AFFILIATE PROGRAM TERMS & CONDITIONS BY SUBMITTING THE ONLINE APPLICATION YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION OF THIS AGREEMENT.
This Affiliate Agreement (this "Agreement") is made by and between you and Photomanhattan, Inc. (together with any other entities that it controls, is controlled by or is under common control with, "Photomanhattan") and contains the complete terms and conditions that apply to your participation in the Photomanhattan Affiliate Program (the "Program"). Throughout this Agreement, "we," "us," and "our" refer to Photomanhattan, and "you," "your," and "yours" refer to the person or entity applying to be included in the Program hereunder. The purpose of this Agreement is to allow HTML linking between your web site and the Photomanhattan web site.
Currently, the Program is a PPS (pay-per-sale) affiliate program, but Photomanhattan reserves the right to change the Program at any time, in its sole discretion. Payouts may differ based on products sold or sales thresholds achieved. You may review more detailed information regarding payouts and related policies and procedures through the Account Manager. Photomanhattan reserves the right to terminate this Agreement and your participation in the Program immediately and without notice to you upon any suspicion of fraud, abuse or other unacceptable activity or behavior in connection with the Program, as determined by Photomanhattan in its sole discretion. Photomanhattan shall not be liable to you for any fees associated with suspicious activity.
TERM OF THE AGREEMENT/TERMINATION
The term of this Agreement will begin upon acceptance of your application by Photomanhattan and will end immediately when terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. In addition, this Agreement will terminate automatically upon any breach of this Agreement by you.
Upon termination, all rights and licenses granted to you hereunder will immediately cease and you must immediately remove all Links and cease using all Marketing Materials, confidential information and any other information or materials belonging to Photomanhattan or in any way regarding Photomanhattan or the Photomanhattan Services and Photomanhattan may take all actions necessary to disable your participation in the Program. Provisions of this Agreement which by their nature should survive termination or expiration of this Agreement in order to be given full effect, including, but not limited to, the provisions of Sections 12 through 24, will survive the termination or expiration of this Agreement in accordance with their terms.
MODIFICATION BY Photomanhattan
LICENSE OF TRADEMARKS AND OTHER INTELLECTUAL PROPERTY
Use of any of our trademarked terms as part of the domain or sub-domain for your website is strictly prohibited, including but not limited to: photomanhattan.com, photomanhattan.net, photomanhattan, Photomanhattan, Inc. Photomanhattan grants to you a limited, non-exclusive, non-transferable, revocable right, during the term of this Agreement, to (i) access the Photomanhattan site through the Links solely in accordance with the terms of this Agreement and (ii) display the Photomanhattan logos, trade names, marks, and similar identifying material (the "Photomanhattan Marks") solely in the form that we provide to you or authorize you to use in connection with such Links and only as permitted herein. Photomanhattan may revoke your license at any time by giving you written notice. Unless revoked sooner by Photomanhattan, this license terminates upon the effective date of the expiration or termination of this Agreement.
You acknowledge and agree that: (a) you will use the Photomanhattan Marks in a lawful manner and only as permitted hereunder; (b) you will use the Photomanhattan Marks in strict compliance with Schedule 2 and all formats, guidelines, standards and other requirements prescribed by Photomanhattan; (c) the Photomanhattan Marks are and shall remain the sole property of Photomanhattan (or its licensors); (d) nothing in this Agreement confers in you any right of ownership in the Marks and all use thereof by you inures to the benefit of Photomanhattan (or its licensors); and (e) you will not, now or in the future, dispute, contest or do anything to impair the validity of any Photomanhattan Marks or use any mark or logo confusingly similar to any Photomanhattan Marks. You may not alter, modify, or change the Photomanhattan Marks in any way. You are only entitled to use the Photomanhattan Marks to the extent that you are authorized to participate in the Program hereunder. You agree not to use the Photomanhattan Marks in any manner that is misleading or disparaging or that otherwise portrays Photomanhattan or its affiliates in a negative light. You are not authorized to make any use of any Photomanhattan Marks for any purpose other than as expressly provided hereunder without first submitting a sample to Photomanhattan and obtaining Photomanhattan's prior written consent.
As between Photomanhattan and you, the Photomanhattan Marks, Marketing Materials, all demographic and other user information relating to Program, and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Photomanhattan or otherwise related to Photomanhattan, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, "Photomanhattan Property") shall be and remain the sole and exclusive property of Photomanhattan. To the extent, if any, that ownership of any Photomanhattan Property does not automatically vest in Photomanhattan by virtue of this Agreement, or otherwise, you hereby transfer and assign to Photomanhattan, effective automatically upon the creation thereof, any and all rights, title and interest you may have in and to such Photomanhattan Property, including the right to sue and recover for past, present and future violations thereof.
