Affiliate Program Agreement

1. Agreement
This Affiliate Program Agreement (the "Agreement") contains the complete terms and conditions that apply to your participation as an affiliate in the Affiliate Program of, Inc. (the "Program") and the establishment of links from your affiliate Web site to our Web site. As used in this Agreement: "we" or "us" means, Inc.; "you" or "your" means the applicant or, upon acceptance of your application as provided in Section 2, the affiliate; "our site(s)" refers to the Web site(s); "your site(s)" refers to the Internet Web site(s) from which you will link to our site; "user" refers to a human customer (not a machine, script, device, robot, or automated service) who links from your site to our site; and "Product" or "Products" means any item offered for sale by us on the our site, and specifically does not include any items offered for sale by third parties on our site; “link” or “links” means a selectable URL associated with a text, graphic, search field, or other information object located on your site.

This is a legal agreement between you and us. By submitting a Program application you are affirmatively stating that you have carefully read and understand the terms set forth in this Agreement, accept the terms set forth in this Agreement and agree to be bound by the terms of this Agreement.

2. Program Enrollment
Before you can be enrolled in the Program, you must submit a complete Program application. We may reject your application if we determine (in our sole discretion) that your site is not compatible with our Program. We will notify you of your enrollment or rejection following our review of your application.

3. Links To Our Site
When you are accepted into the Program, we will provide you with links which you may place on your site and through which users of your site may access and use our site. You may display any of the links you choose, in any of the formats provided by us, on any or as many areas or pages of your site as you wish. We may modify the links we provide at any time. You must agree to update the link on your site accordingly. You may not modify the link provided. The position, prominence and nature of links on your site shall comply with any requirements specified in this Agreement but otherwise will be in your discretion.

4. Order Processing and Tracking
We will process product orders placed by customers who follow the link from your site to our site, although we may reject orders that do not comply with our requirements. We will be responsible for all aspects of order processing and fulfillment, including preparing order forms, processing payments, cancellations and credits, and handling customer service.

We will track the volume and amount of product sales generated by users and will make reports summarizing this sales activity available to you through our site. The form, content, and frequency of these reports may vary from time to time in our sole discretion. To permit accurate tracking, reporting and referral fee accrual, you must ensure that the links between your site and our site remain properly formatted. Due to privacy concerns, no personal information on any customer of ours will be provided to you.

5. Referral Fees
We will pay you a referral fee equal to ten percent (10%) of the net amount we receive from sales of Products to users, excluding amounts collected by us for sales taxes, duties, shipping, handling, gift wrapping and similar charges (Net Sales). This referral fee rate is subject to change at any time or from time to time, in our sole discretion. Net Sales will also be reduced for amounts attributable to credit card fraud, bad debts and credits for returned goods.

A referral fee will only be paid if the user is tracked by our internal online ordering system from the time the link is initiated on your site to the time of the sale. If a user comes to our site via a link from your site, leaves our site and then later returns to our site other than via a link from your site, you will not be paid any referral fee on sales of products made during such return visit.

Only products sold by us (to users of your site through links to our site), shipped to a customer and for which we have received full payment will qualify for a referral fee. For a sale to generate a referral fee, the customer must follow the link from your site to our site, purchase a product or products using our internal online ordering system, accept delivery of the product or products at the shipping destination, and remit full payment to us. Gift certificates are not eligible to earn referral fees.

6. Referral Fee Payment and Reporting
We will pay you referral fees on a quarterly basis. Within 30 days or a reasonable time after the end of each calendar quarter, we will send you a check for the referral fees earned during that quarter, less any taxes that we may be required to withhold. However, if the referral fees you earned during any calendar quarter are less than $50, then we will hold those referral fees until the quarter in which the total amount due is at least $50 or (if earlier) until this Agreement is terminated. If our records show activity from your site that we determine is inconsistent with valid referral fee activity, or is otherwise unusual, then we reserve the right to withhold payment of referral fees for a reasonable time pending an investigation of that activity by us and resolution of the dispute (if any). We will notify you promptly in this event.

Acceptance into the Program will give you access to a password-protected site or area of a site communicated to you by us. You may log in to that site and access information about the referral fee activity from your site.

7. Policies and Pricing
You acknowledge that customers who buy our products through the Program are shopping on our site and will be deemed to be customers of, subject to our rules, policies and operating procedures concerning customer orders, customer service and product sales. We may change our rules, policies and operating procedures at any time, without notice. Product prices and availability may vary from time to time in our sole discretion. Pricing changes may apply to products that you already have listed on your site; therefore, you may not include price information in your product descriptions. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.

