AFFILIATE PROGRAM AGREEMENT
This Affiliate Program Agreement ("Agreement") contains the complete terms and conditions for your participation in THE POPCORN FACTORY, INC. Affiliate Program. THE POPCORN FACTORY web site is "www.thepopcornfactory.com"(the "Web Site"). You may also be referred to herein as "PARTICIPANT", "You" or "Party". THE POPCORN FACTORY, INC. may also be referred to as "THE POPCORN FACTORY", "We" or "Us".
1.The Affiliate Program:
(a) We will make available a variety of pre-approved graphic, product, textual and other links as determined by THE POPCORN FACTORY, INC. (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions of this Agreement, you may display on web site as you desire. You agree that you will display on your Web Site only those Links that are pre-approved and provided to you by THE POPCORN FACTORY, INC. through the Impact Radius.
(b) Your participation in THE POPCORN FACTORY affiliate program IS CONDITIONED UPON YOUR ACCEPTANCE OF ALL THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. BY SELECTING THE "ACCEPT" BUTTON AT THE BOTTOM OF THE ONLINE APPLICATION, YOU ARE ENTERING INTO A LEGAL AGREEMENT WITH THE POPCORN FACTORY, FORMALLY INDICATING YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT SELECT THE "ACCEPT " BUTTON AT THE BOTTOM OF THE ONLINE APPLICATION.
(b) PARTICIPANT is only eligible to earn commissions on sales which are completed during the term of this Agreement, and commissions earned through the date of termination will be payable only if the related purchases are not canceled, credited, refunded or returned. THE POPCORN FACTORY, INC. may withhold PARTICIPANT'S final payment for a reasonable time to ensure that the correct amount is paid.
3. Commissions & Offers:
(a) From time to time, we may post on the Impact Radius offers (each, an "Offer") to pay to other participants a specified commission in return for certain advertising services leading to a Qualifying Link. If you accept one of our Offers, we will have entered into an "Engagement." Each Engagement shall have the same identification number as the original Offer that lead to the Engagement and shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Engagement and the terms of this Agreement, the terms of the Engagement shall govern. At any time prior to You displaying a Qualifying Link on one of Your websites, Advertiser may, with or without notice (a) change, suspend or discontinue any aspect of an Offer or an Engagement or (b) remove, alter, or modify any graphic or banner ad that we have submitted for an Offer or an Engagement. You agree to promptly implement any request from us to remove, alter or modify any such graphic or banner ad.
(b) For products that are purchased and are subject to the Engagement by consumers via ?Qualifying Link? utilizing a promotion(s) approved by THE POPCORN FACTORY, INC. and for which THE POPCORN FACTORY, INC. has delivered the ordered products and received full payment (each a "Qualifying Purchase(s)"), PARTICIPANT will receive commissions which will be based on "Net Sales" of Qualifying Purchase(s): based upon the accepted Offer of a specified commission for which we have entered into an Engagement with you through the Impact Radius. "Net Sales" is defined as the gross sales price of a Qualifying Purchase less taxes, service charge, shipping, relay and handling charges, discounts, gift certificates, promotional offers (e.g., airline miles, points, e-money etc.), credit card processing fees, credits, refunds, rebates and chargebacks. We may, within our sole discretion, make offers available to you through The Impact Radius from time to time; which offers may be changed, suspended or discontinued by THE POPCORN FACTORY, INC. at any time without notice. A ?Qualifying Link? is a direct link, or the last link, from your web site to our Web Site using one of the required URLs or any other URL provided by us for use in the Impact Radius that the customer uses during a Session where the sale of a Qualifying purchase has been made. A ?Session? is the period of time beginning from the customer?s initial contact with our Web Site via a direct link or last link from your web site and terminating when the customer either returns to our Web Site via a link from a site other than your Web Site or the engagement expires or is terminated. PARTICIPANTS are responsible for inserting a tracking code in the manner designated by THE POPCORN FACTORY, INC. to ensure accurate tracking of Qualifying Purchases.
4. Legal Compliance; Representations and Warranties:
5. Maintenance; Representations and Warranties:
(a) PARTICIPANT shall monitor and periodically test the general availability and operation of its web site. PARTICIPANT represents and warrants that its web site will perform adequately so that customers will be able to shop for THE POPCORN FACTORY, INC.'s products.
