Version Date: [05/30/2016]
This Affiliate Agreement (this “Affiliate Agreement”) between you (“Affiliate” or “you”) and Hot Pixel, LLC (“Company” or “we” or “us”) governs your participation in Company’s affiliate program (the “Program”). Company’s website is located at www.lifepixel.com (the “Company Website”). This Affiliate Agreement is in addition to our Terms of Use and Privacy Policy (both accessible through the Company Website), which documents are incorporated herein.
YOU ARE ENTITLED TO PARTICIPATE IN THE PROGRAM ON CONDITION THAT YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AFFILIATE AGREEMENT. IF YOU DO NOT AGREE TO ACCEPT AND ABIDE BY THIS AFFILIATE AGREEMENT, YOU SHOULD NOT PARTICIPATE IN THE PROGRAM.
In the event of any inconsistency between this Affiliate Agreement and the Terms of Use, the terms of this Affiliate Agreement shall govern.
Company reserves the right, in its discretion, to change, terminate or modify all or any part of the Program or this Affiliate Agreement at any time, effective 30 days after notice to you via email or via other contact information contained in your account settings or by posting a new version of this Affiliate Agreement on the Company Website. Your continued participation in the Program after such notice constitutes your binding acceptance of the terms and conditions in this Affiliate Agreement, including any changes or modifications made by Company as permitted above. If at any time the terms and conditions of this Affiliate Agreement are no longer acceptable to you, you should immediately cease participation in the Program.
Links; Promotions
As part of the Program, we will make available to you a graphic image or text link that identifies your website as a Program participant (the “Link”). The Link will link visitors back to the Company Website, where visitors will be able to purchase our digital infrared conversion services and related product offering (collectively, the “Products”). You must prominently display the Link on your website. We may require you to modify the Link from time to time. We grant you a nonexclusive, nontransferable, revocable right to use the Link solely for the purpose of identifying your website as a Program participant and to assist in generating Product sales. You may not modify the Link in any way. We reserve all of our rights in the Link, any other images, our trade names and trademarks, and all other intellectual property rights. You agree to comply with Company’s published trademark guidelines made available from time to time. We may revoke your license at any time by giving you written notice via email or other contact information contained in your account settings.
You also agree not to use the Links in any manner that could damage, disable, overburden, or impair the Company Website or any other site, create spam or any other unwanted solicitation, or interfere with any other party’s use and enjoyment of the Company Website, their own website or other location of Links. You agree that you will not paste, copy or otherwise impose the Company Website graphic images or Links anywhere without the consent of Company. You agree not to use any of our trademarks or intellectual property or make any representations, warranties or other statements concerning Company, the Company Website or any of our Products, services or policies, except as detailed in this Affiliate Agreement.
You agree to make reasonable commercial efforts to promote the sale of the Products and the Company Website. You agree that you will comply with all applicable laws and regulations in promoting your website and the Company Website. You may not include price information in your descriptions of the Company Website, because our prices may change from time to time. You may not make any press release with respect to this Affiliate Agreement or your participation in the Program.
Referral Fees
For each Successful Referral (defined below) Company will pay to you a referral fee (the “Referral Fee”) of 5% of the net amounts (defined below) received from purchases of Products made by referred users through the Company Website. The “net amounts” means the gross amount of payments received from the purchase of Products less amounts charged for shipping, handling, packaging, insurance, and sales or similar taxes, refunds, credits, payment processing charges, and reversals. The Referral Fee rate is subject to change at any time or from time to time, in our sole and absolute discretion. You will be notified of any change in the Referral Fee in the manner indicated above for modifications to this Affiliate Agreement. No Referral Fee will be payable or paid if the referred user to the Company Website cannot be tracked by Company’s system.
