WHAT’S HERE? The AllPosters.com Affiliates Program Operation Agreement
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Exhibit 10.17 |
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WHAT’S HERE? The
▇▇▇▇▇▇▇▇▇▇.▇▇▇ Affiliates Program Operation Agreement |
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This
Agreement contains the complete terms and conditions that apply to an
individual’s or entity’s participation in the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Affiliates
Program (the “Program”). |
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1. |
Enrollment In The Program |
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To begin the enrollment
process, you will submit a complete Program application via our Website. We
will evaluate your application in good faith and will notify you of your
acceptance or rejection. We may reject your application if we determine (at
our sole discretion) that your Website is unsuitable for the Program.
Unsuitable sites include those that: |
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If we reject your
application, you are welcome to reapply to the Program at any time. You
should also note that if we accept your application and your Website is
thereafter determined (at our sole discretion) to be unsuitable for the Program,
we may terminate this Agreement. |
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2. |
Links On Your Website |
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Once you have been notified that your Website has been accepted into the Program, you may provide on your Website one or more of the following types of links to our Website: |
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Promote violence
Promote
discrimination based on race, sex, religion, nationality, disability,
Promote illegal
activities
Include
“allposters” or variations or misspellings thereof in their domain names
Otherwise
violate intellectual property rights
Product Links 
Category Links
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We will provide you with
guidelines and graphical artwork to use in linking to our home page. To
permit accurate tracking, reporting, and commission fee accrual, we will
provide you with special “tagged” link formats to be used in all links
between your Website and our Website. You must ensure that each of the links
between your Website and our Website properly utilizes such special link
formats. Links to our Website placed on your Website pursuant to this
Agreement and which properly utilize such special link formats are referred
to as “Special Links.” You will only earn commission fees with respect to
activity on our Website occurring directly through Special Links: we will not
be liable to you with respect to any failure by you to use Special Links,
including to the extent that such failure may result in any reduction of
amounts which would otherwise be paid to you pursuant to this Agreement. You
will, however, earn commission fees with respect to all product purchases on
our Website once from that “tagged” link. |
Search Box Link 
General Link To
▇▇▇▇▇▇▇▇▇▇.▇▇▇ Home Page
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keywords, search terms or other identifiers that include the
word “allposters” or variations thereof (for example “allposter”, “all posters”,
“▇▇▇▇▇▇▇▇▇▇.▇▇▇”, etc.) for use in any search engine, portal, sponsored
advertising service or other search or referral service. If we determine, in
our sole discretion, that you have engaged in any of the foregoing
activities, we may (without limiting any other rights or remedies available
to us) withhold any referral fees otherwise payable to you under this
Agreement and/or terminate this Agreement.
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3. |
Order Processing
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We will process product
orders placed by customers who follow special links from your Website to our
Website. We reserve the right to reject orders that do not comply with any
requirements that we periodically may establish. We will be responsible for
all aspects of order processing and fulfillment. Among other things, we will
prepare order forms; process payments, cancellations, and returns; and handle
customer service. We will track sales made to customers who purchase products
using special links from your Website to our Website and will make available
to you reports summarizing this sales activity. The form, content, and
frequency of the reports may vary from time to time at our discretion. |
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4. |
Commission Fees |
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We will pay you (in
accordance with Sections 5 and 6 below) commission fees on certain Product
sales to third parties. For a Product sale to be eligible to earn a
commission fee, the customer must follow a Special Link from your Website to
our Website, select and purchase the Product using our automated ordering
system, accept delivery of the Product at the shipping destination, and remit
full payment to us. |
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5. |
Commission Fee Schedule |
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You will earn commission fees based on qualifying revenues according to commission fee schedules to be established by us. “Qualifying revenues” are revenues derived by us from our sales of qualifying products |
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including posters, prints,
photos, photo books, lobby cards, mounting and framing. “Qualifying revenues”
do not include shipping & handling, gift-wrapping, taxes, and service
charges. |
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Total Sales/Month |
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Commission Percentage |
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Less than $500 |
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25% |
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$500 to $2000 |
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26% |
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$2000 to $5000 |
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27% |
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$5000 to $10,000 |
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28% |
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$10,000 to $20,000 |
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29% |
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$20,000 and up |
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30% |
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Each time you refer a visitor to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and they complete a purchase, you earn commission on that sale. If the visitor does not purchase immediately, but comes back within 10 days and purchases, we still credit you with the sale. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ will also
pay you commission on sales made by all Websites you recruit to the ▇▇▇▇▇▇▇▇▇▇.▇▇▇
Affiliates Program. To qualify, the Websites you recruit must reference your
Account Number or Website ID when they fill out our Affiliates Program
application. This reference can be made manually whereby the applicant enters
your Account Number or Website ID into the field marked “Referrer Account
Number or Website ID” on the Affiliates Application or automatically using
our recruitment banners that contain special links. |
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1. $2.00 when they
