Pazzles Online Retailer Affiliate Program

Online Retailer Affiliate Agreement

Revision Date: November 2012

This agreement (the “Agreement” or “Terms”) is made between Pazzles^® (the “Company”), and the Affiliate, and collectively, the “Parties”) for participation in the Company’s Affiliate Program.

INSTRUCTIONS AND REQUIREMENTS FOR APPLICATION.

Applicants for the Online Retailer Affiliate Program are required to have ALL of the following to participate in the affiliate program:

1. A Pazzles Wholesale Account in good standing.
2. An online store with shopping cart system that is able to process payments over the internet.
3. Have the Pazzles Inspiration and at least one ancillary product (e.g. Pazzles Inspiration replacement blades) listed for purchase inside the shopping cart system at all times.
   1. Retailer may carry inventory or participate in drop ship, so long as the Pazzles Inspiration and at least one other Pazzles Brand product are available for purchase through the Online Retailer’s store.
   2. Retailer may choose to list Inspiration at a retail price or as “from $99”.
4. To receive credit for affiliate sales on the promotional pricing program, Retailer must display at least one piece of Promotional Material (e.g. banner ad) for the $99/$199 payment plan promotion (see below) for their customers to click.

1)       PROMOTIONAL MATERIALS. Company shall make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate online store, website, and/or blog (the “Promotional Materials”). Affiliate shall display the Promotional Materials on Affiliate’s online store, website, and/or blog, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include the link from the Promotional Materials to Company’s website, as specified and provided by Company without modification of link text, contents, codes, or anything there within.

2)       USE OF PROMOTIONAL MATERIALS. The Affiliate’s use and display of the Promotional Materials (“Banner,” “Link,” or collectively, “Ads”)on the Affiliate’s site shall conform to the following terms, conditions and specifications:

a)       Affiliate may not use any Promotional Materials to promote Company’s website, products or services other than the provided Promotional Materials, unless Company agrees to such other materials in writing prior to their display.

b)      Affiliate may only use the Promotional Materials for the purpose of promoting Company’s website (and the products and services available thereon), and for linking to Company’s website. Purposes other than positive, pro-Company, good-faith promotion will cause the Company to void this agreement, withhold any or all payments due or owed to Affiliate, and possibly take action against the Affiliate for any damages occurred by Company for false, damaging, misleading, or abusive use of Promotional Materials by Affiliate.

c)       Affiliate will not alter, add to, subtract from, manipulate, adjust, or otherwise modify the Promotional Materials  as they are prepared by Company. If Affiliate wishes to alter or otherwise modify the Ads, Affiliate must obtain prior written consent from Company for such alteration of modification. If a request is granted for altered or different promotional materials, the Company will provide the materials. Affiliate may not alter materials on their own, without supervision from the Company. Alteration of Promotional Materials will result in termination of this contract and withholding of any payments or credits due to Affiliate.

d)      The Promotional Materials will be used to link only to Company’s website, to the specific page and address as specified by Company. Any manipulation of link content, text, language, or code will result in termination of this agreement and withholding of any payments due to Affiliate.

Restricted manipulations include and are not limited to:

i)        Gather clicks, sales, and/or affiliated customers through any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests, and/or the unauthorized use of other search engine optimization services and/or software

ii)      frame, minimize, remove or otherwise inhibit the full and complete display of any Web page accessed by an end user after clicking on any part of the Promotional Materials

iii)    direct an end user away from Company Website; provide a version of the Company Website or any of its pages that is different from the page an end user would access by going directly to the Company Website; intersperse any content between the Ad and the Company Website; or otherwise provide anything other than a direct link from an Ad to an Company Website.

iv)     directly or indirectly access, launch, and/or activate Ads through or from, or otherwise incorporate the Ads  in, any software application, Web site, or other means other than Your Property(ies), and then only to the extent expressly permitted by this Agreement

v)       “crawl”, “spider”, index or in any non-transitory manner store or cache information obtained from any Ads or any part, copy, or derivative thereto

3)       LICENSE. Company hereby grants to Affiliate a nonexclusive, nontransferable license (the “License”) to use the Promotional Materials as specified under the terms and conditions of this Agreement. The term of the License shall expire upon the expiration or termination of this Agreement.

4)       INTELLECTUAL PROPERTY. Company retains all right, ownership, and interest in the Promotional Materials, and in any copyright, trademark, or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License, as set forth in Section 3.

5)       RELATIONSHIP OF PARTIES. This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between Company and Affiliate. Affiliate shall have no authority to bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company in any respect.

a)       Inclusion in the Affiliate Program in no way constitutes an endorsement, express or implied, of the publishers’ content or site(s). Affiliates should not use any terms that convey such an endorsement, which could include but is not limited to the use of phrases like “endorsed by”, “supported by” or “sponsored by” in conjunction with any of the Company’s trade names, brands, or logos. Affiliates may not use the language “official site.”