A “Successful Referral” is one that we determine satisfies each of the following criteria:
– the referred user must not be a current or past customer of Company;
– there must be a bona fide purchase by the referred user of Products for which payment is received by Company and is not reversed or otherwise set aside as a potentially false transaction;
– the referred user must reach the Company Website by clicking on a Link received by you through the Program, and not be a result of you creating spam or doing anything that would bring the Program or Company into any kind of disrepute;
– the referred user must have cookies enabled on their browser when clicking on your link to the Company Website, when reaching the Company Website, when completing the registration, and when purchasing Products (otherwise we cannot track it);
– when coming to the Company Website and making the required purchase, the referred user must still have the cookie enabled that was placed on their computer when clicking on your website link to the Company Website; and
– the purchase must be within 7 days of clicking the Link and it must be an online purchase and payment (phone and mail orders will not qualify). Our cookies are automatically deleted after this 7 day period.
Note that if a user previously visited the Company Website via the Link on your website and then later returns to the Company Website via a link from another party’s website, then Referral Fees will be paid to the party which most recently referred the user.
Payments; Reports
Company will make payment of Referral Fees to a third party payment account (PayPal), other payment method as determined by Company from time to time. Payments are made once per month for the month prior to last in order to allow time for returns, changes and order cancellations. You must have a minimum of a $0.01 account balance before we will make a payment to you. All payments will be in U.S. dollars. In all cases, payment of Referral Fees to the Affiliate will be net of: (i) applicable taxes or other withholdings required by applicable law; (ii) bad debts or other uncollectible sums; (iii) legal and other reasonable fees incurred in enforcing this Affiliate Agreement; (iv) fees payable to financial institutions for the processing of any credit card, debit card, e-check or alternative payment method; and (v) any amounts owing by the Affiliate to Company under this Affiliate Agreement or otherwise. Without limiting the generality of the foregoing, Company is entitled to set-off against any amount owing to Affiliate, all amounts to which Company is or may be entitled under this Affiliate Agreement or otherwise at law, including withholding amounts as security for any pending or threatened claim relating to any matter which is the subject of a representation, warranty or indemnity of Affiliate under this Affiliate Agreement. If Products that generated a Referral Fee are returned by the customer, we will deduct the corresponding Referral Fee from your next payment. If there is no subsequent payment, we will send you a bill for the fee, which bill must be paid upon receipt.
We will track the volume and amount of sales generated by you and will make unaudited reports, summarizing this sales activity available to you through the Program in your account. Through your account, you can check your sales, traffic, account balance and see how your Links are performing. To permit accurate tracking, reporting, and fee accrual, you must ensure that Links between your website and the Company Website are properly formatted.
Representations and Warranties
The Affiliate hereby represents and warrants that your website will not: (1) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (2) promote illegal activities, (3) promote violence, (4) promote sexually explicit materials, (5) promote materials that violate intellectual property rights, including Company’s intellectual property rights, (6) contain material that is libelous, slanderous, or violates any persons right to privacy or publicity, or (7) include in the site’s URL “LifePixel” or “HotPixel” or any other trademark of ours or our affiliates, or variations of misspellings of any of such trademarks.
Independent Contractor
Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect. Nothing in this Affiliate Agreement will constitute or be construed as constituting or tending to create an agency, partnership or employer/employee relationship between you and us.
Indemnity
You agree to indemnify, defend and hold Company and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Artwork (collectively, the “Company Parties”) harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees) incurred by any Company Party as a result of or in connection with: (i) any claim related to your website, or (ii) any breach by you of this Affiliate Agreement. Affiliate shall not agree to any settlement or compromise that imposes any obligation or liability on a Company Party without such party’s prior written consent.
