Affiliate Agreement

This Agreement contains the complete terms and conditions that apply to affiliates participation as an affiliate in the Affiliates Network of Photofetti, and the establishment of links from your affiliate web site to our web site"Photofetti.com."

1. Enrollment in the Affiliate Network:

First, affiliate applicant's need to submit a complete Affiliate Network application. We will evaluate your application and will notify applicant of their acceptance or rejection in a timely manner. Photofetti may reject your application if Photofetti determines (at our sole discretion) that applicant's site is unsuitable for the Affiliate Network for any reason.

If we reject your application, you are welcome to reapply to the Affiliate Network at any time.

This agreement becomes binding when Photofetti agrees to the acceptance of applicant's affiliate relationship.

2. Prohibited Sites

Prohibited Sites for advertising Photofetti products or services:

Sites that promote sexually explicit material or violence.
Sites that promote discrimination based on race, sex, religion, national origin, or physical disability.
Sites that promote illegal activities.

3. Spam

Affiliate agrees to not utilize SPAM in promoting Photofetti. This action may result in the immediate suspension or termination of Affiliate account with a cancellation of any pending commissions. Affiliate will also be in violation of the Photofetti Affiliate Agreement and subject to legal action and be held liable for any financial loss incurred by Photofetti. Any service interruptions to Photofetti as a result of Affiliates spamming will be billed to Affiliate at 200 U.S. dollars per hour until service is restored.

For the purpose of this agreement SPAM is defined as directly emailing ANYONE, in bulk or by single mailing, about Photofetti, who has not specifically requested the information directly from Affiliate. Exceptions to this are:

Mailing to APPROPRIATE OPT-IN mailing lists where the source does the mailing on Affiliate's behalf. However, use extreme caution when choosing an opt-in mailing list company! Using anything but the most reputable sources could generate spam complaints against Affiliate resulting in suspension or termination.
You may include information on Photofetti in email Acknowledgement Messages for orders and inquiries that you receive so long as it is stated up front that you will be sending them an acknowledgement.

Photofetti also considers ANY type of advertisement about Photofetti posted to a Newsgroup or Chat Room to be spam. Violators will be fined at 50 U.S. dollars per incident.

4. 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, for accurately tracking the volume and amount of sales generated by your site, and for providing information to Affiliate Sites regarding sales statistics. This will include placing a "cookie" on a customer's computer to track re-entries to our site. We will be responsible for order entry, payment processing, shipping, cancellations, returns, collecting sales and other taxes, and related customer service.

5. Commission Determination:

Photofetti will pay Affiliate commissions based on the purchase price of Photofetti products that are sold to customers that link to Photofetti's web site though your site, and shall include sales to customers that make the purchase at the time the customer links to our site or at a future date when the customer re-enters Photofetti's site though your site. Only products that are sold by us (to users of your site linked to our site), shipped to a customer, and for which we have received payment will qualify for a commission. Commission rates will vary based upon the volume of sales made on your site:

Commission rates will begin at Ten Percent (10%) of net sales and go up to Fifteen Percent (15%) depending on sales of the affiliate. Commissions are up to the sole discretion of Photofetti and are eligible to change at any point. Commissions exclude amounts collected by us for sales taxes, duties, rush, shipping, handling, and similar charges, amounts due to credit card fraud and bad debt, and credits for returned goods ("Net Sales"). All available products on our site will be included in the computation of Net Sales, regardless of whether the product is a next day delivery, international, or weekend delivery item.

6. Commission Payment:

Subject to clause (b) below, based on Net Sales received by us in connection with sales of products purchased by your users through a Link to our site, we will send a commission fee check for the applicable commission fee (less any taxes required to be withheld under applicable law) to you within thirty (30) days after the end of each month, along with adequate documentation to verify the accuracy of the commission payment. Affiliate shall have the right, on reasonable notice to Photofetti, to audit the books and records of Photofetti to verify the accuracy of the commission payments.
The affiliate will be paid monthly, the first period starting on the date the affiliate is accepted into the network. If the affiliate's commission for any month is less than $25, the total amount will be carried to the next month. Once commission passes $25, a check will be sent to the affiliate at the end of the month for the complete amount owed to the affiliate until the end of the month.

7. Reports of Sales:

You will be given a password and have the ability to enter a password-protected site to receive your sales statistics on a daily basis. To find out more please click here.

8. Your Responsibilities:

You are solely responsible for ensuring that reviews, descriptions, and articles on your site comply with applicable copyright and other laws. You must have express permission to use another party’s copyrighted or other proprietary material. We are not responsible for violations.

9. Policies and Pricing:

Customers who buy Photofetti products through the Affiliate Network will be deemed to be customers of Photofetti. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and 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 the Affiliate Network in accordance with our own pricing policies. products prices and availability may vary from time to time. Because price changes may affect products that you already have listed on your site, you should not include price information in your products descriptions.

10. Publicity:

Neither party shall create, publish, distribute, or permit any written material that makes reference to the other party without first submitting such material to the other party and receiving written consent, which shall not be unreasonably withheld.