establish a valid link to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
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Affiliates may not sign-up Websites owned by them or beneficially owned by them. Affiliates that sign-up for the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Affiliates Program must have a valid URL that they are responsible for. Affiliates may not directly or indirectly offer any person or entity any consideration or incentive to sign up |
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Websites to the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Affiliates Program. If we determine, at our sole discretion, that you are abusing the system in the manner stated above, we may (without limiting any other rights or remedies available to us) withdraw your participation and withhold any commission fees payable to you for Websites you recruit. |
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6. |
Commission Fee Payment |
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We will pay you commission
fees on a monthly basis. 30 days following the end of each calendar month, we
will send you a check for the commission fees earned on your sales of
Qualifying Products that were sold during that month, less any taxes that we
are required by law to withhold. However, if the commission fees payable to
you for any month are less than $20.00, we will hold those commission fees
until the total amount due is at least $20.00 or (if earlier) until this
Agreement is terminated. If a Product that generated a commission fee is
returned by the customer, we will deduct the corresponding commission fee
from your next monthly payment. If there is no subsequent payment, we will
send you a ▇▇▇▇ for the commission fee. |
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7. |
Policies And Pricing |
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Customers who buy products
through this Program will be deemed to be customers of ▇▇▇▇▇▇▇▇▇▇.▇▇▇.
Accordingly, all of ▇▇▇▇▇▇▇▇▇▇.▇▇▇’s rules, policies, and operating
procedures concerning customer orders, customer service, and product sales
will apply to those customers. We may change our policies and operating
procedures at any time. For example, we will determine the prices to be
charged for products sold under this Program in accordance with our own
pricing policies. Product prices and availability may vary from time to time.
Because price changes may affect products that you already have listed on
your Website, you may not include price information in your product
descriptions. We will use commercially reasonable efforts to present accurate
information, but we cannot guarantee the availability or price of any
particular product. |
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Identifying Yourself As An Affiliate We will make available to you a small graphic image that identifies your Website as a Program participant. You must display this logo or the phrase “In affiliation with ▇▇▇▇▇▇▇▇▇▇.▇▇▇” somewhere on your Website. We may |
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modify the text or graphic
image of this notice from time to time. In addition, we encourage (but do not
require) you to include a Special Link on your Website to the ▇▇▇▇▇▇▇▇▇▇.▇▇▇
home page at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ . |
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9. |
Limited License |
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We grant you a
nonexclusive, revocable right to use the graphic image and text described in
Section 8 and such other images for which we grant express permission, solely
for the purpose of identifying your Website as a Program participant and to
assist in generating product sales. You may not modify the graphic image or
text, or any other of our images, in any way. We reserve all of our rights in
the graphic image and text, any other images, our trade names and trademarks,
and all other intellectual property rights. You agree to follow our Trademark
Guidelines, as those guidelines may change from time to time. We may
revoke your license at any time by giving you written notice. |
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Responsibility For Your Website |
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You will be solely responsible for the development, operation, and maintenance of your Website and for all materials that appear on your Website. For example, you |
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will be solely responsible for:
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11. |
Resale And Special Incentive Restrictions |
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You may not purchase products during sessions initiated through the links on your Website for resale or commercial use of any kind. This includes orders for customers or on behalf of customers. Such purchases may result (in our sole discretion) in the withholding of commission fees or the termination of this Agreement. Products that are eligible to earn commission fees under the rules set forth above are referred to as “Qualifying Products.”
In addition, you may not: (a) directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money (including any rebate), or granting of any discount or other benefit) for using Special Links on your Website to access our Website (e.g., by implementing any “rewards” program for persons or entities who use Special Links on your Website to access our Website). If we determine, in our sole discretion, that you have offered any person or entity any such consideration or incentive, we may (without limiting any other rights or remedies available to us) withhold any commission fees otherwise payable to you under this Agreement and/or terminate this Agreement. |
The technical
operation of your Website and all related equipment
Creating and
posting Product descriptions on your Website and linking those descriptions
The accuracy and
appropriateness of materials posted on your Website (including, among
Ensuring that
materials posted on your Website do not violate or infringe upon the rights
Ensuring that
materials posted on your Website are not libelous or otherwise illegal
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Term Of The Agreement |
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The term of this Agreement
will begin upon our acceptance of your Program Application and will end when
terminated by either party. Either you or we may terminate this Agreement at
any time, with or without cause, by giving the other party written notice of
termination. Upon the termination of this Agreement for any reason, you will
immediately cease use of, and remove from your Website, all links to our
Website, product images from our database, and all ▇▇▇▇▇▇▇▇▇▇.▇▇▇ trademarks,
trade dress and logos, and all other materials provided by or on behalf of us
to you pursuant hereto or in connection with the Program. You are only
eligible to earn commission fees on our sales of Qualifying Products
occurring during the term, and commission fees earned through the date of
termination will remain payable only if the related orders are not canceled
or returned. We may withhold your final payment for a reasonable time to
ensure that the correct amount is paid. |
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Modification |
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We may modify any of the
terms and conditions contained in this Agreement, at any time and in our sole
discretion, by posting a change notice or a new agreement on our Website.
