Art.com Affiliate Program - Operating Agreement

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OPERATING AGREEMENT

Last updated: June 1,2009

This Agreement contains the complete terms and conditions upon which we offer you participation in the Art.com Affiliates Program (the "Program"). Acceptance of this Agreement by participation in the Program creates a binding legal agreement that you will use our websites, links and other property of Art.com, Inc. or its partners only in a manner that is consistent with this Agreement.

As used in this Agreement, "we" means AllPosters.com, "you" means the applicant, and "our Website" means www.art.com and any similarly branded websites operated by us.

1. Enrollment in the Affiliate Program

To begin the enrollment process, you will submit a complete Program application via our Website. We will evaluate your application and notify you of your acceptance or rejection. We may reject your application for any reason our sole discretion. We generally reject applications related to websites that:

Promote violence;
Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
Promote illegal activities or are intended to harass or defame anyone;
Include "art.com" or variations or misspellings thereof in their domain names; or
Otherwise violate our intellectual property rights or the intellectual property rights of others.

If we reject your application, you are welcome to reapply to the Program at any time. If we accept your application, we reserve the right to terminate your participation in the Program for any reason in our sole discretion immediately without prior notice.

2. Links on Your Website

Once you have been notified that your website has been accepted into the Program, you may provide on your website one or more of the following types of links to our Website:

Text links
Banner links
Category links
Search Box link
Virtual Stores
Live Store Windows
Data Feed links
General link to our website home page

We will provide you with guidelines and graphical artwork to use for linking to our Website. To permit accurate tracking, reporting, and commission accrual, we will provide you with special "tagged" link formats ("Special Links"). You must ensure that each link between your website and our Website is a special link. You will only earn commission on sales that originate through Special Links. We are not for any failure by you to use Special Links.

Use of Images
The product images provided to members of the Program are the property of Art.com, its corporate affiliates or its content suppliers and are protected by United States and international copyright laws. You may not use any product image in any way that exceeds the limited license granted to you. This limited license allows you to use product images solely for the purpose of promoting our products for sale by creating Links connecting your website to our Website. This means, among other things, that you may not: (a) alter, modify or manipulate any product image; (b) use a product image in any form other than the form provided by us; (c) remove any code or identifying information from any product image; (d) inactivate the link associated with any product image or cause the image to ultimately link to a destination other than our Website; or (e) link to or display images after they have been discontinued from the Art.com product catalog.

3. Restrictions and Prohibited Activity

You may not, directly or indirectly:

(a) Purchase or register domains or search engine keywords, AdWords, search terms or other identifying terms that include the word "AllPosters" or "Art.com," or any variations thereof. Variations include foreign country or other top-level domain extensions. In addition to the foregoing, you must register or establish the following negative keywords with each search engine from which you purchase or register keywords: "allposters," "allposters.com," and "art.com." Specifically, this policy prohibits you from purchasing or registering domains or search terms such as, but not limited to, the following:

Our trademarks, "AllPosters", "AllPosters.com" and "Art.com", and any keyword string that includes these terms, for example, "allposters posters", "allposters.com coupons", "allposters and coupons", "allposters prints", etc.;
Variations or misspellings of our trademarks such as: "all posters", "al poster", "art com", "all-posters", "www.allposters", "ww.allposter.com", "art.cm", "all-posters.com", "www.alposter.com", "all.posters", "wwwart.com", "allpostercom", etc.; or
Any form of our trademarks, or any variation or misspelling thereof, in connection with foreign country or other domain extensions.