11. Licenses and Use of the Photofetti Logos and Trademarks:

WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS AND UNDER THE CONDITIONS PROVIDED FOR HEREIN, TO USE OUR LOGOS, TRADE NAMES, TRADEMARKS, AND SIMILAR IDENTIFYING MATERIAL RELATING TO US (COLLECTIVELY, THE "LICENSED MATERIALS"), FOR THE PURPOSE OF providing a link to our web site and advertising, marketing, and/or promoting the sale of our products YOU MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY WITHOUT WRITTEN PERMISSION. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS during the term of this agreement.
You shall not make any specific use of any Licensed Materials for purposes other than providing a link to our web site and advertising, marketing, and/or promoting the sale of our products, without first submitting a sample of such to us and obtaining the prior written consent of your Photofetti, account executive, which shall not be unreasonably withheld. We reserve all of our rights in the Licensed Materials and of our other proprietary rights. We may revoke your license at any time, by giving you written notice.
Affiliate grants Photofetti a revocable, non-exclusive, non-transferable, non-sub licensable, and royalty free licence to use Affiliate's name, title, and logo's (the "Affiliate Trademarks") for the sole purpose of advertising, marketing, promoting, or publicizing the affiliate agreement between the parties. Photofetti agrees not to use the Affiliate Trademark without first submitting a sample of such use to Affiliate for prior written approval. Affiliate may revoke this license at any time with notice to Photofetti.
Photofetti may not utilize the Affiliate Trademark in any manner that is not expressly permitted in this Agreement. All rights not specifically granted herein are retained by Affiliate. Except as specifically provided in this may not create derivative works based on the Affiliate Trademark. Photofetti may not register or apply for any trademarks, copyrights, patents, domain names, or other right based on the Affiliate Trademarks.
All rights to the Affiliate Trademarks are owned by Affiliate and are protected by United States trademark and copyright law, international trademark and copyright laws, international treaty provisions, and other applicable laws. Photofetti acknowledges Affiliate's exclusive right, title and interest in and to the Affiliate Trademark and Photofetti agrees never to challenge the ownership or validity of the Affiliate Trademarks or any application for registration thereof. Photofetti agrees that it does not have any ownership in the Affiliate Trademarks and will not make any representations to the contrary. Photofetti's use of the Affiliate Trademark shall insure to the benefit of Affiliate. Photofetti will not at any time do, or knowingly permit to be done, any act or things which would in any way impair the right of Affiliate in and to the Affiliate Trademarks, which would affect the validity of the Affiliate Trademarks, or which would depreciate their value or their reputation.

12. Obligations Regarding Sites:

Each party will be solely responsible for the development, operation, and maintenance of its site and for all materials that appear on its site. Such responsibilities include, but are not limited to, the technical operation of its site and all related equipment; creating and posting products, descriptions, and references on its site and linking those descriptions to our site; the accuracy and propriety of materials posted on your site (including, but not limited to, all flower-related materials); ensuring that materials posted on its site do not violate or infringe upon the rights of any third party and are not otherwise illegal, and do not contain or link to any content that is pornographic or profane. Each party will indemnify and hold other party harmless from all claim, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance and content of it's own site.
Photofetti represents and warrants that all links, any related advertising, and any information on its web site comply with all laws and FTC regulations, including but not limited to, prohibitions on deceptive and misleading advertisements.

13. Term of the Agreement:

The term of this Agreement will begin upon our acceptance of your Affiliate Network 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. You are only eligible to earn commission fees on sales occurring during the term, and fees earned through the date of termination will remain payable unless the related product orders are cancelled within 30 days of the date of termination. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid but in no event longer than 45 days from the date of termination.

14. Relationship of Parties:

You and Photofetti, are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Neither party will have no authority to make or accept any offers or representations on the other's behalf.

15. Disclaimers:

We make no express or implied warranties or representations with respect to the Affiliate Network. 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.

16. Representations and Warranties:

Each party hereby represents and warrants to the other as follows:

This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable in accordance with its terms.
The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions discussed herein 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 you or your assets.
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 (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.
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 discussed herein.
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.

17. Confidentiality:

Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or you, respectively, or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party 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 such party hereto or its affiliates.

18. Limitation of Liability:

Neither party will 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 Network, even the other party has have been advised of the possibility of such damages. Further, the aggregate liability of a party arising with respect to this Agreement and the Affiliate Network will not exceed the total commission fees paid or payable to you under this Agreement ( excluding indemnification claims)..

19. Indemnification:

You hereby agree to indemnify and hold harmless Photofetti, 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.

Photofetti hereby agrees to indemnify and hold harmless Affiliate, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against and and all Losses insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that your use of the Licensed Materials 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 Photofetti herein, (iii) any claim related to our site, including, without limitation, content therein not attributable to you, (iv) defects (whether obvious or hidden) in any products sold by Photofetti, (v) personal injury caused by products sold by Photofetti, or (vi) negligent acts or omissions on Photofetti's part.

20. Independent Investigation:

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE NETWORK AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

21. Governing Law:

This Agreement will be governed by the laws of the United States and the state of Minnesota, 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 the county of Dakota, and the parties irrevocably consent to the jurisdiction of such courts. Neither party may assign this Agreement, by operation of law or otherwise, without the other parties prior written consent. Subject to that restriction, this Agreement will be binding on and enforceable against the parties and their respective successors and assigns. The other party's Failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of a party's right to subsequently enforce such a provision or any other provision of this Agreement.

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