This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Pacific Products Gallery Partners Program (the "Program"). As used in this Agreement, "we" means Pacific Products Gallery, and "you" means the applicant. "Site" means a World Wide Web site and, depending on the context, refers either to Pacific Products Gallery site located at the URL www.pacprod.com, or to any site that you will link to our site (and which you will identify in your Program application).
1. Enrollment in the Program: To begin the enrollment, you will submit a complete Program application via our site. We will evaluate your application in good faith and will notify you of its acceptance or rejection. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Program for any reason. Unsuitable sites include (but are not limited to) those that: Contain content that is unlawful, threatening, defamatory, obscene or otherwise objectionable; Promote sexually explicit materials; Promote violence; Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; Promote illegal activities; Violate or infringe upon intellectual property rights. If we reject your application, you are welcome to reapply to the Program at any time. If we accept your application, we reserve the right to terminate this Agreement if we ever determine (in our sole discretion) that your site is unsuitable for the Program for any reason.
2. Setting Up Links: We will make available to you banner advertisements, product links to our Web site and/or text links to our Web site, which you may display on your Web site, provided you abide by the terms and conditions of this Agreement. In using the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. All Partner Program Web sites shall display such graphic images prominently throughout your Web sites as you see fit and with our consent. A Link may only be modified and/or expanded with our consent. Each Link connecting users of your Web site to our Web site will in no way alter the look, feel or functionality of our Web site. We have the right, in our sole discretion, to monitor your Web site at any time and from time to time to determine if you are in compliance with the terms of this Agreement.
3. Order Processing: We will process orders placed by customers who follow the Links from your Web site to the Pacific Products Gallery Web site. We reserve the right, in our sole discretion, to reject orders that do not comply with any or all our requirements that we periodically may establish. All aspects of order processing and fulfillment, including order entry, customer service, cancellations, returns and payment processing will be our responsibility.
4. Sales Tracking: We will rely on the MyAffiliate Program Software to track sales made to customers generated by your Web site and will make available to you the sales activity, as well as reports regarding end-user impressions and click-trough's. You and we each agree to rely on, and not to challenge or dispute, the sales tracking and other information that My Affiliate Program Software complies in connection with the Program, which will bind both you and us for all purposes under this Agreement. Also, in order to permit accurate tracking, reporting, and fee accrual, you must ensure that the Links between your Web site and our Web site are properly formatted.
5. Payment: We will pay you 10% of the total sale, minus any freight (shipping) charges or discounts, for purchases made by customers which originate from links on your website. No commission will be paid for products that are returned, not paid for, or payment for which is credited to any customer. We will pay your commission on a monthly basis. Within approximately 15 days following the end of each month, we will send you a check for the commission earned on the products sold during the preceding month. If the commission payable to you for any month is less that fifty ($50.00) U.S. dollars, we will hold those commissions until such time as your commission earned equals at least fifty ($50.00) US dollars. If a product sale that generated commission is returned by the customer, we will deduct the corresponding commission from your next monthly payment. If no further payments are due under this Agreement, we reserve the right to send you a bill for any commissions associated with returned products. Pacific Products Gallery also retains the right to review all commissions for possible fraud. Any incidence of fraud constitutes a breach of this Agreement, and Pacific Products Gallery retains full authority to terminate this Agreement immediately.
6. Policies and Pricing: Partner Program participant acknowledges that Pacific Products, Inc. is the sole owner of all of Pacific Products Gallery (http://www.pacprod.com) services. Customers who buy products through the Affiliate Program are customers of Pacific Products Gallery. All Pacific Products Gallery rules, policies, and operating procedures concerning customer orders, customer service, and sales apply to these customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for items of products sold under the Partner Program in accordance with our own pricing policies and product prices and availability may vary from time to time. Because price changes may affect items that you already have listed on your Web site, you may not include price information in your descriptions. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular item of Products.
