1. ENROLLMENT IN THE PROGRAM
To become a participant in the Program, you must properly complete a Program application and submit the application to us via our website, and we must accept your application. We will review all applications and will notify you of our decision in a timely manner. We will have the right to accept or reject your application at our sole discretion, with or without reason. Applications will not be accepted from any of our vendors or employees or from any applicant operating a website that contains any of the following: (i) speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise), or (ii) any unlawful behavior or conduct. If we reject your application, you are welcome to reapply to the Program at any time.
2. COMMISSION, DETERMINATION, AND PAYMENT
On a monthly basis in accordance with Section 3 below, we agree to pay you commissions in accordance with the table set forth below on Purchase Amounts derived from Affiliate-Generated Purchases. An "Affiliate-Generated Purchase" occurs when a customer follows a properly coded Link (as defined below) from your site to our site, selects and purchases a product from our site using our ordering system, accepts delivery of the product at the shipping destination, and remits full payment to us. An Affiliate-Generated Purchase may include any products that are added to a customer's "Shopping Cart" on our site after the customer has exited and reentered our site, provided the customer previously followed a properly coded Link from your site to our site within the last thirty (30) days before the Purchase. "Purchase Amount" means the gross sales of your Affiliate-Generated Purchases minus shipping charges, taxes, coupons or other discounts and product returns related to such gross sales. Our determinations of the commissions payable to you will be final and binding on you. We reserve the right to withhold commissions at our sole discretion if there is any evidence of suspicious activity on the part of the affiliate.
3. COMMISSION PAYMENT
We will pay your commission on a monthly basis. Approximately 30 days following the end of each calendar month we will send you a check, or credit your store account for the commission earned on the Purchase Amount for products that were shipped during that month. For example, you will be paid soon after March 1 for purchases shipped during January, and you will be paid on April 1 for purchases shipped during February, etc. Commissions will be paid in U.S. dollars with a check from a U.S. bank. If the commissions payable to you for any calendar month are less than $20.00, we will hold those commissions until the next calendar month if the commissions are to be paid in cash. Store credit will be applied each month regardless of the amount. Cash commissions will be held until the total exceeds $20.00, or until the affiliate relationship is terminated. If a product sale that generated a commission is returned by the customer, we will deduct the corresponding commission from your next monthly payment or, if there is no subsequent payment, we will send you a bill for the amount we overpaid you, which will be payable promptly upon receipt.
4. GRANT OF LIMITED LICENSE BY ENTERTAINMENT EARTH, LLC. TO AFFILIATE; PROMOTION OF AFFILIATE RELATIONSHIP
During the Term, you agree that you will place on your website one or more of the Promotion Tools approved by us and made available to you via our Program website, and you will code all Links to our website in the manner specified by us. During the Term of this agreement, we grant to you a nonexclusive, revocable, non-transferable, non-sublicenseable right and license to use within the United States (a) the Links for the sole purpose of displaying the Links on your website with the URL specified in your application in order to connect that site to our site and (b) our other names, marks or symbols (the "Licensed Materials") for the sole purpose of advertising, promoting or marketing your affiliate relationship with us. This agreement extends to websites under direct control, ownership, or management under the affiliate. Affiliates are forbidden from doing ad keyword bidding on any search engine or other site offering ad keywords. If any sales are found to have originated through a search service such as google.com, yahoo.com, or bing.com, those sales will be voided. Any violation will result in immediate termination.
Prior to using any of the Licensed Materials, you will submit to us for approval a draft of all proposed material that incorporates the Licensed Materials (e.g., publicity copy, artwork and layout), together with a brief statement setting forth the proposed use of such materials and any other background or supporting material reasonably requested by us to allow us to make an informed judgment. All such materials will be submitted to us at least ten (10) days prior to the date of first intended use. We will notify you of our approval or disapproval of such materials within five (5) business days of our receipt of all information required to be submitted. The approval or disapproval of such materials will be in our sole discretion. Any materials not receiving our specific written preliminary approval will be deemed disapproved.
You will use the Links and the Licensed Materials only in the exact form, style and type approved by us, and you will include with the Links and the Licensed Materials such copyright, trademark or other notices as may be required by law or requested by us. We will have the right to alter, modify or discontinue the use of any of the Links or the Licensed Materials or the form, style or type thereof at any time in our sole discretion.
In addition to the foregoing control measures, we may implement additional control measures to protect our intellectual property rights in the Links and the Licensed Materials, and you agree to cooperate with us in our efforts to protect such intellectual property rights. You further agree to maintain a level of quality in connection with your use of the Links and the Licensed Materials that is consistent with general industry standards, and you acknowledge that we will periodically monitor your use of the Links and the Licensed Materials to confirm your maintenance of such quality levels.
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 Materials granted to you hereunder. You further acknowledge that all proprietary rights in the Links and the Licensed Materials and the goodwill associated therewith are solely owned by and belong to us, and that all additional goodwill associated with the Links and the Licensed Materials created through their use by you will inure to our sole benefit. As between you and us, we will be considered the creator of the Links and the Licensed Materials, and all rights in the Links and the Licensed Materials will be our property. In addition, you hereby grant, assign and convey to us any and all rights you may now have or may be deemed to have in the future with respect to the Links and the Licensed Materials or any portion of them. You agree not to register or attempt to register any brand, names, marks, or other elements of the Links or the Licensed Materials as a trademark, service mark, Internet domain name, trade name, or any similar trademarks or name, with any domestic or foreign governmental or quasi-governmental authority which would be likely to cause confusion with any of the Links or the Licensed Materials. You agree not to commit any act that would cause any of the Links or the Licensed Materials to vest in the public domain anywhere in the United States or Canada. Other than as set forth in this agreement, you shall make no use of the Links or the Licensed Materials or of any designation confusingly similar to any of the Links or the Licensed Materials without our prior written consent.