Photomanhattan MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ITS OBLIGATIONS HEREUNDER OR ANY ASPECT OF THE PROGRAM OR ANY Photomanhattan PRODUCTS OR SERVICES, AND Photomanhattan EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR TRADE USAGE. YOU UNDERSTAND AND AGREE THAT THE PROGRAM AND THE Photomanhattan PRODUCTS AND SERVICES MAY NOT SATISFY THE REQUIREMENTS OR YOU OR ANY THIRD PARTY. IN ADDITION, Photomanhattan MAKES NO REPRESENTATION OR WARRANTY THAT ANY ASPECT OF THE ANY ASPECT OF THE PROGRAM OR THE PROVISION OF ANY Photomanhattan PRODUCTS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND Photomanhattan WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. YOU UNDERSTAND THAT Photomanhattan DOES NOT PROVIDES ANY WARRANTY, REPRESENTATION OR GUARANTEE AS TO THE ACTUAL AMOUNT OF REVENUES OR ANY OTHER RESULTS THAT WILL BE GENERATED, ACHIEVED OR PAID PURSUANT TO THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH THE PROGRAM OR ANY Photomanhattan PRODUCTS OR SERVICES.
REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant to us as follows:
You will use the Links only as authorized hereunder. You are duly authorized to enter into this Agreement and perform all obligations hereunder. This Agreement has been duly and validly executed and delivered by your electronic submission and constitutes legal, valid, and binding obligation, enforceable against you in accordance with its terms.
The execution, delivery, and your performance of this Agreement, and your consummation of the transactions contemplated hereby will not, with or without notice, lapse of time, or both, conflict or violate any provision of law, rule, or regulation to which you are subject or any provision of any corporate or other organizational documents applicable to you; or any agreement or other instrument applicable to you or binding upon your assets or properties.
You have the sufficient right and power to grant Photomanhattan the license to use the Affiliate Marks in the manner contemplated herein, and such grant does not and will not breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties; or infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
No consent, approval, or authorization of, exemption by, or filing with any governmental authority or third party is required in connection with the execution, delivery, and performance of this Agreement or any other action taken by you.
To the best of your knowledge, there is no pending or threatened claim, action, or proceeding against you, or any affiliate of yours with respect to the execution, delivery, or consummation of this Agreement, or the Authorized Affiliate Marks. To the best of your knowledge, there is no basis for any such claim, action, or proceeding.
You are an adult of at least 18 years of age.
You shall ensure that all information provided to you by Photomanhattan (including, without limitation, the terms of this Agreement, business and financial information, source code, object code, any other software programs, product designs, know-how, techniques, processes, algorithms, customer and vendor information, information concerning research or development and pricing and sales information concerning Photomanhattan and any information of a third party who may disclose such information to Photomanhattan or you in the course of Photomanhattan's business) remains strictly confidential and secret. You shall take all reasonable steps, at least substantially equivalent to the steps you take to protect your own proprietary information, to prevent the unauthorized duplication, disclosure or use of any such information provided to you by Photomanhattan. You shall not to use such information, directly or indirectly, for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known to the public and may be rightfully obtained through a source other than Photomanhattan or its affiliated entities without breach of any confidentiality obligations to Photomanhattan.
Notwithstanding the foregoing, you are hereby authorized to deliver a copy of any such information to your accountants or attorneys on a confidential basis, and as required pursuant to a subpoena issued by any court or administrative agency or otherwise required by applicable law, rule, regulation, or legal process. In the event that a court (or other authority with power to do so) orders you to disclose any confidential information, you agree to give Photomanhattan immediate notice of such order.
LIMITATION OF LIABILITY
Photomanhattan SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS HEREUNDER, THE Photomanhattan SERVICES OR OTHERWISE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUE, PROFITS, OR DATA) EVEN IF Photomanhattan HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, Photomanhattan'S AGGREGATE LIABILITY FOR ANY REASON UNDER THIS AGREEMENT OR IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE PROGRAM WILL NOT EXCEED THE COMMISSION FEES PAYABLE TO YOU DURING THE LAST FULL CALENDAR MONTH IMMEDIATELY PRECEDING THE TERMINATION OF THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
You hereby agree to indemnify and hold harmless Photomanhattan and its licensors, licensees and contractors, and their respective directors, officers, employees, agents, partners, owners and affiliates and their respective heirs, administrators, executors, successors and assigns, from and against any and all claims, causes of action, demands, obligations, lawsuits, liabilities, damages, fines, penalties, judgments, settlements, costs, expenses (including reasonable attorneys' fees and disbursements) or other losses of any kind or nature whatsoever (any and all of the foregoing hereinafter referred to as "losses") insofar as such losses arise out of or are based on: (i) any claim that any use of any intellectual property or other material you provide infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party; (ii) any inaccuracy, failure or breach of any representation, warranty, covenant, obligation or agreement made by you herein or to any third party; (iii) any misuse of any of the Links, Marketing Materials or the Photomanhattan Marks; (iv) any claim related to your web site, including, without limitation, any content therein not provided by Photomanhattan; or (v) any negligence or misconduct on the part of you or any of your employees, agents, contractors or affiliates. You shall promptly inform Photomanhattan of any information known to you related to any matters that could reasonably lead to a claim, demand or liability of or against Photomanhattan by any third party.