7. Non-Exclusive Limited License and Use of Pacific Products Gallery Logos and Trademarks: We grant you a non-transferable, non-exclusive, revocable license to (i) access our Web site through links established solely as set forth under the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, service marks and similar identifying material (collectively, "Licensed Materials"), solely for the purpose of selling products on your Web site. You are not permitted to alter, modify or change the Licensed Material in any way whatsoever. You may only use the Licensed Materials to the extent you are a member, in good standing, of the Affiliate Program. You may not use any Licensed Materials for purposes other than selling our products, without first submitting a sample of such use to us and receiving our prior written consent. You are not permitted to use the Licensed Materials in any manner that is disparaging or that otherwise portrays Pacific Products Gallery or anyone else negatively. We reserve all of our rights in the Licensed Materials and all other intellectual property rights. We may revoke your license at any time by written notice to you. You acknowledge that, except for the license expressly granted in this Agreement, you have not acquired and will not acquire any right, interest or title to the Links or the Licensed Materials by reason of this Agreement or through the exercise of any rights in the Links or the Licensed Material granted to you under this Agreement. This license shall terminate upon the effective date of the expiration or termination of this Agreement.
8. Obligations Regarding Your Web site: You will be solely responsible for the technical operation of your Web site and all related equipment; creating and posting product descriptions on your Web site and linking those descriptions to our Web site; the accuracy and appropriateness of materials posted on your Web site; for ensuring that materials posted on your Web site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy or other personal or proprietary rights); and for ensuring that materials posted on your Web site are not libelous or otherwise illegal. You agree that your Web site will not, in any way, copy or resemble the look and feel of our Web site nor will you create the impression that your Web site is our Web site or is a part of our Web site. You also agree that your Web site will not contain any content of our Web site or any materials which are proprietary to Pacific Products Gallery, except (i) with our prior permission, or (ii) materials obtained by you via the Pacific Products Gallery Partners Program Web site in accordance with the provisions hereof or the policies or instructions thereon. You further agree that your domain name does not and will not contain the word "pacprod" and/or "pacprod.com" or any variation thereof. We disclaim all liability for such matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorney's fees and expert witness fees) relating to the development, operation, maintenance, and contents of your Web site.
9. Indemnification: You hereby agree to indemnify, defend and hold harmless Pacific Products Gallery, its officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, losses, liabilities, damages or expenses (including attorneys' fees and costs) of any nature whatsoever incurred or suffered by us (collectively the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim or threatened claim that our use of the Partner Program Materials infringes on the rights of any third party; (ii) the breach of any representation or warranty made by you herein; or (iii) any claim related to your Web site.
10. Terms of the Agreement: The term of this Agreement will begin upon our acceptance of your Partner Program Application and will end when terminated by either party. Either you or we may terminate this Agreement at any time and for any reason by giving the other party written notice of termination, which may be via email but must be responded to with a reply, stating receipt, within 48 hours. Upon the termination of this Agreement for any reason, you will immediately cease using, and remove from your site, all links to our web site and all materials that we may have provided to you or allowed you to use in connection with the Pacific Products Gallery Partner Program, and we will immediately cease using, and remove from our site, all trademarks, logos, graphic images, text or other materials that you may provide to us or allow us to use. You are eligible to earn only those commissions that may accrue under paragraph 4 during the term of this agreement, and commissions earned through the date of termination will remain payable only if the customer does not cancel the order, return the products purchased or receive a refund or credit. We may withhold your payment for a reasonable time to ensure payment of the correct commission amount.
11. Modification: 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 this site. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures and Program rules. 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 BINDING ACCEPTANCE OF THE CHANGE.
12. Relationship of Parties: You and Pacific Products Gallery are independent contractors, and nothing in this Agreement will create any legal partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will (a) have no authority to make or accept any offers or representations on our behalf and (b) not make any statement, whether on your Web site or otherwise, that reasonably would contradict anything in this Section.
13. Disclaimers: WE MAKE NO IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM (INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NO INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE). IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE OR OUR COMMERCE SERVER WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQURNCES OF ANY INTERRUPTION OR ERRORS.
14. 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 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 to this Agreement.
15. 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 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 SET FORTH IN THIS AGREEMENT.
16. Miscellaneous: This Agreement shall 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 Ventura 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 be 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.