6)       COMMISSIONS.

a)       In exchange for Affiliate’s display of the Promotional Materials, and for Affiliate’s compliance with and performance of the terms and conditions of this Agreement, Company shall pay to Affiliate a commission (the “Commission”) in the amount of a percentage of product sold to a user that accesses Company’s website through a link on Affiliate’s website. The current percentage posted is $20 for the first Inspiration sale to an individual customer, and $1 of each additional subscription payment by that customer thereafter and $5 for the first Craft Room Membership sale to an individual customer, and $1 of each additional subscription payment by that customer thereafter. This amount is subject to change by the Company at any time. Notification to Affiliate of any change in commission percentage will be given by Company at the email address on hand for the Affiliate. Commission will be based on purchases made by a user for any new and recurring purchases for the life of the registered user.

b)      Company shall, in good faith, keep as accurate and as up-to-date records as possible to determine the total amount of Commissions owed to Affiliate. Affiliate shall be given reasonable access to these records upon request, and is available through the affiliate area on the member page at https://www.pazzles.net/amember/aff.php?action=stats. Any discrepancies noted by Affiliate will be evaluated by Company on a case-by-case basis. Company retains sole rights and privileges in determining if an Affiliated action (such as a click) was valid and resulted in a paid transaction that earns credit for the Affiliate.

i)        No Guarantee. Company makes no guarantee regarding the level of impressions of Ads or clicks on any Ad, the timing of delivery of such impressions and/or clicks, the completion of Referral Events, or the amount of any payment to be made to Affiliate under this Agreement.  In addition, Company does not guarantee the Program will be operable at all times or during any down time:

(1)     caused by outages to any public Internet backbones, networks or servers

(2)     caused by any failures of Affiliate equipment, systems, or local access services

(3)     for maintenance or

(4)     relating to any events beyond the Company’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Company or Affiliate servers are located.

c)       Company shall pay all Commissions accrued and payable to Affiliate as part of the regular invoicing cycle for Wholesale Accounts. If on any commission payment date, the amount of total Commissions accrued and payable to Affiliate is less than $10.00, then such accrued and payable balance shall be held over to the following month, and paid together with the Commissions due for that month.

d)      In the event that Affiliate materially breaches this Agreement and Company terminates this Agreement, then any accrued and payable Commissions owing to Affiliate shall be forfeited, and Company shall not be obligated to pay such Commissions to Affiliate.

7)       AFFILIATE’S REPRESENTATIONS AND WARRANTIES. Affiliate represents and warrants the following:

a)       Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.

b)      Affiliate’s website does not contain any materials that are:

i)        Sexually explicit, obscene, or pornographic;

ii)      Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);

iii)    Graphically violent, including any violent video game images; or

iv)     Solicitous of any unlawful behavior

c)       Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s website. Nothing on Affiliate’s website infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.

d)      Affiliate will not use the Promotional Materials in any manner other than those set forth in Section 2 above.

e)       Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.

f)        Affiliate will not use Company’s name (or any name that is confusingly similar to Company’s name) for any purpose on its website, in its promotional materials, or in any other context except to promote Company’s website in a positive manner as specified in this Agreement.

g)       Affiliate will not engage in the distribution of any unsolicited bulk emails (spam) in any way mentioning or referencing Company or Company’s website.

h)      Affiliate will not encourage, instruct, or coerce people to support their blog by only shopping through their links.

8)       SEARCH ENGINE OPTIMIZATION, PAY-PER-CLICK ADVERTISING OR SEARCH ENGINE MARKETING BY AFFILIATE.

a)       Affiliates may not use online paid marketing, such as Google Adwords, or any other pay-per-click or pay-per impression methods to bid on any of the Company’s trademarked or branded terms (including but not limited to: “Pazzles.com,” “Pazzles Craft Room,” “Inspiration Creative Cutter,” etc). Affiliates also may NOT bid on misspellings or variations on any branded term on any online ad service.

b)      Affiliate may not use http://www.pazzles.com, http://www.pazzlescraftroom.com, or www.pazzles.net as a display URL on any advertising service.

c)       Affiliate must ensure that all copy used for search and keyword purposes is appropriate and 100% accurate and does not contain any claims that could be construed to be false or misleading. Affiliate agrees that, following notice from Company, Affiliate will promptly remove any advertising or paid search listing containing copy and/or creative components that Company, in its sole discretion, deems inappropriate for any reason.

9)       INDEMNIFICATION. Affiliate shall indemnify Company and hold harmless Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s warranties set forth in this Agreement. Affiliate shall also indemnify and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.

10)   CONFIDENTIALITY. Any information that Affiliate is exposed to by virtue of its relationship with Company under this Agreement, which information is not available to the general public, including the kind and amount of earnings payments], shall be considered to be “Confidential Company Information.” Affiliate may not disclose any Confidential Company Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from Company.

11)   TERM.

a)       This Agreement shall take effect immediately, and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section 11.

b)      Either Party shall have the right to terminate this Agreement at any time and for any cause. The terminating Party must give written notice to the other Party at least 30 days prior to the intended date of termination, unless agreement is breeched per terms set in other Sections.

12)   TAXES. Company shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Affiliate.

13)   LIMITATION OF LIABILITY. Company shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement.

14)   SEVERABILITY. If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.

15)   MISCELLANEOUS. This Agreement shall be governed by the laws of the State of Idaho, United States of America. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Ada County, Idaho. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.

This Agreement constitutes the entire agreement between Company and Affiliate, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.

By applying to the Company’s Online Retailer Affiliate Program and placing Promotional Materials on their website, blog, or other online presence, the Affiliate accepts this Agreement without modification. Company reserves the right, from time to time, with or without notice to Affiliate, to change the Terms of this Agreement in their sole and absolute discretion. The most current version of these Terms can be reviewed by request to promotions@pazzles.com. The most current version of these Terms will supersede all previous versions. By continuing use the Promotional Materials after the Terms have been modified, you are agreeing to such modifications. If you do not agree to the modifications, Affiliate should cease using the Promotional Materials and terminate their participation as described in Section 11b above.