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OPERATIONS AGREEMENT

Effective Date: October 2013

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. At this time we are not accepting applications from residents of Rhode Island, Arkansas, Pennsylvania, or Georgia. As used in this Agreement, "we" means Art.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

The purpose of this Program is to promote the sale of products offered on our Website (the “Purpose”). 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:

  • Product links
  • Text links
  • Banner links
  • Category links
  • Search Box links
  • 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 accrual of commission credits, 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 credits on sales that originate through Special Links. We are not responsible for any failure by you to use Special Links. You may also use Special Links on social media sites (e.g. Facebook, Twitter, Pinterest) (“Social Media Site”), provided that such use is consistent with the Purpose and terms of this Agreement.

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 by this Agreement. This limited license allows you to use product images solely for the purpose of promoting our products for sale by creating Links connecting 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", “art.com coupon”, “artcom coupn”, "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", “artdotcom”, “artcom”, “art-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) Use or display any logos or trademarks owned by Art.com, or any misspellings or variations thereof, in your profile on any Social Media Site. Prohibited uses include, but are not limited to, profile and/or screen names, email addresses, profile or cover photos/images, etc.

(d) 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;

(e) 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.);

(f) 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.;

(g) 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;

(h) 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;

(i) 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

(j) 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.

(k) 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

Subject to the terms and conditions of this Agreement, you will be eligible to earn commission on certain product sales in accordance with Sections 7 and 8 below. For a product sale to be eligible for commission credits, 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. As a condition precedent to the right to receive any commission hereunder, you agree that you will cash or deposit any commission check sent to your address of record within 120 days of the date of the check. Any failure to cash or deposit any such check within such period will cause any commission obligations associated with such check to be void ab initio.

7. Earning Commission Credits

Standard Commission Credit Rate

You will accrue commission credits based on Qualifying Revenues according to commission credit rates established by us from time to time. "Qualifying Revenues" are revenues derived by us from our sales of products, after reduction for discounts, coupons and/or gift card redemptions, as a result of purchases made by visitors to our Website that come directly through a Special Link on your website. “Qualifying Revenues” do not include gift card purchases, shipping & handling, gift-wrapping or taxes.

For all affiliates other than Coupon Affiliates and Sub-Affiliates (see below), the commission rate is 20% of Qualifying Revenues.

Coupon Affiliate Commission Credit Rate

For Coupon Affiliates, the commission rate is 2.5% of Qualifying Revenues. A “Coupon Affiliate” is an affiliate whose business model substantially consists of making coupons available. Whether an affiliate is classified as a Coupon Affiliate shall be determined by Art.com in its sole discretion. Factors that may lead to classification as “Coupon Affiliate” include, but are not limited to (i) the presence of coupon offerings, especially from many different merchants, on the affiliate’s website, especially if such coupons represent many different merchants and/or are indexed or are organized in a directory; (ii) the presence of certain words (or variations or misspellings thereof) in the website’s URL or prominently featured in the website’s content, such as “coupons,” “deals” or “savings”; (iii) a website that is focused on other merchants and the discounts or promotions offered by them, rather than on products, and that features little original, human-generated content.

Sub-Affiliate Commission Credit Rate

You are also eligible to earn commission on sales made by all websites you recruit to the Program. To qualify, the websites you recruit must reference your Account Number or Website ID when they fill out our Program application. This reference can be made manually whereby the applicant enters your Account Number or Website ID into the field marked "Referrer Account Number or Website ID" on the Affiliates Application or automatically using our recruitment banners that contain Special Links.

For each website you recruit, you will earn:
    1. A credit of $3.00 when they make their 1st sale
    2. A credit of $5.00 when they make their 2nd sale
    3. Plus credits of 5% of every sale they make during the term of this Agreement

Affiliates may not sign-up websites owned, beneficially owned or directly or indirectly controlled by them. Affiliates may not directly or indirectly offer any person or entity any consideration or incentive to sign up websites to the Program.

If we determine, at our sole discretion, that you are abusing the system, in the manner stated above, we may (without limiting any other rights or remedies available to us) terminate your participation in the Program and/or withhold any commission payable to you for websites you recruited. 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.

30-Day Cookie

The Program uses a 30-day cookie. This means that if a visitor to your website clicks through a Special Link to our Website, you will be eligible for commission credits on Qualifying Revenues related to purchases made by such visitor within 30 days of such visitor’s click on the Special Link on your website. The Program also employs a last-cookie principal. This means that we will credit a sale to a different affiliate or an Art.com sales channel if the visitor clicks through a Special Link from such other affiliate’s website or Art.com-sponsored advertisement after such visitor clicks through a Special Link on your website.

8. Commission Payment

No commission will be earned or payable unless and until you have in any given Program Year (defined below) accrued commission credits of at least $20.00. “Program Year” refers to any 12-month period beginning June 1 and ending May 31. If you do not accrue such minimum commission credit amount by the end of such Program Year, any commission credits in your account will be canceled and permanently deleted from your account. Any accrued but unpaid commission existing in your account as of the effective date of this agreement will be converted to commission credits as of the effective date of this agreement. Your acceptance of this agreement or continued participation in the Program shall constitute your assent to these terms.

Subject to the foregoing minimum annual commission credits rule, we pay commission on a monthly basis. 45 days following the end of each calendar month, for those affiliates that satisfy the minimum annual commission credit rule we will send a check equal to the commission credits accrued based on your Qualifying Revenues during that month, less any taxes that we are required by law to withhold. However, if the commission credits accrued by 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 payment of commission until you’re your accrued commission credits exceed $20.00 (for U.S. affiliates) or $100.00 (for non-U.S. affiliates). If a product that generated commission credits is returned by the customer, we will deduct the corresponding commission from your next commission payment. If there is no subsequent payment, we will send you a bill for the commission.

If you accrue the minimum commission credit amount during a Program Year but less than $20.00 remains in your account as of the end of such Program Year, such credits will be carried over to the following Program Year as if they were earned on the first day of such following Program Year. As such, if you do not accrue the minimum commission credit amount during such following Program Year (including such carried over credits), such carried over credits will be canceled and permanently deleted from your account at the end of such following Program Year.

Except as set forth in this Agreement, commission credits shall have no value and are not redeemable in any way for cash or merchandise.

If you do not provide a completed W-9 form, federal taxes will be withheld from your commission checks.

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.

Special Rules for Endorsements:
In addition, if your website offers an endorsement of the Website and/or its products or services, you must clearly disclose your relationship as an affiliate to Art.com. Such disclosure must be in clear proximity to the endorsement itself. An “Endorsement” means any message that consumers are likely to believe reflects your opinions, beliefs, findings, or experiences regarding Art.com and/or our products or services.

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 will begin upon our acceptance of your Program Application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your website, all links to our Website, product images from our database, and any of our trademarks, trade dress or logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. You are only eligible to accrue commission credits on Qualifying Revenues occurring during the term of this Agreement, and commission earned through the date of termination will remain payable, subject to Section 8 above, only if the related orders are not canceled or returned. 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 in our sole discretion by posting a change notice or a new agreement on our Website. Modifications may include, for example, changes in the scope of available commission credits, commission credit rates, payment procedures, and Program rules. We typically announce substantive changes to the terms of this agreement by email. 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 Website will constitute your 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 will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your website or otherwise, that reasonably would contradict anything in this Agreement.

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.

Unless you notify us of an asserted discrepancy in your commission payments within six (6) months from the date of the applicable payment, such payment shall be deemed accepted and no protest shall be allowed.

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 Program or any products sold through the 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 Website will 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.

 
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