(b) Use or display "AllPosters" or "Art.com," or any misspellings or variations thereof, in either the copy/advertisement or the display URL for paid search listings. Variations include foreign country or other top-level domain extensions;

(c) You must follow common search engine guidelines, such as: (a) your display URL must match the ultimate actual destination URL; (b) you may not frame our website as a landing page; or (c) you may not create "redirects" or "jump pages" that immediately direct to our website;

(d) Dilute, blur or tarnish the value of our trademarks, and/or products and services. (For example, you are not allowed to say that you offer better and/or more promotions, products and services than Art.com.);

(e) Misrepresent Art.com's brands including our URL, logos, trademarks and tradenames, or misrepresent that either you or your website are Art.com or operated by Art.com, Inc.;

(f) Engage in any conduct that violates the CAN-SPAM Act of 2003, as amended, or any similar privacy or data protection law of any jurisdiction;

(g) Enable any sales to be made that are not in good faith, including, but not limited to, by means of any device, program, robot, Iframe, hidden frame or redirect;

(h) Use any device or technology that will replace, intercept, interfere, hinder, disrupt or otherwise alter in any manner a Web user's access, view or usage of, the website of any affiliate of ours in a manner that causes or otherwise results in a different experience from what was otherwise intended by our affiliate; or

(i) Use any device or technology that will block, alter, direct, redirect, substitute, insert, append itself to, or otherwise intercept or interfere in any manner with any click through or other traffic-based transaction that originated from the website of any affiliate of ours with the result of reducing any compensation or other payment earned by or owing to such affiliate.

(j) Issue or post any press release or other broad-based communication regarding your participation in the Program without our consent. Notwithstanding the foregoing, you may promote your website via mailings to recipients who are already customers or subscribers to your website's services, provided that the recipients have the option to remove themselves from future mailings and that you otherwise comply with all applicable laws of your jurisdiction. Further, you may promote your website via newsgroup postings to newsgroups that specifically welcome commercial messages (when in doubt, consult the newsgroup FAQ or moderators to be sure that such a message is acceptable in that newsgroup).

We reserve the right to modify these rules at any time. If we determine, in our sole discretion, that you have violated any of the foregoing restrictions, we may (without limiting any other rights or remedies available to us) withhold any commission otherwise payable to you under this Agreement and/or terminate this Agreement. If we are required to enforce any of the foregoing restrictions, you will be obligated to reimburse us for any attorneys' fees incurred in connection therewith.

4. Use of our Trademarks

Our trademarks include "AllPosters," "AllPosters.com" and "Art.com" (the "Trademarks"). You may use the Trademarks solely for the purposes authorized by this Agreement. You may not alter graphics containing the Trademarks in any manner. For example, you may not change the proportion, color, or font of the Trademarks. You may not display the Trademarks in any manner that implies sponsorship, endorsement by us other than of your involvement in the Program. You may not use the Trademarks to disparage our company, our products or services, or in a manner which, in our reasonable judgment, may diminish or otherwise damage our goodwill in the Trademarks. You acknowledge that all rights to the Trademarks are our exclusive property, and all goodwill generated through your use of the Trademark will inure to our benefit.

If we determine, in our sole discretion, that you have violated any of the foregoing restrictions, we may (without limiting any other rights or remedies available to us) withhold any commission otherwise payable to you under this Agreement and/or terminate this Agreement. If we are required to enforce any of the foregoing restrictions, you will be obligated to reimburse us for any attorneys' fees incurred in connection therewith

5. Order Processing

We will process product orders placed by customers who follow a Special Link from your website to our Website. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations, and returns, and handle customer service. We will track sales made to customers who purchase products using Special Links from your website to our Website and will make available to you reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time at our discretion.

6. Commission

We will pay you commission on certain product sales in accordance with Sections 7 and 8 below. For a product sale to be eligible to earn commission, the customer must follow a Special Link from your website to our Website, select and purchase the product using our automated ordering system, accept delivery of the product at the shipping destination, and remit full payment to us.

