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."

Affiliate agreement

This Affiliate Agreement ("Agreement") is made between Shutterfly, Inc. ("Shutterfly") and ("Affiliate").

Background

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.
1.1. From time to time, Shutterfly may post on The LinkShare Network™ offers to pay to other participants a specified commission in return for certain advertising services leading to a Qualifying Link (defined below). If such offers receive an identification number from The LinkShare Network™ they shall be deemed to be an "Offer" for purposes of this Agreement. The term "Offer" shall also include any counter-offers resulting from an Offer.

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.
2.1. Affiliate will link its site to areas within Shutterfly’s site using special URLs specified in the Engagement (the "Required URLs"). Affiliate may post as many links to the Required URLs and the rest of Shutterfly’s site as it likes on Affiliate’s site. The position, prominence and nature of links on the Affiliate’s site shall comply with any requirements specified in the Engagement, but otherwise will be in the discretion of Affiliate.

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:

1. Uploading digital pictures or sending film to Shutterfly for processing
2. Getting creative with pictures by adding borders, cropping, or removing red-eye
3. Ordering prints, cards, frames, and other photo gifts. Affiliate agrees to promote Shutterfly as a place to print and share pictures online. Affiliate agrees not to make any press releases with respect to this Agreement or its participation in the Program without Shutterfly’s prior written consent, which may be given or withheld in Shutterfly’s sole discretion.

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. Commissions.
3.1. Shutterfly agrees to pay Affiliate the commission specified in the Engagement if Shutterfly sells to a visitor to Shutterfly’s site (a "Customer") product(s) that is the subject of the Engagement and if that Customer has accessed Shutterfly’s site and purchased the print product(s) via a Qualifying Link. In addition, if a visitor to Shutterfly’s site (a "Customer") signs up for Shutterfly Pro Gallery account(s) via a Qualifying Link.

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:
Monthly Active New Customer Tiers:

$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.
4.1. Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.

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. Termination.
5.1. Either party may terminate any Engagement at any time by deleting their acceptance of the Engagement through The LinkShare Network™. Termination of an Engagement shall not terminate this Agreement or any other Engagement.

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. Representations.
6.1. Each party represents to the other that (a) it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby, and (b) any material which is provided to the other party and displayed on the other party’s site will not (i) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, anti-discrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.

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:

• Shutterfly trademark, "Shutterfly", and any keyword string that includes this term. For example, "Shutterfly digital prints", "Shutterfly photo products", etc.; and
• Variations of Shutterfly trademark: for example "Shutterfly.com", "www.shutterfly.com", "Shutter-fly", "Shutterbug", etc.

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:

• Search arbitrage is forbidden. Affiliate may not engage in paid search listings that feature a URL with the word "shutterfly" included and may not link directly from a paid search listing to any page of the Shutterfly site. Affiliate may not frame the Shutterfly site and may not link directly to such a framed site from a paid search listing. This applies to all search terms, both branded (trademarked) and general keywords.


• Affiliate may engage in paid search to promote the Shutterfly brand only when using non-branded keywords such as photo books, photo cards, photo calendars, etc. In such case, they must link to their site or an intermediary page , provided that the linked page may not display ads from any service competitive with Shutterfly. Traffic may not be automatically redirected from any such page to the Shutterfly site.


• Affiliate may not bid on "Shutterfly" branded keywords, including but not limited to words such as "Shutterfly," or "shutterfly.com," or "shutterflyphotos." This restriction extends to misspellings or variations of "Shutterfly" and to phrases that include "shutterfly," such as "shutterfly coupon," "shutterfly coupon code," etc.


• Affiliate agrees not to employ any so-called fat-finger domains or typosquatters redirecting web traffic to the Affiliate’s link without first notifying merchant of the use of such domains and registration information pertaining to such domains as Merchant shall specify, prior to commencing the use and following termination of the use of a fat-finger domain. A typosquatter or a fat-finger domain is any domain that amounts to a misspelling of any registered or unregistered Merchant trademark. Examples of these types of misspelled domains, include, but are not limited to the following: shutteryfly.com


• Affiliate may not bid on Shutterfly competitors’ trademarks to list the Shutterfly brand name.


• Each Affiliate must convey that it is an affiliate by adding such copy as "aff", "affiliate", "partner", "publisher", "partner listing", "affiliate listing, or "publisher listing" when including our brand name in ad copy. For example, if a publisher is bidding on a keyword such as: photo book, they can include the word Shutterfly in their ad copy but at the same time, they should also convey that they are an affiliate of Shutterfly and in no way represent themselves as a competitor or the company itself.


• Affiliate may not use terms implying the Affiliate represents Shutterfly, such as "official site," in ad copy that is displayed on search engines.


• Affiliate may not use Shutterfly trademarks, trade names or service marks in meta tags, in hidden text or source code, in their domain name or any other part of its Universal Record locator (URL).


• If an Affiliate listing is displayed in the search results for any Shutterfly branded keywords, Affiliate will take appropriate action to remove their listing from the search engines upon Shutterfly’s request.

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.

7. Cross-Indemnification.
7.1. Each party hereby agrees to indemnify, defend and hold harmless the other party and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys’ fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.

8. LinkShare Required Provisions.
8.1. Shutterfly and Affiliate jointly and severally hereby agree to indemnify, defend, and hold harmless The LinkShare Network™™ and LinkShare Corporation and its affiliates, officers, directors, employees and agents (collectively, "LinkShare") from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys’ fees) directly or indirectly arising from or relating to any Offer, Engagement, any other matter related to this Agreement or the subject matter hereof any dispute relating thereto.

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.
9.1. In no event shall either party be liable to the other party for any indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.

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. General.
10.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.

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.