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Affiliate/Partner Agreement
This Agreement contains the complete terms and conditions that apply to your participation
in the MobileImage.com Affiliate Program (the "Program"). As used in this Agreement, "we"
means MobileImage.com (FXOL), and "you" means the applicant. "Site" means a World Wide Web
site and, depending on the context, may refer either to MobileImage.com's site located at
www.MobileImage.com, or to the site that you will link to our site (and which you will
identify in your Program application). A "Product" is any product listed on our site,
excluding products not fulfilled by our supplier partners or by us. "Commissions" and
"Referral Fees" are the amounts that we will pay you for certain click-throughs and Product
sales, pursuant to Section 5 below.
THIS IS A LEGAL, BINDING AGREEMENT BETWEEN YOU AND MobileImage.com (FXOL). BY COMPLETING YOUR APPLICATION AND CLICKING ON "I AGREE" AT THE END OF THIS PAGE, YOU ARE AGREEING TO BE BOUND BY THE AGREEMENT'S TERMS.
Enrollment in the Program
Links on Your Site
Exclusivity
Order Processing
Commissions and Referral Fees
Fee Payment
Policies and Pricing
Use of Logos and Trademarks
Indemnification
Term and Termination
Modification
Limitation of Liability
Disclaimers
Acknowledgments
General Provisions
1. Enrollment in the Program. To begin the enrollment process,
you will submit a complete Program application via our site. We will evaluate your
application in good faith and will notify you of our acceptance or rejection of the
application. We may reject your application if, in our sole discretion, we determine
that your site is unsuitable for the Program. Unsuitable sites include (but are not
limited to) those that: promote sexually explicit materials; promote violence; promote
discrimination based on race, sex, religion, nationality, disability, sexual orientation,
or age; promote illegal activities; include "MobileImage.com" or variations or
misspellings thereof in their domain names; or otherwise violate others' intellectual
property rights.
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 thereafter, in our sole
discretion, we determine that your site is unsuitable for the Program, we may terminate
this Agreement.
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2. Links on Your Site. If you are approved as an Affiliate, we
will provide you with a selection of links to our site, which may include graphical and
textual links, banner advertisements and button links, incorporating MobileImage.com's
logo and words identifying MobileImage.com which, subject to the terms and conditions
in this Agreement, you may display on your site (links to our site which you place on
your site will be referred to as "Links"). To permit accurate tracking, reporting, and
commission and fee accrual, we will provide you with special "tagged" link formats to be
used in all Links. You must ensure that every Link utilizes these formats; otherwise, you
will not be eligible to receive Commissions and Referral Fees.
You agree that you will display the Links prominently throughout your site and cooperate
fully with us to establish and maintain the Links. You may place and use any Link in as
many areas on your site as you wish, subject only to the limitations set forth in this
Agreement. You may not (i) present the Links in combination with any other name or mark,
in connection with your own goods or services, or in any manner that may suggest or imply
that you are affiliated with MobileImage.com or that your goods or services are supplied
by, sponsored by, or endorsed by MobileImage.com, (ii) alter or change the look, feel
or functionality of the Links without our express prior written consent, or (iii) use
links to our site other than the Links provided by or approved by us. We reserve the
right to monitor your site on occasion to determine if you are in compliance with this
Agreement.
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3. Exclusivity. You agree that MobileImage.com (FXOL). and its
licensees (if any) will be the exclusive provider(s) of custom vinyl graphics, signs
and banners.
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4. Order Processing. We will process Product orders placed by customers
who follow Links from your site to our site. We reserve the right to reject orders that do
not comply with requirements that we periodically may establish. We and our supplier partners
will be responsible for all aspects of order processing and fulfillment. We will track sales
made to customers who enter our site through Links and purchase Products. You will have access
to the reporting center, where you can check your site's sales activity on a daily basis.
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5. Commissions and Referral Fees. If a user enters our site through a
Link (a "Click-Through"), uses our system to purchase a Product during the session initiated
by such Link, accepts delivery of the Product at the designated shipping destination, and pays
the full amount due to us, we will pay you a commission (the
"Commission") equal to 10% of Net Sales price of such Product.