(b) PARTICIPANT is solely responsible for the development, operation and maintenance of its web site and for all materials and content that appear on PARTICIPANT'S web site. Such responsibilities include, but are not limited to, the technical operation of PARTICIPANT'S web site and all related equipment; the accuracy and propriety of all materials and content posted on PARTICIPANT'S web site; and ensuring that materials and content posted on its web site will not (i) violate any laws, rules or regulations; (ii) violate or infringe upon the rights of any third party including, without limitation, copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (iii) be lewd, pornographic, sexually explicit, or obscene; (iv) violate any laws regarding unfair competition, anti-discrimination or false advertising; (v) promote violence or contain hate speech, (vi) contain viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious program routines; or (vii) be libelous, harmful, threatening, abusive, harassing, defamatory, derogatory or otherwise illegal or objectionable to THE POPCORN FACTORY, INC.; (viii) be a homepage or a personal website created through free web space offered by third parties; (ix) use or promote promotion codes, coupon codes or any discount offers unless specifically authorized by THE POPCORN FACTORY, INC.; (x) contain promotional materials about THE POPCORN FACTORY, INC. or the Affiliate Program unless specifically authorized by THE POPCORN FACTORY, INC. . PARTICIPANT shall not (a) include any of the Marks as defined in Section 8, or variations or misspellings thereof in any of Participant's domain names or any metatags; (b) send any emails or other promotional or marketing materials which mention THE POPCORN FACTORY, INC., the Affiliate Program or the Web Site without the prior written consent of THE POPCORN FACTORY, INC.; (c) shall not make any press releases or other public statements regarding the Affiliate Program or THE POPCORN FACTORY, INC. or the Web Site without first obtaining the express written approval THE POPCORN FACTORY, INC.; (d) take any action that could reasonably cause any customer confusion as to our relationship with You, or as to the web site on which any functions or transactions (e.g., search, order, browse, etc.) are occurring; and (e) post or serve any advertisements or promotional content around or in conjunction with the display of the Web Site (e.g., through any "framing" technique or technology or pop-up windows. PARTICIPANT understands that the use of unsolicited commercial e-mail ("spam") by PARTICIPANT and its agents is absolutely prohibited. Your participation the 1-800-Affiliate Program constitutes your specific and unconditional agreement to abide this anti-spam policy.
(c) THE POPCORN FACTORY, INC. disclaims all liability for all matters set forth in Section 4 and 5(b). Further, PARTICIPANT will indemnify and hold THE POPCORN FACTORY, INC., its parent company, subsidiaries, affiliates and their respective officers, directors, shareholders and employees free and harmless against and from all claims, damages, losses, liabilities and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of PARTICIPANT'S web site.
(d) THE POPCORN FACTORY, INC. reserves the right, in its sole discretion, to monitor PARTICIPANT'S Web Site, at any time and from time to time, to ascertain whether PARTICIPANT is in compliance with the terms of this Agreement.
THE POPCORN FACTORY, INC. will fulfill all fully paid orders for products in accordance with THE POPCORN FACTORY, INC.'s customary business practices. THE POPCORN FACTORY, INC. shall be solely responsible for fulfilling all orders placed by a customer as a direct result of the Links. THE POPCORN FACTORY, INC.'s products offered through the Links will be supported by the same favorable warranty and return policy for such products as offered through other THE POPCORN FACTORY, INC.'s channels. Customers who purchase through the Affiliate Program are deemed to be customers of THE POPCORN FACTORY, INC. Accordingly, all of THE POPCORN FACTORY, INC.'s rules, policies, and operating procedures concerning customer orders, customer service, and use of customer names and information, will apply to those customers.
(a) Except for the pre-approved promotional and advertising content that we provide or make available to you, any and all promotional or advertising activities you may wish to engage in require the prior written consent of THE POPCORN FACTORY, INC., in each instance. PARTICIPANT shall not create, publish, distribute, or permit any written material, including, without limitation, promotion codes, coupons and discount offers that make reference to THE POPCORN FACTORY, INC. and/or its parent company, subsidiaries, affiliates and their respective web sites without first submitting such material to THE POPCORN FACTORY, INC. and receiving prior written consent thereto. When engaging in any direct promotional or advertising activities with consumers, PARTICIPANT shall (a) identify Participant's complete name and physical postal address, (b) clearly, conspicuously, and truthfully indicate the nature of the communication, (c) provide a reasonable method by which consumers can eliminate or limit ("opt-out") of such communications, (d) timely and in accordance with applicable laws, honor consumer requests to "opt-out" of such communications, (e) maintain reasonable records with regard to such "opt-out" requests, and (f) do not sell, rent, share, transfer, or disclose any personal information regarding consumers who "opt-out" except to process their orders and requests.