This Agreement is governed by and shall be construed and enforced in accordance with the laws of the State of Texas and applicable federal laws of the United States of America, without regard to any choice or conflict or law principles that would result in the application of the law of any other jurisdiction. Jurisdiction and venue for all disputes hereunder is limited to the state and federal courts located within Travis County, Texas and the parties hereby irrevocably consent to and waive any objections with respect to such jurisdiction and venue. Photomanhattan's performance pursuant to this Agreement is limited to the State of Texas and any obligations hereunder are deemed to be performed by it shall be exclusively within the State of Texas.
Photomanhattan may sell, transfer, assign or otherwise dispose of any or all of its rights or obligations under this Agreement, in whole or in part, at any time and from time to time without notice to or the consent of you. You may not sell, transfer, assign or otherwise dispose of any or all of your rights or obligations under this Agreement, in whole or in part, without the prior written consent of Photomanhattan. Subject to that restriction, this Agreement is binding upon, and inures to the benefit of, the parties and their respective permitted successors and assigns. The failure of either party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any of its rights under this Agreement for a breach thereof shall not be deemed to be a waiver or relinquishment of such party's right to assert or rely upon any such provision or right in that or any other instance or breach; rather, the same shall be and remain in full force and effect. Each waiver must be set forth in a written instrument signed by the waiving party.
If any term or provision of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, order or other rule of law, that term or provision may be modified or deleted, but only to the extent necessary to achieve the intent of the parties and comply with the statute, regulation, ordinance, order or rule, and the remaining provisions of this Agreement shall remain in full force and effect. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement. Unless otherwise expressly provided in this Agreement, the rights and remedies available to the parties hereunder are cumulative and in addition to all other rights and remedies available to the parties under applicable law or at equity.
ATTORNEYS' FEES AND EXPENSES
If either party brings any action against the other party regarding the subject matter hereof, the prevailing party is entitled to recover, in addition to any other relief granted, reasonable attorneys' fees and expenses actually incurred by reason of such action.
PROMOTION OF THE PROGRAM
As part of the Program, you may obtain access to an affiliate account interface ("Account Manager") handled by either PhotoManhattan or a third-party affiliate network provider assigned by PhotoManhattan. Unless already registered with our assigned third-party affiliate network provider, you must create login and password to use the Account Manager. You will be able to change your password in accordance with the Account Manager provider's policies and procedures. Through the Account Manager you may review additional details about the Program and currently active campaigns, download HTML code for certain graphic and textual links (each, a "Link") that identify your web site using identification codes, cookies or other tracking protocols and establish a hyperlink between your site and ours that directs traffic to landing pages within the Photomanhattan web site. In order for us to accurately keep track of all traffic from your site to ours, you must use the HTML code that we provide. Subject to the terms and conditions of this Agreement, you may display the Links provided by Photomanhattan to you on your web site as part of the Program. Photomanhattan reserves the right, at any time, to review your placement and use of Links and to require changes to comply with various policies and guidelines provided to you by Photomanhattan from time to time.
From time to time, Photomanhattan, in its sole discretion, also may make available various marketing or promotional materials relating to Photomanhattan ("Marketing Materials") as part of the Program. All Marketing Materials will be solely provided by Photomanhattan alone except where agreed to by Photomanhattan in writing in advance. The Marketing Materials are provided on an AS IS and AS AVAILABLE basis, WITH ALL FAULTS and WITHOUT WARRANTY of any kind and nothing contained in any Marketing Materials shall in any way be deemed a representation or warranty of Photomanhattan. The Marketing Materials shall at all times be the sole and exclusive property of Photomanhattan and no rights of ownership shall at any time vest with you even in such instances where you have been authorized by Photomanhattan to make changes or modifications to the Marketing Materials.
RESPONSIBILITIES OF Photomanhattan
PAYMENT OF FEES
All payments for the Program are handled by PhotoManhattan or the third-party affiliate network provider assigned by PhotoManhattan. Please review their respective policies and procedures. As required by U.S. law, U.S. residents will be required to sign a W-9 form for the Internal Revenue Service prior to being sent any payments.