The "Net Sales" amount equals the amount actually paid to us or to our supplier partner for
the Product, excluding sales taxes, insurance, duties, shipping, handling, and similar
charges, minus amounts we pay due to credit card fraud and bad debt, and credits for
returned goods.
No Commission or Referral Fee (collectively, "Fees") will be paid if: (i) the visitor to
our site cannot be tracked by our system, (ii) the visitor accesses our site by a means
other than a Link, (iii) the visitor leaves our site without making a purchase and later
returns to our site to make a purchase via any method other than a Link, (iv) you purchase
the Product for resale or commercial use of any kind, or (v) the Product is purchased
through any device (an "Internet Access Appliance") that provides Internet access but
does not present our site, or permit users to access and interact with our site, in the
same manner as a desktop computer (e.g. mobile devices such as cellular telephones or
PDAs that may access only limited or modified versions of our site).
You may not purchase Products for resale or commercial use of any kind. This includes
orders for or on behalf of customers. Such purchases may result (in our sole discretion)
in the withholding of Fees or the termination of this Agreement.
The Fees are for your use only and therefore may not be offered, directly or indirectly,
in whole or in part, to customers in the form of rebates, coupons, commissions, refunds
or in any other manner.
In addition, you may not: (a) offer any person or entity any incentive (including,
without limitation, money, rebates, "rewards programs," discounts or other benefits)
to use Links to access our site; or (b) post any Links on any Web site or other platform
that is accessible through any Internet Access Appliance. If we determine, in our sole
discretion, that you have offered any person or entity any such incentive, or posted
Links on any such Web site or platform, we may (without limiting any other rights or
remedies available to us) withhold any Fees otherwise payable and/or terminate this
Agreement.
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6. Fee Payment. We will pay you Fees on a quarterly basis.
Approximately 45 days following the end of each calendar quarter, we will send you a
check for the Fees earned on Products for which full payment was received, and
Click-Throughs that were made, during that quarter, less any taxes that we are required
by law to withhold. If the Fees payable to you for any calendar quarter are less than $50,
we will hold those amounts until the total amount due is at least $50. If a Product that
generated a Commission is returned by the customer, we will deduct the corresponding
Commission from your next quarterly payment. If there is no subsequent payment, we will
send you a bill for the Commission amount.
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7. Policies and Pricing. Customers who buy products through this
Program are deemed to be customers of MobileImage.com (FXOL) and are therefore subject
to MobileImage.com's rules, policies, and operating procedures. Because these rules,
policies and procedures, and Product prices, may be periodically modified without notice
to you, you may not post any of such information on your site (except as authorized by
Section 2 above). We will use commercially reasonable efforts to present accurate
information, but we cannot guarantee the accuracy of such information or the availability
or price of any particular Product.
You may not, without our written consent: (i) make any press release with respect to
this Agreement or your participation in the Program, (ii) create, publish, distribute
or permit any written or electronically transmitted publicity material that refers
to your participation in the Program, or (iii) express or imply any relationship
between us and you or any other person or entity except as expressly permitted
by this Agreement (including by expressing or implying that MobileImage.com
supports, sponsors, endorses or contributes money to any charity or other cause).
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8. Use of Logos and Trademarks. If you are accepted as an Affiliate,
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) use our
logos, tradenames, trademarks and similar identifying material (collectively, the
"Licensed Materials"), but only in the forms in which we provide them to you and only
for the purpose of linking your site to our site. You may not alter, modify, or
change the Licensed Materials in any way. We represent and warrant that we are the
sole and exclusive owner of the Licensed Materials, that we have the right and power
to grant to us the above license, and that such grant does not and will not (i) breach,
conflict with or constitute a default under any agreement or other instrument,
or (ii) infringe upon any trademark, tradename, service mark, copyright, or other
proprietary right of any other person or entity.
If you are accepted as an Affiliate, you grant us a non-exclusive, non-transferable,
revocable license to use your names, titles, logos, trademarks, trade names and
service marks (collectively the "Affiliate Trademarks") to advertise, market, promote
and publicize the Program and your participation in the Program. We will not be required
to use the Affiliate Trademarks or to advertise, market, promote or publicize you or
your site. You represent and warrant that you are the sole and exclusive owner of the
Affiliate Trademarks, that you have the right and power to grant to us the above license,
and that such grant does not and will not (i) breach, conflict with or constitute a default
under any agreement or other instrument, or (ii) infringe upon any trademark, tradename,
service mark, copyright, or other proprietary right of any other person or entity.