(b) PARTICIPANT WILL REPRESENT THEMSELVES ON SEARCH ENGINE RESULTS FOR RELATED LISTINGS ONLY AS "AFFILIATE OF THE POPCORN FACTORY". THAT WITHOUT LIMITING THE FOREGOING, PARTICIPANT SHALL NOT PURCHASE, USE OR BID FOR PLACEMENT ANY OF THE MARKS, AS DEFINED IN SECTION 8, WHICH INCLUDE WITHOUT LIMITATION, THE POPCORN FACTORY, OR ANY VARIATIONS, MISSPELLINGS, DERIVATIVES, ALTERNATE SPELLINGS, ALTERNATE SPACING OF THE MARKS OR ANY PHRASES THAT INCLUDE THE MARKS, WITH ANY SEARCH ENGINE. INCLUDING:
* The Popcorn Factory
* Popcorn Factory
* The Popcorn Factory Coupon(s)
* The Popcorn Factory Promo Code(s)
* Popcorn Factory Free Ship(ping)
PARTICIPANT SHALL NOT CHALLENGE, REGISTER OR SEEK TO REGISTER OUR MARKS OR ANY TERM(S) WHICH ARE CONFUSINGLY SIMILAR TO OUR MARKS. Furthermore, THE POPCORN FACTORY, INC., hereby reserves all legal and equitable remedies it may have for Participant's violation of Sections 7(b) and 8 and for any misuse or infringement of the Marks by Participant.
(c) PARTICPANT shall not, in any manner, misrepresent or embellish the relationship between PARTICIPANT and THE POPCORN FACTORY, INC. or expressly or imply any relationship or affiliation between us and You or any other person or entity except as expressly permitted by this Agreement (including by expressly or implying that THE POPCORN FACTORY, INC. supports, endorses, or contributes money to any charity or other cause).
(d) Software applications: PARTICIPANT in utilizing software applications (e.g. TopMoxie etc) will comply with all provisions of this Agreement. In addition PARTICIPANT will only receive credit for those transactions generated by users after clicking the software applications messaging window on the user's screen. Credit will not be given for transactions on www.thepopcornfactory.com that are generated through internet locations where the software applications have been downloaded but the user has not clicked on the applications messaging window prior to purchase.
PARTICIPANT will ensure that the applications it uses to promote THE POPCORN FACTORY, INC. will not do so on pages that are displayed on users screens through Tracking URL's generated using the Impact Radius system and/ or containing "impactradius.com".
(a) THE POPCORN FACTORY, INC. grants to PARTICIPANT a limited, non-exclusive, non-transferable, royalty-free, revocable license to (i) access the Web Site through the Links solely in accordance with the terms of this Agreement and (ii) solely in connection with such Links, to use THE POPCORN FACTORY, INC.'s logos, trade name, trademarks, service marks and similar identifying material (collectively the "Marks"), for the sole purpose of selling Products for THE POPCORN FACTORY, INC.. You may not alter, modify, amend, or change the Marks in any way. You are entitled to use the Marks to the extent that this Agreement provides and only while this Agreement remains in full force and effect.
(b) PARTICIPANT shall not make any specific use of any Marks for purposes other than selling THE POPCORN FACTORY, INC.'s products for THE POPCORN FACTORY, INC. PARTICIPANT agrees not to use the Marks in any manner that is disparaging or otherwise portrays THE POPCORN FACTORY, INC. in a negative light. THE POPCORN FACTORY, INC. reserves all of its rights in the Marks and all of its other proprietary rights. No right, property, license or interest in any Marks is intended to be given to or acquired by PARTICIPANT by the execution or the performance of this Agreement. THE POPCORN FACTORY, INC. may revoke this license at any time, by giving you written notice. PARTICIPANT may not alter, modify, or change the Marks in any way. All goodwill arising from the use of the Marks shall inure solely to the benefit of THE POPCORN FACTORY, INC. and its parent, subsidiary or affiliated companies, as applicable.