You further agree that you will not have the right to, and you will not, (a) make any mention of the Entertainment Earth affiliate program on your site or social media unless accompanied by an approved Link to the Entertainment Earth site; (b) use the Links or the Licensed Materials in any manner that suggests an endorsement or validation of any product or service other than our site; (c) use the Links or the Licensed Materials in connection or association with any matter that falls within any of the categories listed in subclauses (i) through (ii) of Section 1 of this agreement; (d) use the Links or the Licensed Materials or any other names, marks, symbols, copyrights, logos, fanciful or other characters, designs, representations, figures, drawings, photographs, ideas or other proprietary designations or properties owned, developed, licensed or created by us, except as expressly permitted by this agreement; (e) use the Links or the Licensed Materials as your own property; or (f) use the Links or the Licensed Materials in connection with, in any manner or form, the names, marks, signs, symbols, products, services, logos or other proprietary designations or properties of any third parties. You further agree that you will not post, mail or distribute our coupons, gift certificates or other discount mechanisms in any way without first obtaining our written consent, nor will you in any way misrepresent our offers, policies or product availability.
You shall promptly report to us if you become aware of (a) any infringement of our intellectual property rights relating to the Links or the Licensed Materials by any third party, (b) any infringement by any such third party of any right granted under this agreement and (c) any unauthorized copying or distribution of the Links or the Licensed Materials or any component thereof by any third party.
5. OBLIGATIONS OF AFFILIATE
You agree that you will be solely responsible for, and that you will defend, indemnify and hold us and our officers, directors, agents, employees and representatives harmless from and against, any and all claims, suits, damages, losses, liabilities, obligations, penalties and expenses, including legal fees and expenses, relating to or based on the development, operation and maintenance of your site, including all materials that appear on your site; 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; the sale or offering for sale, use or consumption of any products on your site; and ensuring that materials posted on your site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal.
6. TERM OF THE AGREEMENT
The "Term" of this agreement will begin upon our acceptance of your Program application and will end on the date this agreement is terminated by either party. Either you or we may terminate this agreement at any time, with or without cause, by giving the other party two days' written notice (either via paper or email) of termination. Upon the termination of this agreement for any reason, you will immediately cease use of, and remove from your site, all Links and Licensed Materials and any other names, marks, symbols, copyrights, logos, fanciful or other characters, designs, representations, figures, drawings, photographs, ideas or other proprietary designations or properties owned, developed, licensed or created by us and/or provided by or on behalf of us to you pursuant to this agreement or in connection with the Program. You will not receive any commissions on product sales occurring following the end of the Term, and commissions earned through the end of the Term will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
7. 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 our site. Modifications may include, for example, changes in the commission schedule, the bonus payments, 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.
8. 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 commissions and bonuses paid or payable to you under this agreement.
9. DISCLAIMERS
We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a 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.
10. INDEPENDENT INVESTIGATION
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, HAVE HAD AN OPPORTUNITY TO CONSULT WITH YOUR OWN LEGAL ADVISORS IF YOU SO DESIRED, AND AGREE TO ALL THE TERMS AND CONDITIONS SET FORTH HEREIN. YOU AGREE THAT, IN INTERPRETING THIS AGREEMENT, NO WEIGHT SHALL BE PLACED UPON THE FACT THAT THIS AGREEMENT HAS BEEN DRAFTED BY US, AND YOU SHALL NOT ASSERT THAT THIS AGREEMENT IS UNENFORCEABLE OR INVALID ON THE GROUNDS THAT IT IS A CONTRACT OF ADHESION, THAT IT IS UNCONSCIONABLE OR ANY SIMILAR THEORY. 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.
11. MISCELLANEOUS
The provisions contained in this agreement constitute the entire agreement between the parties with respect to the subject matter of this agreement, and no statement or inducement with respect to such subject matter by any party which is not contained in this agreement shall be valid or binding between the parties.
You may not assign or transfer this agreement or any interest herein, nor shall the same be assignable by operation of law, without our prior written consent. For this purpose, "assignment" shall include any sale of a majority of the voting power of your capital stock or any merger, consolidation or other comparable transaction following which you are not the surviving corporation.
This agreement shall be governed by, and construed in accordance with, the laws of the State of California. Any legal proceeding of any nature brought by either party against the other to enforce any right or obligation under this agreement, or arising out of any matter pertaining to this agreement, shall be submitted for trial, without jury, before the federal or state courts located in the city of Los Angeles, California. The parties consent and submit to the jurisdiction of any such court and agree to accept service of process inside or outside the State of California in any matter to be submitted to any such court pursuant hereto.
No release, discharge or waiver of any provision of this agreement will be enforceable against or binding upon either party unless in writing and executed by the party granting such release, discharge or waiver. Neither the failure to insist upon strict performance of any of the agreements, terms, covenants or conditions hereof, nor the acceptance of monies due hereunder with knowledge of a breach of this agreement, shall be deemed a waiver of any rights or remedies that either party may have or a waiver of any subsequent breach or default in any of such agreements, terms, covenants and conditions.
If any term or provision of this agreement shall be found to be void or contrary to law, such term or provision shall, but only to the extent necessary to bring this agreement within the requirements of law, be deemed to be severable from the other terms and provisions hereof, and the remainder of this agreement shall be given effect as if the parties had not included the severed term herein.
As used in this agreement, "dollars" or "$" refers to United States dollars.
This agreement only applies to our entertainmentearth.com site and not to any other website operated by us.