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Operating Agreement
This Agreement contains the complete terms and conditions that apply to your participation as an online Affiliate ("Affiliate") in the Affiliate Program of eGiftBaskets.com, Inc., and the establishment of links from your affiliate website (the "Affiliate Website") to our website, www.eGiftBaskets.com.com ("our site" or "Egiftbaskets.com").
1. Enrollment in the Affiliate Program
To begin the enrollment process, you will submit a complete Affiliate Program application via our site. We will evaluate your application in good faith and will notify you of your acceptance or rejection in a timely manner. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Affiliate Program for any reason, including, but not limited to, inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable. If we reject your application, you are welcome to reapply to the Affiliate Program at any time.
2. Promotion of Our Affiliate Relationship
As an Affiliate, we will make available to you a variety of graphics and textual links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions hereof, you may display as often and in as many areas on your site as you desire. The Links will serve to identify your site as a member of our Affiliate Program and will establish a link from your site to ours.
In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. You also agree that you will display in your site only those graphic or textual images (indicating a Link) that are provided by us, and you will substitute such images with any new images provided by us from time to time throughout the term of this Agreement. The Affiliate Site shall display such graphic and/or textual images prominently in relevant sections of their site and in a manner consistent with our then-current policies, including, but not limited to our policies regarding image resolution and proprietary notices. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. Each Link connecting users of your site to our site will in no way alter the look, feel, or functionality of our site. You may not post product prices.
3. Our Responsibilities
We will be responsible for providing all information necessary to allow you to make appropriate Links from your site to our site. We will be solely responsible for processing every order placed by a customer following a special Link from your site to our site, for tracking the volume and amount of sales generated by your site, and for providing information to Affiliate Sites regarding sales statistics via our reporting platform. We will be responsible for order entry, payment processing and related customer service.
4. Other Responsibilities and Opportunities of Affiliate Sites
a. If you qualify and agree to participate as an Affiliate Site, you shall display Links prominently throughout your site as you see fit and with our consent.
b. You will be entitled to earn referral fee payments for customer sales as set forth in sections 6 and 7 below.
c. You will not read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to eGiftBaskets.com by any person or entity;
d. You will not in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of eGiftBaskets.com
e. You will not take any action that could reasonably cause any confusion to the user as to which website transactions or actions are occurring.
f. Except for linking as described above, you will not post or serve any advertisements or promotional content around or in conjunction with the display of eGiftBaskets.com (e.g., through any "framing" technique or technology or pop-up windows), or assist, authorize, or encourage any third party to take any such action. 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 revenue sharing fees otherwise payable to you under this Agreement and/or terminate this Agreement.
g. We have the right in our sole discretion to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement.
5. Relationship
If, at any time, we discover that you are using your affiliate relationship with us for any reason other than that of an affiliate, your relationship with us will be immediately terminated and any commissions earned as a result of the transaction or transactions that gave rise to said termination shall immediately be disallowed or charged back.
6. Referral fee Payment Determination
Only products that we choose to offer through our website ("products") that are (a) sold by us, (b) purchased by users linking to our site from your site (as an approved affiliate) pursuant to a Link ("Linked Users"), (c) delivered to a customer, and (d) for which we have received full payment will qualify for a referral fee payment (each, a "Qualifying Purchase") less taxes, duties, shipping and handling, discounts and/or promotions, amounts returned for credit card fraud, bad debts or for returned goods . Referral fee paid (US Dollars only) will be charged back. If the amounts charged back to you exceed the amounts due to you, you will be required to pay us the difference. Affiliate Program referral fee percentages are displayed in Exhibit "A" attached hereto (below).
7. Referral Fees Payment
When the total referral fee payment(s) due to you (based on Section 6 above) exceeds 1000.00 Dollars, US, or your specified minimum payout level, at the end of any calendar month, you will be paid by a company check for the applicable referral fee (less any taxes required to be withheld under applicable law). Such referral fee checks will be sent approximately thirty (30) days after the end of each calendar month and will be paid in US Dollars only. If we determine, in our sole discretion, that you have breached this Agreement, we may (without limiting any other rights or remedies available to us) withhold any revenue sharing fees otherwise payable to you under this Agreement. As a condition to payment of a referral fee, you must will provide eGiftBaskets.com information as is reasonably necessary for Egiftbaskets.com to process payments to you in accordance with applicable laws and regulations. This includes, but is not limited to the Tax identification number. If your Internet Service Provider or Web host prohibits paid advertising or if you are not interested in receiving commissions, you may still be permitted (subject to your agreements with those parties) to add these eye-catching images to your site by either waiving your commissions or by selecting one of the following charities that we will donate your commissions to:
1. American Cancer Society
2. American Red Cross
3. United 26 non profit org
8. Reports of Sales
Through the application process, you will have the opportunity to register a user I.D. and Password and will have the ability to enter a password-protected site to receive your sales statistics on a daily basis.
9. Policies and Pricing
Customers who buy packages at our site through the Affiliate Program will be deemed to be customers of eGiftBaskets.com. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and Egiftbaskets.com 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 Egiftbaskets.com products sold under the Affiliate Program in accordance with our own pricing policies.