(c) All intellectual and proprietary property and information, supplied or developed by THE POPCORN FACTORY, INC. shall be and remain the sole and exclusive property of THE POPCORN FACTORY, INC. Upon termination of this Agreement, PARTICIPANT shall immediately cease using and return to THE POPCORN FACTORY, INC. any and all such property and information it receives from THE POPCORN FACTORY, INC. and, without limiting the foregoing, immediately cease use of THE POPCORN FACTORY, INC.'s Marks. Participant agrees not to contest or challenge the Marks or to use any confusingly similar marks.
(d) PARTICIPANT grants to THE POPCORN FACTORY, INC. a non-exclusive, non-transferable, royalty-free license to access the PARTICIPANT web site through the Links; and (ii) use PARTICIPANT'S trade name, titles, logos, trademarks, service marks, products and similar identifying material relating to PARTICIPANT (the "PARTICIPANT'S Marks"), to advertise, market, promote and publicize in any manner this Agreement, the transactions contemplated hereunder or THE POPCORN FACTORY, INC.'s rights hereunder; provided, however, that THE POPCORN FACTORY, INC. shall not be required to advertise, market, promote or publicize, in any manner, this Agreement, the transactions contemplated hereunder, or PARTICIPANT'S Marks.
Pursuant to this Agreement, the Parties may disclose to one another certain information ("Information") which is considered by the disclosing party to be proprietary or confidential information, including, without limitation, the term of this Agreement, business, marketing and financial information, customer and vendor lists, and pricing and sales information. All such Information shall remain the sole property of the disclosing party, and its confidentiality shall be maintained and protected by the receiving party with the same degree of care as the receiving party uses for its own confidential and proprietary Information and the receiving party shall not disclose such Information to any third party without the prior written consent of the disclosing party. The restrictions of the use or disclosure of any Information shall not apply to any information: (i) after it has become generally available to the public without breach of this agreement by the receiving party; (ii) is independently developed by receiving party; (iii) is rightfully in the receiving party's possession prior to disclosure to it by the disclosing party; (iv) is rightfully received by receiving party from a third party without duty of confidentiality; or (v) is disclosed under operation of law or pursuant to legal or regulatory process.
10. LIABILITY: NEITHER THE POPCORN FACTORY, INC. NOR ITS PARENT COMPANY, SUBSIDIARIES, OR ITS AFFILIATED COMPANIES SHALL HAVE ANY LIABILITY HEREUNDER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT OR BUSINESS OPPORTUNITIES, WHETHER OR NOT THE POPCORN FACTORYRS.COM,INC. KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGE MIGHT BE INCURRED. FURTHERMORE, THE POPCORN FACTORY, INC.'S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREUNDER WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF RECOVERY SHALL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO PARTICIPANT UNDER THIS AGREEMENT.
PARTICIPANT agrees to indemnify, defend and hold harmless THE POPCORN FACTORY, INC., its parent company, subsidiaries, affiliated companies, successors and assigns and their respective officers, directors, shareholders and employees, from and against any and all losses, liabilities, damages, actions, claims, expenses and costs including, without limitation, reasonable attorneys' fees, which result or arise from or are based on (i) the negligence of PARTICIPANT, its agents, servants and/or employees, (ii) PARTICIPANT'S breach of this Agreement or any of the terms hereunder, (iii) any breach of a representation or warranty, or breach of a covenant or agreement made by PARTICIPANT herein, or in the Enrollment Application, (iv) any claim that THE POPCORN FACTORY, INC.'s use of PARTICIPANT'S Marks infringe on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, or (v) any claim related, in any way, to PARTICIPANT'S web site, including, without limitation, content therein not contributed directly by THE POPCORN FACTORY, INC, as well as, any and all promotional and advertising activities conducted by, or on the behalf of, PARTICIPANT.
12. Independent Parties:
Nothing contained herein shall imply any partnership, joint venture or agency relationship between the Parties and neither Party shall have the power to obligate or bind the other in any manner whatsoever, except to the extent herein specifically provided.
13. Binding Effect; Benefit:
This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any person or entity other than the Parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
If any provision of this Agreement shall be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement shall not be affected and shall remain in full force and effect.
Any notices required or permitted under this Agreement shall be sent electronically to you at your web site or the email address as provided in the Impact Radius and shall be deemed duly made and received when sent.
16. Force Majeure:
Except as otherwise expressly provided in this Agreement, THE POPCORN FACTORY, INC. shall not be liable for any breach of this Agreement or for any delay or failure of performance resulting from any cause beyond such Party's reasonable control, including without limitation, the weather, strikes or labor disputes, war, terrorist acts, riots or civil disturbances, government regulations, acts of civil or military authorities, or acts of God.
