This Agreement contains the complete terms and conditions that apply to your participation in the Shutterfly.com Affiliate Program (the "Program"), and the establishment of links from your affiliate web site to our web site, "Shutterfly.com."
This Affiliate Agreement ("Agreement") is made between Shutterfly, Inc. ("Shutterfly") and ("Affiliate").
Affiliate and Shutterfly are each enrolled in The LinkShare Network.
Affiliate and Shutterfly each desire to establish the general terms and conditions which shall govern advertising and commission arrangements between Affiliate and Shutterfly which result from their participation in The LinkShare Network.
Terms and conditions
In consideration of the promises set forth below, we agree as follows:
1. Offers and Engagements.
1.2. If an Offer made by one party is accepted by the other party in accordance with the Offer’s terms via The LinkShare Network, an "Engagement" will have been formed. 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.
1.3. At any time prior to Affiliate providing a Qualifying Link, Shutterfly 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 submitted by Shutterfly for an Offer or an Engagement. Affiliate agrees to promptly implement any request from Shutterfly to remove, alter or modify any graphic or banner ad submitted by Shutterfly that is being used by Affiliate as part of an Engagement.
2. Affiliate’s Responsibilities.
2.2. Affiliate agrees not to make any representations, warranties or other statements concerning Shutterfly, Shutterfly’’s site, any of Shutterfly’s products or services, or Shutterfly’s site policies, except as expressly authorized by Shutterfly. Affiliate agrees to represent Shutterfly’s services in a manner consistent with all Shutterfly.com site messaging:
2.3. Affiliate is responsible for notifying Shutterfly and The LinkShare Network of any malfunctioning of the Required URLs or other problems with Affiliate’s participation in the Engagement. Shutterfly will respond promptly to all concerns upon notification by Affiliate.
3.2. A "Qualifying Link" is a link from Affiliate’s site to Shutterfly’s using one of the Required URLs or any other URL provided by Shutterfly for use in The LinkShare Network if it is the last link to the Shutterfly’s site that the Customer uses during a Session where a sale of a product or a service to Customer occurs.
3.3. A "Session" is the period of time beginning from a Customer’s initial contact with Shutterfly’s site via a link from the Affiliate’s site and terminating when the Customer either returns to the Shutterfly’s site via a link from a site other than Affiliate’s site or the Engagement expires or is terminated.
3.4. Shutterfly shall pay Affiliate the following commissions:
$9 per each Active New Customer sent to Shutterfly (defined below).
Eight percent (8%) share of product revenue for each Repeat Order (defined below).
Product revenue means the amounts actually received by Shutterfly for print products delivered less prepaid print plans, annual savings plans, portrait packages, purchases made from Shutterfly Pro Galleries, gift certificates, print product returns, fees paid to credit card processing companies, charge-backs, promotions and other discounts, rebates or credits, amounts collected for sales taxes or their applicable taxes or duties, and shipping and handling costs.
We currently do not commission on Shutterfly Pro Gallery accounts.
3.5. For purposes of this Agreement, "Active New Customer" means an end user who places their first print product order within thirty (30) days after clicking on Qualifying Link. "Repeat Order" means an end user who places subsequent print product order within 30 days clicking on Qualifying Link.
3.6. For purposes of this Agreement, "new Pro Gallery account" means an end user successfully completes the account signup form, and pays the annual fee within 30 days clicking on Qualifying Link. The annual fee is non-refundable.
3.7. Shutterfly shall pay Affiliate within thirty (30) days after the end of each calendar month. There is no payment threshold. Linkshare shall issue the Affiliates’ commission checks on Shutterfly’s behalf.
3.8. Shutterfly shall have the sole right and responsibility for processing all orders made by Customers. Affiliate acknowledges that all agreements relating to sales to Customers shall be between Shutterfly and the Customer.
3.9. All determinations of Qualifying Links and whether a commission is payable will be made by The LinkShare Network and will be final and binding on both Shutterfly and Affiliate. Prices for the products will be set solely by Shutterfly in its discretion.
4. Ownership and Licenses.
4.2. Shutterfly grants Affiliate during the term of this Agreement a limited revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology, as designated in the Engagement or during the registration process in The LinkShare Network, on Affiliate’s site solely for the purpose of creating links from Affiliate’s site to Shutterfly’s site during Engagements. Except as expressly set forth in this Agreement or permitted by applicable law, Affiliate may not copy, distribute, modify, reverse engineer, or create derivative works from the same. Affiliate may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void.
4.3. Affiliate grants Shutterfly a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Affiliate solely for co-branding purposes or as a return link from Shutterfly’s site to Affiliate’s site. Shutterfly will remove such graphic or banner ad upon Affiliate’s request.
5.2. Either party may terminate this Agreement at any time, for any reason, provided that they provide at least five day’s prior written notice of such termination to the other party and The LinkShare Network. Termination of this Agreement shall also terminate any outstanding Engagements. However, all rights to payment, causes of action and any provisions, which by their terms are intended to survive termination, shall survive termination of this Agreement.