10. Publicity
You 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 prior written consent.
11. Licenses and Use of the eGiftBaskets.com Logos and Trademarks
a. WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS, TO USE THE ART.COM TRADEMARK AND LOGO AND SIMILAR IDENTIFYING MATERIAL RELATING TO US (BUT ONLY IN THE FORM(S) THAT THEY APPEAR AS PROVIDED ) (COLLECTIVELY, THE "LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF PROMOTING EGIFTBASKETS.COM PRODUCTS ON YOUR SITE. YOU MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS TO THE EXTENT THAT YOU ARE A MEMBER IN GOOD STANDING OF OUR AFFILIATE PROGRAM.
b. You shall not make any specific use of any Licensed Materials for purposes other than promoting eGiftBaskets.com Products on your site for Egiftbaskets.com, without first submitting a sample of such to us and obtaining the prior written consent of your Egiftbaskets.com representative, which consent shall not be unreasonably withheld. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light. We reserve all of our rights in the Licensed Materials and of our other proprietary rights. We may revoke your license immediately, by giving you written notice.
c. You grant to us a non-exclusive license to utilize your names, titles, and logos, as the same may be amended from time to time (the "Affiliate Trademarks"), to advertise, market, promote, and publicize in any manner our rights hereunder; provided, however, that we 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.
d. You may not register the words eGiftBaskets.com or variations thereof for use in any search engine, portal, advertising service or similar services service.
12. Obligations Regarding Your Site
a. You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. Such responsibilities include, but are not limited to, the technical operation of your site and all related equipment; creating and posting product reviews, descriptions, and references on your site and linking those descriptions to our site; the accuracy and propriety of materials posted on your site. Your site shall not (i) violate or infringe upon the rights of any third party, (ii) be libelous, (iii) advocate or promote sexually explicit material, (iv) not advocate or promote violence, (v) not promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, or (vi) not otherwise be illegal.
b. We disclaim all liability for all such matters. Further, you 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 your site.
13. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your Affiliate 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 notice of termination. You are only eligible to earn referral fee payment(s) on sales occurring during the term, and referral fee payment(s) earned through the date of termination will remain payable only if the related eGiftBaskets.com services are not canceled or returned, provided, however. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
14. Modification
We may modify any of the terms and conditions contained in this Agreement at any time at our sole discretion. You will be notified by e-mail. Modifications may include, but are not limited to, changes in the scope of available referral fee payment(s) or the payment program in general, payment schedules, payment procedures, and Affiliate Program rules. If any modification is unacceptable to you, your only recourse is to terminate this agreement. Your continued participation in the Affiliate Program following our posting of a change notice or new agreement on our site will constitute binding acceptance of the change.
15. Relationship of Parties
You and eGiftBaskets.com 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 site or otherwise, that reasonably would contradict anything in this Section.
16. Disclaimers
We make no express or implied warranties or representations with respect to the Affiliate Program or any eGiftBaskets.com Products sold through the Affiliate 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, we make no representation that the operation of our site will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors. Egiftbaskets.com represents merchant partners who do business primarily in the United States only. We are not aware of, nor do we represent that any of our merchant partners transact business anywhere else other than the United States. As an approved affiliate member, you represent that the primary focus of your site is to transact business within the United States, unless prior approval is gained from Egiftbaskets.com.
17. Representations and Warranties
You hereby represent and warrant to us as follows:
a. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
b. The execution, delivery, and performance by you of this Agreement and the consummation by you 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 you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
c. You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use your 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 you or binding upon your 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 you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.
e. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
18. Confidentiality
Affiliate agrees that all information business and financial information including but not limited to product datafeeds, customer lists, referral fee percentages and pricing and sales information, concerning us shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for its own business purposes 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 you.
19. Sub-Affiliates
You may obtain Sub-Affiliates by referring someone to eGiftBaskets.com who subsequently signs up as an Affiliate. You may not sign-up websites owned by yourself or beneficially owned by yourself as a Sub-Affiliates. To obtain the Sub-Affiliate, your Affiliate Referral Identification number must be passed to our system by a recruiting banner at the time the potential Sub-Affiliate signs up. The status of Sub-Affiliation cannot be instated any time after initial sign up. You do not necessarily have any rights to obtain any personal information about your Sub-Affiliates. You are not limited as to the number of Sub-Affiliates you can have.
We will pay you a flat referral fee of 5% of Net Sales for all completed sales arising out of transactions directly linked from the Sub-Affiliate's site to eGiftBaskets.com's site. Egiftbaskets.com's payment of these fees is subject to the same exceptions as fees paid for Affiliate referrals.
20. Limitation of Liability
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 AFFILIATE 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 AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL REFERRAL FEE PAYMENT(S) PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
21. Indemnification
You hereby agree to indemnify and hold harmless eGiftBaskets.com 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 (i) any claim that our use of the Affiliate Trademarks 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 or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
22. Independent Investigation
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 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 AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
23. 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 Los Angeles County, 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 a provision or any other provision of this Agreement.
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