Link” is an Internet hyperlink or web link pointing to the PhotoXpress website with a member's reference ID. The reference ID is a unique code assigned to every member of PhotoXpress.
2 - Rules of the Affiliation Program
The affiliate relation between the member and their Affiliate takes effect when the new account is created. The Affiliate relationship lasts for a period of one (1) year from the time such new account is created. During this time the Referring Member will be rewarded by commission on the first purchase only by each of its Affiliates of either a “Premium” or “Lite” subscription, as further set forth below.
Referring Members may receive commissions in respect of an unlimited number of Affiliates in their account. If the Affiliate first subscribes to the PhotoXpress “Lite” Subscription Program, the Referring Member will earn a commission of $3 for this affiliation. If the Affiliate subscribes to the PhotoXpress “Premium” Subscription Program, the Referring Member will earn a commission of $7 for this affiliation. For the avoidance of doubt, the Referring Member will only receive the commission once, in respect of each given Affiliate, and will not receive commission on any additional purchases made by an Affiliate following such Affiliate’s first purchase of a subscription. Furthermore, if the first purchase occurs following the passage of the one (1) year Affiliation relationship period, then no commissions will be payable in respect of such Affiliate.
3 - Affiliation Conditions
The Affiliate must:
- not be already affiliated to another member;
- have signed up after the Referring Member’s sign-up date;
- reach the Site by clicking on an Affiliation Link; and
- must have cookies enabled on their browser when clicking on an Affiliation Link to the Site, when reaching the Site, and when completing the membership application, so that we can track it
A Referring Member can have an unlimited number of Affiliates, but shall not be affiliated to himself/herself. PhotoXpress shall not be a party to any agreement you have with other parties, and you are not authorized to make any commitment on behalf of PhotoXpress. You shall not reward or pay directly or indirectly in any way other parties to influence them to become your Affiliates or to otherwise increase your affiliation rewards.
4 - Payment
Affiliation commissions are calculated only from valid transactions 30 days after the original sale. You may receive payment only when your unpaid commissions reach a minimum total $50.
5 - Obligations and Restrictions
Your use of the Affiliate Tools shall be made in accordance with all applicable laws and regulations. You must use the Affiliation Program in a manner that demonstrates common sense and respect for the rights of PhotoXpress and third parties. In particular, the Referring Member commits to respect the conditions listed in this Section 5. In case of a violation of these conditions, you will be removed from the Affiliation Program, this Agreement will be terminated and you will forfeit all of your Affiliation Program commissions.
a - Anti-Spamming Policy
PhotoXpress prohibits you from engaging in any form of unsolicited commercial emailing (commonly referred to as "spamming") or the sending of e-mails that are misleading, spoofed, contain misleading subject lines, contain inaccurate or misleading sender or recipient data, or violate applicable State or Federal statutes. For the purposes of PhotoXpress's definition, spamming also includes similar, abusive behavior in a third party "chat room" or website or the sending of unsolicited or misleading Instant Messages, Chatroom, Newsgroup, ICQ or IRC messages. Such behavior could include automatically sending scripted text (and/or website URLs) disguised as "chat" or conversation into any third party chat room. PhotoXpress in its own discretion and not as its exclusive remedy, reserves the right to suspend, report, or terminate the Referring Member, or otherwise take remedial action if it is determined that the Referring Member was spamming or in violation of this provision or applicable law. REFERRING MEMBERS VIOLATING THIS PROVISION WILL FORFEIT ANY AFFILIATE PROGRAM REWARDS.