7. Commission Schedule

Direct commission

Commission rate for Coupon Affiliates

Sub-Affiliate Commission

8. Commission Payment

We pay commission on a monthly basis. 45 days following the end of each calendar month, we will send you a check for the commission earned on your Qualifying Revenues during that month, less any taxes that we are required by law to withhold. However, if the commission payable to you for any month are less than $20.00 (for U.S. affiliates) or $100.00 for (non-U.S. affiliates), or such other minimum payout threshold you may establish through the Program account tools, we will hold the commission until the total amount due exceeds such minimum payout threshold or, if earlier, until this Agreement is terminated. If a product that generated commission is returned by the customer, we will deduct the corresponding commission from your next monthly payment. If there is no subsequent payment, we will send you a bill for the commission.

9. Policies and Pricing

Customers who buy products through the Program will be deemed to be customers of Art.com. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.

10. Identifying Yourself as an Affiliate

We will make available to you a small graphic image that identifies your website as a Program participant. This logo or the phrase "In affiliation with Art.com" must be displayed conspicuously on your website. We may modify the text or graphic image of this notice from time to time. In addition, we encourage (but do not require) you to include a Special Link on your website to our home page at www.art.com.

11. Limited License

We grant you a nonexclusive, non-sublicensable, revocable right to use the product images, graphics, logos and other content made available through the Program ("Content") solely for purposes of your participation in the Program to assist in generating product sales. Product images must be served by our Website and cannot be used in any form other than the form provided by us. You may not modify any Content in any way. We reserve all of our rights in the Content.

12. Responsibility for Your Site

You will be solely responsible for the development, operation, and maintenance of your website and for all materials or content that appear on your website. Failure to remove from your website items that have been discontinued from our product catalog may result in an infringement of a third party's intellectual property rights, for which you will be solely responsible. We strongly encourage you to check the Discontinued Product Feed (in the Special Feeds area) frequently to ensure that your website does not contain any items that have been discontinued from our product catalog.

13. Representations and Warranties

You hereby represent and warrant to us as follows:

a. This Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.

b. Any information you provide to us in connection with your participation in the Program will be true and correct.

c.The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby shall not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.

d.No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.

14. Term of the Agreement

The term of this Agreement shall begin upon our acceptance of your Affiliate Program application and shall end when terminated by either party. Either Party may terminate this Agreement at any time, with or without cause, by giving the other Party notice of termination. You are only eligible to earn referral fee payment(s) on sales occurring during the term, and referral fee payment(s) earned through the date of termination shall remain payable only if the related Art.com Product orders are not canceled or returned, provided, however, we may withhold your final payment for a reasonable time to ensure that the correct amount is paid.

15. Modification

We may modify any of the terms and conditions contained in this Agreement at any time at our sole discretion by posting a change notice or new version of the Agreement on our site. Terms may be changed or updated at any time, but you shall be able to find the most recent version on our website. Modifications may include, but are not limited to, changes in the scope of available referral fee payment(s) or the payment program in general, payment schedules, payment procedures, and Affiliate Program rules. If any modification is unacceptable to you, your only recourse is to terminate this agreement. Your continued participation in the Affiliate Program following our posting of a change notice or new agreement on our site shall constitute binding acceptance of the change.

16. Relationship of Parties

You and Art.com are independent contractors, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You shall have no authority to make or accept any offers or representations on our behalf. You shall not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.

17. Limitation of Liability; Indemnification

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 commission paid or payable to you under this Agreement within the last six (6) months.

You hereby agree to indemnify and hold harmless Art.com, Inc. and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (a) any claim that your use of any trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (b) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (c) any claim related to your acts, omissions or website not attributable to us.

18. Disclaimers

We make no express or implied warranties or representations with respect to the Affiliate Program or any Art.com Products sold through the Affiliate Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site shall be uninterrupted or error free, and we shall not be liable for the consequences of any interruptions or errors.

19. 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 WEBSITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEBSITE. 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.

20. Miscellaneous

This Agreement will be governed by the laws of the State of California, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Oakland, 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. 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. If any term, clause or provision of this Agreement shall be deemed invalid or unenforceable for any reason, the remainder of this Agreement shall remain valid and enforceable in accordance with its terms.