6.2. Affiliate represents that it will not directly or indirectly offer any person or entity any financial incentive (including, without limitation, payment of money) for using Qualifying Links on its site to access Shutterfly’s site or read, intercept, record, redirect, interpret, or fill in the contents of Shutterfly’s electronic registration form submitted to Shutterfly by any person or entity.
6.3. Search Terms. Affiliate will represent themselves on search engine results only as an "Affiliate of Shutterfly". Notwithstanding the foregoing, Affiliate shall not bid on any search terms that include the word "SHUTTERFLY" or certain variations thereof for use in search engines, such as Overture, Google, and MSN. Specifically, this policy prohibits Affiliate from bidding on Shutterfly’s trademark, "Shutterfly", and any keyword string or variations of Shutterfly’s trademark (collectively "Shutterfly Mark") that includes this term. For clarity, Shutterfly Marks are defined to include, but not limited to:
Domain Name. Affiliate shall not use Shutterfly’s domain name or display URL (i.e., www.shutterfly.com). Specially, this policy prohibits Affiliates from using variations of Shutterfly’s domain name or display URL without the consent of Shutterfly (i.e., www.shutterfly-deals.com).
Creative. Shutterfly shall review Affiliate’s creative if Affiliate bids on Shutterfly Marks. Affiliate is required to have written approval from Shutterfly.
More specifically, Affiliate agrees to the following requirements:
Under no circumstances shall Affiliate send commercial electronic mail messages as defined in the new Federal spam law, the CAN-SPAM Act of 2003 [the "Act"], with respect to Shutterfly’s Affiliate Program. For clarification, this does not prohibit Affiliate from sending transactional or relationship messages as defined in the Act.
In addition, except as expressly authorized by Shutterfly, any and all electronic messages initiated or sent by Affiliate or on Affiliate’s behalf must identify Affiliate as the sender and may not suggest or imply, or mislead or be likely to mislead a recipient into believing that Shutterfly or LinkShare is a sender or sponsor of, or has procured Affiliate to send, such electronic messages. To be clear, Affiliate may not use a return address, subject heading, header information or message contents that misleads or confuses or is likely to mislead or confuse a recipient as to Affiliate being the sender.
Furthermore, Shutterfly must approve Affiliate electronic messages before sending.
6.5. Affiliate shall not use "Shutterfly" or any confusingly similar variation thereof in Affiliate’s domain name or URL (including sub domain or URL path).
6.6. EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF SHUTTERFLYABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. LinkShare Required Provisions.
8.2. The parties agree that LinkShare may rely on any data, notice, instruction or request furnished to LinkShare by either party which is reasonably believed by LinkShare to be genuine and to have been sent or presented by a person reasonably believed by LinkShare 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 LinkShare, LinkShare may consult with and use counsel of its own choice in connection with such dispute and the reasonable fees and disbursements of LinkShare’s counsel shall be within the costs and disbursements covered by the indemnity specified in Section 8.1 above.
8.3. The parties acknowledge and agree that this Agreement and the Engagements are only made possible due to LinkShare and that the parties shall not, for the duration of this Agreement and for twelve (12) months thereafter, enter into any advertising, collaborations or other commercial arrangements with each other in connection with their sites on the World Wide Web except via The LinkShare Network.
8.4. Shutterfly and Affiliate acknowledge and agree that the nature of the Product is such that in its normal operation it may access and download elements of software data from resources which are external to the computer or device running the Product, such as Product enabled servers. Shutterfly and Affiliate Acknowledge that LinkShare has not undertaken to provide such external resources or servers and specifically disclaims any representation or warranty as the availability, quality or performance of such resources or whether they may contain any defects which may affect the performance of the Product or Shutterfly or Affiliate’s computer. LinkShare shall not be responsible for provision of any communications facilities or the costs associated with such communications.
8.5. Shutterfly and Affiliate agree that LinkShare is an intended third party beneficiary.
8.6 Affilate acknowledges that this Agreement may be amended from time to time by Shutterfly and that each Engagement shall be governed by the version of this Agreement made available by Shutterfly at the time of such Engagement.
9. Limitation of Liability.
9.2. The parties agree that The LinkShare Network and LinkShare Corporation and its affiliates, officers, directors, employees and agents shall not be liable to either party for any indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.
10.2. The parties agree that The LinkShare Network and LinkShare Corporation are intended third party beneficiaries under this Agreement.
10.3. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of Shutterfly’s headquarters. Any action to enforce this Agreement shall be brought in the federal or state courts located in that state. If you need to send official correspondence, send it via registered mail to Shutterfly’s headquarters to the attention of Shutterfly’s legal department.
10.4. This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution may be achieved in any format convenient to the parties.
10.5. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.