Term and Termination
This Affiliate Agreement is effective so long as you participate in the Program or until the Program is discontinued by Company, or until this Affiliate Agreement is terminated, whichever first occurs. The Program or any aspect of it or your participation in it can be discontinued by either you or Company at any time in your or our discretion upon notice. Notice by e-mail to your address in your account settings or via any other contact information contained in your accounts settings is considered sufficient notice for us to terminate this Affiliate Agreement. If this Affiliate Agreement is terminated because you have violated the terms of this Affiliate Agreement or if this Affiliate Agreement is terminated because your website violates any content restrictions set forth in the Section “Representations and Warranties”, you are not eligible to receive any Referral Fees, even for amounts earned prior to the date of termination. If this Affiliate Agreement is terminated for any other reason, you are only eligible to earn Referral Fees on sales occurring during the term of this Affiliate Agreement, and Referral Fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid by the referred user to us.
DISCLAIMER OF WARRANTIES
THE COMPANY WEBSITE, INCLUDING ANY CONTENT AND PRODUCTS CONTAINED THEREIN, IS PROVIDED BY COMPANY “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT REPRESENT OR WARRANT THAT OPERATION OF THE COMPANY WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE.
LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPANY OR ANY OF ITS AFFILIATES OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE (1) FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUE OR COMMISSIONS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AFFILIATE AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE COMPANY WEBSITE, THE PRODUCTS OR ANY PART THEREOF, ANY FAILURE OF TRACKING SYSTEMS, LOSS OF DATABASE FILES, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE OR (2) FOR AN AGGREGATE AMOUNT UNDER THIS AFFILIATE AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE COMPANY WEBSITE OR THE PRODUCTS IN ANY MANNER WHATSOEVER IN EXCESS OF THE REFERRAL FEES PAID BY COMPANY DURING THE PERIOD OF THREE (3) MONTHS PRIOR TO A CLAIM ARISING.
SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF COMPANY OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Age and Responsibility
You represent and warrant that you are of sufficient legal age to use the Company Website and to create binding legal obligations for any liability you may incur as a result of the use of the Company Website and your participation in the Program.
Applicable law; jurisdiction
All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to this Affiliate Agreement shall be governed and construed by the law of the State of Washington, excluding such state’s conflicts of law rules. Any legal action of whatever nature by or against Company arising out of or related in any respect to this Affiliate Agreement shall be brought solely in either the applicable federal or state courts located in or with jurisdiction over Snohomish County, Washington; subject, however, to the right of Company, at the Company’s sole discretion, to bring an action to seek injunctive relief to enforce this Affiliate Agreement or to stop or prevent an infringement of proprietary or other third party rights (or any similar cause of action) in any applicable court in any jurisdiction where jurisdiction exists with regard to the Affiliate. You hereby consent to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Affiliate Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Affiliate Agreement. In no event shall any claim, action or proceeding by you related in any way to this Affiliate Agreement be instituted more than two (2) years after the cause of action arose.
General
This Affiliate Agreement, and other documents referenced or incorporated herein, constitutes the entire agreement between you and Company regarding the scope of this Affiliate Agreement. You specifically agree and acknowledge that you have, in addition to the terms of this Affiliate Agreement, reviewed the terms of the Terms of Use, Privacy Policy and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Affiliate Agreement you agree to be bound by them. Company shall have no liability to Affiliate for any failure of Company to perform this Affiliate Agreement due to causes beyond Company’s reasonable control. Company’s failure to insist upon or enforce strict performance of any provision of this Affiliate Agreement shall not be construed as a waiver of any provision or right. This Affiliate Agreement is personal to you and is binding upon your heirs, executors and legal representatives, as the case may be, and is not assignable by you without Company’s prior written consent. Company may assign this Affiliate Agreement without your consent to any other party so long as such party agrees to be bound by its terms. If all or part of any provision of this Affiliate Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
Acknowledgement
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AFFILIATE AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND COMPANY REGARDING THE AFFILIATE PROGRAM, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND COMPANY RELATING TO THE SUBJECT OF THIS AFFILIATE AGREEMENT.
Hot Pixel, LLC
13024 Beverly Park Road
Suite 101
Mukilteo, WA 98275
Phone: 866-610-1710 ext 3
Email: info@lifepixel.com