We both agree not to use the other's proprietary materials in any manner that is
disparaging, misleading, obscene or that otherwise portrays the other in a negative
light. We both reserve all of our rights in the proprietary materials covered by
the above licenses. Other than rights granted under such licenses, we both retain
all right, title, and interest to our respective proprietary materials and transfer
no right, title, or interest in such materials to the other.
From time to time we may provide you with Links containing names, logos, trademarks,
trade names, service marks, or other materials owned by third parties (the "Third Party
Materials"). Since the Third Party Materials remain the property of their owners, we
cannot confer upon you any rights in such Materials. You may not alter or modify any
Third Party Materials or use them in any way that we have not specifically approved.
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9. Indemnification. You will be solely responsible for the development,
operation, and maintenance of your site and for all materials that appear on your site;
we disclaim all liability for these matters. Further, you agree to indemnify, defend
and hold harmless MobileImage.com and its shareholders, officers, directors, employees,
agents, affiliates, successors and assigns, from and against all actual or threatened
claims, losses, liabilities, damages, suits, actions or expenses (including attorneys'
fees and costs) relating to your performance under this Agreement and the development,
operation, maintenance and contents of your site.
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10. Term and Termination. The term of this Agreement begins upon
our acceptance of your Program application and ends when terminated by either party
("Term"). Either party may terminate this Agreement at any time, with or without cause,
by giving the other written notice of termination via mail, email or fax. If we terminate
this Agreement because you have committed a material breach, we may withhold Fees
payable to you in an amount equal to the amount by which we believe in good faith that
we have been damaged by your breach, including prospective damages and damages resulting
from claims by third-parties caused by such breach. If this Agreement is terminated
on any other basis, you will be entitled to: (i) Commissions on Product sales for
which we have received all amounts due during the Term, provided that the Products
are not returned. We may withhold your final payment for a reasonable time to ensure
that the correct amount is paid. All licenses granted herein terminate immediately
and automatically upon termination of this Agreement, and the licensee of any subject
matter must immediately cease use of any licensed materials. You agree to remove all
Links and to cease your use or display of the Licensed Materials and Third Party Materials
immediately upon the termination of this Agreement.
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11. Modification. We may modify any of the terms and conditions
contained in this Agreement (including but not limited to Fees payable), at any time
and in our sole discretion, by posting a change notice or a new agreement on our site.
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 SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE
OF THE CHANGE.
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12. Limitation of Liability. WE WILL NOT BE LIABLE FOR INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS, OR DATA)
RELATING TO 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 REFERRAL FEES PAID OR PAYABLE TO YOU UNDER THIS
AGREEMENT.
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13. Disclaimers. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS. TO THE FULL EXTENT
PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING OUT OF COURSE OF PERFORMANCE, COURSE
OF DEALING OR USAGE OF TRADE. IN ADDITION, WE MAKE NO REPRESENTATION OR WARRANTY THAT
THE LINKS, THE OPERATION OF OUR SITE, OR BEFREE'S PROCEDURES AND SYSTEMS FOR TRACKING
SALES GENERATED BY YOUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE. WE WILL NOT BE LIABLE
FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
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14. Acknowledgments. YOU ACKNOWLEDGE THAT: (I) YOU HAVE READ THIS
AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS, (II) WE MAY AT ANY TIME (DIRECTLY OR
INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN
THIS AGREEMENT, (III) WE MAY OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR
WEB SITE, (IV) YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN
THE PROGRAM, AND (V) YOU ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT
OTHER THAN AS SET FORTH IN THIS AGREEMENT.
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15. General Provisions.
Governing Law. This Agreement will be governed by the laws of the United States
and the State of Texas, 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
McKinney, Texas, and you irrevocably consent to the jurisdiction of such courts.
Assignment. 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.
Entire Agreement. This Agreement is the entire Agreement between the parties with
respect to its subject matter, and it supersedes all prior agreements, representations
and understandings, whether express or implied and whether oral or written.
Relationship of Parties. 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 us. You will have no authority to
make or accept any offers or representations on our behalf or to legally bind us in
any way.
Waiver. 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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I AGREE
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