You further agree to fully and immediately respond to any and all requests or queries we make of you regarding your compliance with this provision, and to report to us any allegations of spamming or other violations of this provision made against you or others in connection with PhotoXpress.
b – Protecting PhotoXpress’s Image
We grant you a non-exclusive, non-transferable, revocable license to use solely to promote our services and membership. You are only entitled to use the Affiliate Tools to the extent you are a Referring Member in good standing. You shall not use any Affiliate Tools other than to advertise membership in PhotoXpress. You agree not to use the Affiliate Tools in any manner that is disparaging or that otherwise portrays PhotoXpress in a negative or misleading light. We reserve all of our rights in the Affiliate Tools, and all other intellectual property rights thereto. We may revoke the rights granted to you pursuant to this section at any time. The rights granted to you pursuant to this section shall terminate upon the effective date of the expiration or termination of this Agreement and by that time you shall cease and desist all use of the Affiliate Tools.
You and PhotoXpress are independent contractors and nothing in this Agreement will create any partnership, joint venture or agency relationship. You will have no authority to make or accept any offers, warranties, or representations on our behalf. You will not make any statement, whether on your Site or otherwise, that would cause confusion as to our relationship with you.
Without limiting the generality of the terms and conditions contained herein, you shall not use the term "PhotoXpress" (or any variations or misspellings thereof) as a keyword to trigger the display of advertisements on the internet or otherwise.
c- Accepted Use
When using the Affiliation Program and the Affiliate Tools, you shall not infringe on or otherwise harm the rights of others (including, without limitation, intellectual property rights). You shall not provide, promote, distribute, place or otherwise publish as a Referring Member any content, or web site that includes content, that is libelous, defamatory, obscene, pornographic, abusive, offensive, fraudulent, misleading or illegal. As PhotoXpress may not review all information provided by you, you shall remain solely responsible for the content you publish on the Internet or by any other means. Affiliate Tools may not be placed in newsgroups, unsolicited e-mail, Instant Messaging networks, banner networks, counters, chatrooms or guestbooks.
6 - Term and Termination
This Agreement is effective so long as you participate in the Affiliation Program or until the Affiliation Program is discontinued by PhotoXpress, whichever first occurs. The Affiliation Program or any aspect of it can be discontinued at any time in PhotoXpress's sole discretion upon notice posted on the Site. Upon posting of such notice, the Affiliation Program and this Agreement shall be thereby terminated as it relates to you. In addition, PhotoXpress may terminate this Agreement without cause at any time immediately upon written notice to you.
7 - Disclaimer of Warranties
PHOTOXPRESS DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
8 - Limitation of Liability
YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE BADGES AND THE LINKS. IN NO EVENT SHALL PHOTOXPRESS OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, LICENSORS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT OR THE REFERRAL PROGRAM, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE BADGES OR THE LINKS, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF PHOTOXPRESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
IN ANY EVENT, PHOTOXPRESS’S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE BADGES, LINKS OR BUSINESS CARDS IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO TEN ($10.00) U.S. DOLLARS.
9 - Indemnity
You agree to indemnify, defend and hold PhotoXpress and its affiliates, and their respective directors, officers, employees, shareholders, partners and agents (collectively, the "PhotoXpress Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including lawyers' fees) incurred by any PhotoXpress Party in connection with any breach by you of this Agreement. PhotoXpress reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with PhotoXpress's defense of such claim.
10 - Age and Responsibility
You represent and warrant that you are of sufficient legal age to use the Site and to create binding legal obligations for any liability you may incur as a result of the use of the Site and your participation in the Affiliation Program.
11 - General
This Agreement shall be governed by the laws of the State of New York without regard to its conflict of law provisions. You and PhotoXpress agree to submit to the personal and exclusive jurisdiction of the courts located within the county of New York, New York.
The failure of PhotoXpress to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement shall remain in full force and effect.
The section headings in this Agreement are for convenience only and have no legal or contractual effect.
Notwithstanding any provision hereof, for all purposes of this Agreement, you and PhotoXpress shall be and act independently and not as partner, joint venturer, agent, employee or employer of the other. You shall not have any authority to assume or create any obligation for or on behalf of PhotoXpress, express or implied, and you shall not attempt to bind PhotoXpress to any contract.
PhotoXpress shall have the right, in its sole discretion, to assign any or all of its rights or obligations hereunder. You shall have no right to assign any of your rights or obligation hereunder.