17. Entire Agreement:
This Agreement constitutes (a) the binding agreement between the Parties; (b) represents the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements; and (c) may not be modified or amended except in a writing signed by the Parties. Notwithstanding anything to the contrary contained herein, THE POPCORN FACTORY, INC. may modify and change any of the terms and conditions of this Agreement, at any time in its sole discretion. We will notify You of any such modification or change as provided for in Section 2 (a) hereof. Modifications and changes may include, without limitation, changes in the scope of available commission fees and payment procedures. If any modification or change is unacceptable to PARTICIPANT, PARTICIPANT'S only recourse is to terminate this Agreement. Your continued participation in the Program after the notice is posted or sent pursuant to Section 2(a) hereof, will constitute legally binding acceptance of the modification or change.
18. Governing Law & Venue:
This Agreement shall be construed, governed by, and enforced in accordance with the laws of the State of New York without regard to conflicts of law principles thereof. In the event of any dispute arising out of, or related to this Agreement, the parties agree they shall commenced and maintained any and all claims, actions and proceedings regarding said disputes in the applicable federal district or state court sitting in Nassau/Suffolk counties, New York and the parties irrevocably consent to the exclusive jurisdiction and venue of said courts.
19. Waiver of Jury Trial:
IN ANY CLAIM, ACTION OR PROCEEDING, THE PARTIES ACKNOWLEDGE AND AGREE THAT SAME SHALL BE HEARD BY THE COURT SITTING WITHOUT A JURY AND THE PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A JURY TRIAL.
20. INDEPENDENT INVESTIGATION:
PARTICIPANT ACKNOWLEDGES THAT THEY HAV READ THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS. PARTICIPANT UNDERSTANDS THAT THE POPCORN FACTORY, INC. MAY AT ANY TIME, DIRECTLY OR INDIRECTLY, SOLICIT CUSTOMER REFERRALS AND ENTER INTO SIMILAR AGREEMENTS ON TERMS THAT MAY BE THE SAME, SIMILAR OR DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR ENTER INTO AN AGREEMENT WITH COMPETITORS OF PARTICIPANT, OR MAY OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH PARTICIPANT'S WEB SITE. PARTICIPANT HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE TRANSACTIONS CONTEMPLATED HEREUNDER AND IT IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
21. NO GUARANTEE:
THE POPCORN FACTORY, INC. MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH REFERENCE TO THE TRANSACTIONS AND SERVICES CONTEMPLATED HEREUNDER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF PERFORMANCE, DEALING, OR TRADE USAGE. IN ADDITION, THE POPCORN FACTORY, INC. MAKES NO REPRESENTATION THAT THE OPERATION OF THE POPCORN FACTORY, INC.'s WEB SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND THE POPCORN FACTORY, INC. WILL NOT BE LIABLE FOR ANY CONSEQUENCES WHATSOEVER OF ANY INTERRUPTIONS OR ERRORS. FURTHERMORE, THE POPCORN FACTORY, INC.
Sections 4, 5, 6, the last two sentences of Section 7, 8(c), 10, 11, 18, 19, 20 and 21 of this Agreement shall survive the termination or expiration of this Agreement.
22. Impact Radius Required Provisions
(a) Each party jointly and severally agrees to indemnify, defend, and hold
harmless Impact Radius Corporation and its publishers, officers, directors,
employees and agents (collectively, "Impact Radius") from and against any and all
liability, claims, losses, damages, injuries or expenses (including reasonable
attorneys' fees) directly or indirectly arising from or relating to any Offer,
Engagement, any other matter related to this Agreement or the subject matter
hereof any dispute relating thereto.
(b) The parties agree that Impact Radius may rely on any data, notice,
instruction or request furnished to Impact Radius by either party which is
reasonably believed by Impact Radius to be genuine and to have been sent or
presented by a person reasonably believed by Impact Radius to be authorized to act
on behalf of one of the parties. In the event of any dispute between the
parties, the parties agree that to the extent the parties contact and involve
Impact Radius, Impact Radius may consult with and use counsel of its own choice in
connection with such dispute and the reasonable fees and disbursements of
Impact Radius's counsel shall be within the costs and disbursements covered by the
indemnity specified in Section 8.1 above.
In the home of popcorn, for over 30 years, The Popcorn Factory has been enchanting customers with delicious, premium popcorn and impressive gourmet gifts.