CUSTOMER POLICIES AND PRICING
Customers purchasing products and services as part of the Program will be deemed customers of Photomanhattan. All rules, policies, terms, conditions and operating procedures concerning customer orders, customer service, and Photomanhattan sales will apply to these customers. Photomanhattan may change its policies and operating procedures, including pricing, at any time. Photomanhattan will determine, in its sole discretion, the prices to be charged for products and services sold by Photomanhattan in accordance with our own pricing policies. You shall not include price information on your web site unless pricing information is made available on Links provided by Photomanhattan. Prices and availability of products and services sold via the Photomanhattan site may vary from time to time. Photomanhattan uses commercially reasonable efforts to present accurate information, but we do not guarantee the availability or price of any particular product or service.
OBLIGATIONS REGARDING YOUR WEB SITE
You will be solely responsible for the development, operation, and maintenance of your web site and for all materials that appear on your web site. Such responsibilities include, but are not limited to, the technical operation of your web site and all related equipment; the accuracy and propriety of materials posted on your web site (including but not limited to, Photomanhattan related materials); ensuring that your web site and all materials posted on your web site do not violate or infringe upon the intellectual property or other rights of any third party and are not libelous or otherwise illegal. We reserve the right, but undertake no obligation, to monitor your site at any time to determine if you are following the terms and conditions of this Agreement or to make sure that your links to our web site are appropriate. We may notify you of any changes to your site that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the Program
Photomanhattan disclaims all liability for any and all aspects of the development, operation and maintenance of your web site and for any and all materials that appear on your web site. Further, you will indemnify and hold harmless Photomanhattan and its affiliated entities, their respective partners, officers, directors, agents and employees, and their respective heirs, administrators, executors, successors and assigns, from and against any and all claims, demands, obligations, causes of action and lawsuits and all damages, liabilities, fines, judgments, penalties, costs (including the payment of reasonable attorneys' fees and disbursements), in any way arising out of or relating to any and all aspects of the development, operation or maintenance of your web site and any and all materials that appear on your web site.
You agree that your web site will not, in any way, copy or resemble the look and feel of the Photomanhattan site and that you will not do anything to create the impression that your web site is the Photomanhattan site or a part of the Photomanhattan site. You also agree that you will not frame the Photomanhattan site in any manner including without limitation causing your web site's tool bar to appear on the Photomanhattan site. You further agree that your web site will not contain any content of the Photomanhattan site or any materials which are proprietary to Photomanhattan except with the prior written permission of Photomanhattan. You also agree that your domain name does not and will not contain "Photomanhattan" or any variation or misspelling thereof or any other name, mark or other identifier used by Photomanhattan.
It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person's copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person's copyrighted material or other intellectual property in violation of the law or any third party rights.
If Photomanhattan accepts your application, you will be provided with an address for notice purposes through the Account Manager. The contact information you provide on your application will serve as your notice information. Except as otherwise allowed via the Account Manager, any notice, approval, request, authorization, direction or other communication by you under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally or by e-mail to the party to which the same is directed; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit if mailed by certified or registered mail, return receipt requested, postage and charges prepaid, to the address specified in accordance herewith.
RELATIONSHIP OF PARTIES
The parties to this Agreement are independent contractors and nothing in this Agreement will be deemed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Photomanhattan or to impose any obligation or liability associated with any such relationship upon Photomanhattan. This Agreement does not grant you any right, power or authority to enter into any agreement for, or on behalf of, or to create, assume or incur any obligation or liability of, or to otherwise bind, Photomanhattan.
Photomanhattan shall not be liable or responsible for your acts, omissions or liabilities. In no event will you take actions that would expressly or impliedly create the impression that you are an employee or agent of Photomanhattan or its affiliated entities.
You will have no authority to make or accept any offers, agreements, representations or warranties on behalf of Photomanhattan. You will not make any representation, warranty or statement, whether on your web site or otherwise, that contradicts anything in this Section.
NO EXCLUSIVITY / INDEPENDENT INVESTIGATION
You acknowledge that you have read this Agreement and agree to all of the terms and conditions in this Agreement. You understand that Photomanhattan may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate web sites that are similar to or compete with your web site. You have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement.
This Agreement constitutes the entire understanding between the parties and cancels and supersedes any and all previous or contemporaneous negotiations, understandings or contracts, whether written or oral, between the parties relating to the subject matter of this Agreement. No purported modification or amendment by you is binding on Photomanhattan unless we agree in writing signed by a duly authorized representative of Photomanhattan. Photomanhattan is not bound by, and it specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by you in any correspondence or other document, unless Photomanhattan specifically agrees to such provision in writing.