8. Limited Licenses
By enrolling in the program and entering into this Agreement, you are hereby granted a non-exclusive, non-transferable, revocable license to use our icon, graphics and text contained in the links as well as the right to use product-related information and graphics from our site; i.e., product descriptions and images, and any other images for which we grant express permission, solely on your site for the purpose of identifying your site as a program participant and to assist in generating product sales. You may not modify the icon, the message in the graphic, the product graphics or content, or any other images in any manner whatsoever. We reserve all of the rights in the graphic images and any text or other images, our trade names and trademarks, and all other intellectual property rights. You agree that you obtain no interest in any of our trademarks or intellectual property by virtue of our consent to your display such marks and intellectual property on your site as set forth in this Agreement, and all use of our marks shall inure solely to our benefit. You agree to follow our trademark guidelines, as those may change from time to time.

9. Publicity
You may not create, publish, or distribute any items that references us without first submitting those items to us and receiving our written consent. We will not unreasonably withhold our consent.

10. Responsibility For Your Site
You are solely responsible for the development, operation and maintenance of your site and for all materials and content that appear on your site. We will not be responsible for any of the foregoing. You agree to indemnify and hold us harmless from all damages, claims, fees (including attorneys' fees) and expenses relating to the development, operation or maintenance of your site, including content not attributable to us.

11. Confidentiality
During the term of this Agreement, you may have access to certain non-public information of ours, which information a reasonable person would consider confidential or which is marked as "confidential" or "proprietary" by us ("Confidential Information"). Confidential Information does not include information that is generally known and available, or in the public domain through no fault of yours. You agree not to disclose any Confidential Information to any third parties, not to use any Confidential Information for any purposes except carrying out your rights and responsibilities under this Agreement, and to keep the Confidential Information confidential using the same degree of care you use to protect your own confidential information, as long as you use at least reasonable care.

12. Limitations of Liability
We will not be liable for indirect, special or consequential damages (or any loss of revenue, profits or goodwill, loss of use or data, or interruption of business) arising in connection with this Agreement or the Program, even if we are aware of or have been advised of the possibility of such damages. Our liability to you or any third party arising with respect to this Agreement and the Program shall not, for any reason, exceed the total referral fees actually paid or payable to you under this Agreement.

13. 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, non-infringement 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, timely or error-free, and we will not be liable for the consequences of any interruptions or errors. You acknowledge and agree that any material and/or data downloaded or otherwise obtained from our site is at your own risk and you will be solely responsible for any damage to your computer system or loss of data that results from the download of such material and/or data.

14. Term of the Agreement
The term of this Agreement will begin when we notify you of your acceptance and enrollment in the Program and will end when terminated by either party, which may occur at any time, with or without cause, by giving the other party e-mail notice of termination. Referral fees will be paid only for sales of qualifying products occurring during the term, and fees earned through the date of termination will remain payable only if the related orders are not canceled. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. When the Agreement is terminated, you agree that you will immediately remove from your site all links to our site(s) and all other content, including our graphic images and text of any kind, computer code, our trademarks, trade names or logos.

15. Modification
We may modify any of the terms and conditions contained in this Agreement at any time and at our sole discretion, by notifying you with a new agreement or posting the new version of the Agreement on our 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.

16. 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 the parties. You have no authority to make or accept any offers or representations on our behalf. You hereby agree to not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this section.

17. Representations
You hereby represent and warrant to us that this Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; and that the execution, delivery and performance by you of this Agreement are within your legal capacity and power, have been duly authorized by all requisite action on your part, require the approval or consent of no other persons; and neither violate nor constitute a default under the provision of any law, rule, regulation, order, judgement or decree to which you are subject or which is binding upon you, or the terms of any other agreement, document or instrument applicable to you or binding upon you.

18. 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 or participating in the Program and are not relying on any representation, guarantee or statement other than as set forth in this Agreement.

19. Miscellaneous
When you electronically transmit your application to us, you agree that this Agreement shall constitute a signed writing to the extent a signed writing is required by law, and you agree not to contest the validity or enforceability of this Agreement under the provisions of applicable law relating to whether certain agreements are to be in writing or signed by the party to be bound thereby.

This Agreement will be governed by the laws of the United States and the State of California, without reference to the rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in San Rafael, 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 enforceable against the parties and their respective successors and assigns.

If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.

This Agreement sets forth the entire and final understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter hereof. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

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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