Modifications may include, for example, changes in the scope of available
commission fees, commission fee schedules, payment procedures, and Program
rules. In the event of substantive changes to the terms of this agreement,
you will be contacted by Email. Substantive changes include changes in the
commission schedule, bonus rates for Websites you recruit, and commission
rates for Websites you recruit. If any modification is unacceptable to you,
your only recourse is to terminate this agreement. Your continued
participation in the program following our posting of a change notice or new
agreement on our Website will constitute binding acceptance of the change. |
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14. |
Relationship Of Parties |
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You and we are independent
contractors, and nothing in this Agreement will create any partnership, joint
venture, agency, franchise, sales representative, or employment relationship
between the parties. You will have no authority to make or accept any offers
or representations on our behalf. You will not make any statement, whether on
your Website or otherwise, that reasonably would |
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contradict anything in this Section.
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15. |
Limitation Of Liability |
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We 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 Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total commission fees paid or payable to you under this Agreement.
You hereby agree to indemnify and hold harmless ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, 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 (a) any claim that our use of the Affiliates Trademarks infringes on any trademark, trade name, service ▇▇▇▇, copyright, license, intellectual property, or other proprietary right of any third party, (b) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (c) any claim related to your Website, including, without limitation, content therein not attributable to us. |
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Disclaimers |
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We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our Website will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors. |
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Independent Investigation |
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YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS |
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ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEBSITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEBSITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. |
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Miscellaneous |
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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 San Francisco, California, and you irrevocably consent to the jurisdiction of such courts. You 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 enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. |
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Rules Regarding Affiliates Communications And Promotion |
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The following rules apply to any press release or other communication that you may want to issue in connection with your participation in the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Affiliates Program, as well as to any other promotion of your Website. |
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Press Releases And Other Communications (Including All Communications On Your Website Or Via Other Media)
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A. Any communication must
accurately identify that you are participating in the
B. Any communication must
clearly and accurately describe the nature of your |
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your or any other
You may, without our prior consent, say the following in any communication: that you have become an ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Affiliate, and/or that you have joined or become a member of the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Affiliates Program.
You must obtain our prior written consent to use any other description of your participation in the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Affiliates Program or of the program itself, which we may give or withhold at our sole discretion. If you seek such consent, please submit the entirety of your proposed press release to us by Email at ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ for review. |
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Other Website Promotion |
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A. To protect the
integrity of the reputation of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Affiliates as well as the
B. Notwithstanding the
foregoing, you may promote your Website via mailings to recipients
C. In all promotion, you
must clearly represent yourself and your Website as entities |
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affiliated companies’ Websites.
D. Generally, in any forum
or media, you must honor the advertising practices and
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.,
reserves the right at its sole discretion to modify the foregoing rules at
any time. ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., reserves the right to take action against any
person or entity that does not conform to these rules. |
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Guidelines For Using The ▇▇▇▇▇▇▇▇▇▇.▇▇▇™ Trademark
These guidelines apply to your use of ▇▇▇▇▇▇▇▇▇▇.▇▇▇™ (The “Trademark”) in materials which have been approved in advance by ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. |
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1. You may use the Trademark solely for the purpose authorized by ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. 2. You may not alter the Trademark in any manner. For example, you may not change the proportion, color, or font of the Trademark. 3. You may not display the Trademark in any manner that implies sponsorship, endorsement by ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. outside of your involvement in the Affiliates Program. 4. You may not use the Trademark to disparage ▇▇▇▇▇▇▇▇▇▇.▇▇▇, its products or services, or in a manner which, in ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.’s reasonable judgement, may diminish or otherwise damage ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.’s goodwill in the Trademark. 5. The Trademark must appear by itself, with reasonable spacing (at least the height of the Trademark) between each side of the Trademark and other graphic or textual elements. 6. You acknowledge that all rights to the Trademark are the exclusive property of ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., and all goodwill generated through your use of the Trademark will inure to the benefit of ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. |
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▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. reserves the right in its sole discretion to modify these guidelines at any time.
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▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. reserves the right to take action against any use that does not conform to these guidelines. |