INTERNET REFERRAL PROGRAM AGREEMENT
This Internet Referral Program Agreement ("Agreement") contains the complete terms and conditions that apply to your participation in the The Popcorn Factory®, INC. Affiliate Program and the establishment of links from your web site to The Popcorn Factory®, INC web site, "www.ThePopcornFactory.com". You may also be referred to herein as "PARTICIPANT", "you" or "Party".
1.The Affiliate Program:
(a) As a PARTICIPANT, we will make available to you (via www.ThePopcornFactory.com) a variety of graphic and textual links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions of this Agreement, you may display as often and in as many areas of your web site as you desire. The Links will serve to identify your site as a PARTICIPANT of our Affiliate Program and will establish a link from your site to www.ThePopcornFactory.com. You agree that you will display on your Web Site only those graphic or textual images (indicating a Link) that are provided to you by The Popcorn Factory®, INC.
(b) To commence the process of enrolling as a PARTICIPANT in the Affiliate Program, you will submit an Enrollment Application via our Web Site or as otherwise authorized by The Popcorn Factory®, INC. We will evaluate your application and notify you of your acceptance or rejection; which determination shall be in our sole discretion.
(a) This Agreement is conditioned upon and will become effective on our acceptance of your Enrollment Application and your acceptance of the terms of this Agreement. Either party may terminate this Agreement at any time, with or without cause by giving the other party notice of termination. The first twelve months following the date this Agreement becomes effective and every twelve months thereafter that this Agreement remains in full force and effect are each a "Term Year".
(b) PARTICIPANT is only eligible to earn commissions on sales which are completed during the term of this Agreement, and commissions earned through the date of termination will be payable only if the related purchases are not canceled or returned. The Popcorn Factory®, INC. may withhold PARTICIPANT'S final payment for a reasonable time to ensure that the correct amount is paid.
(a) a 10% commission for monthly Net Sales up to $1,999.99; and a 12% commission for monthly Net Sales over $2,000.
(b) The Popcorn Factory®, INC. will pay you or cause you to be paid, within thirty (30) days after the end of each calendar month in accordance with the above mentioned commission structure provided total commissions due you for such month exceed Twenty-Five Dollars ($25). The check will be for the applicable commission (less any taxes required to be withheld pursuant to applicable law). For any calendar month in which your commissions do not exceed $25, then The Popcorn Factory®, INC. shall have the option to pay same or to withhold such payment and add such commissions to the next calendar month for which you are entitled to receive a commission check. Furthermore, you will be given a password which will enable you to receive your sales statistics on a reasonable basis.
4. Legal Compliance:
PARTICIPANT shall operate your Web Site and render your services in compliance with all applicable laws and regulations, and PARTICIPANT will be solely responsible for obtaining all required governmental authorizations necessary for its Web Site and the full performance of your services as provided for under this Agreement. PARTICIPANT hereby further represents and warrants that:
(a) If a corporation, you are a corporation duly organized and validly existing and in good standing under the laws of the state of your incorporation;
(b) you have full power and authority to enter into this Agreement and to perform your obligations hereunder;
(c) you have obtained all permits, licenses, and other governmental authorizations and approvals required for your performance under this Agreement;
(d) the services to be rendered by PARTICIPANT under this Agreement neither infringes nor violates any patent, copyright, trade secret, trademark, or other proprietary right of any third party;
(e) this Agreement has been duly and validly executed and delivered by PARTICIPANT and constitutes your legal, valid and binding obligation, enforceable against PARTICIPANT in accordance with its terms;
(f) the execution, delivery and performance by PARTICIPANT of this Agreement, and the consummation by you of the transactions contemplated hereby will 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 PARTICIPANT or binding upon its assets or properties; (iii) any provision of PARTICIPANT'S by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to PARTICIPANT or binding upon your assets or properties;
(g) PARTICIPANT is the sole and exclusive owner of PARTICIPANT'S Marks, as defined herein, and has the right and power to grant The Popcorn Factory®, INC. the license to use PARTICIPANT'S Marks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any person or entity;
(h) no consent, approval, authorization of, or exemption by, or filing with, any governmental authority or any third parties 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; and
(i) there is not pending, or to the best of PARTICIPANT'S knowledge, any threatened claim, action, or proceeding against PARTICIPANT, or any affiliate of yours, with respect to the execution, delivery or consummation of this Agreement, or with respect to your Marks, and, to the best of your knowledge, there is no basis for any such claim, action or proceeding.
(a) PARTICIPANT shall monitor and periodically test the general availability and operation of your Web Site. PARTICIPANT represents and warrants that its Web Site will perform adequately so that customers will be able to shop for The Popcorn Factory®, INC.S' Products.
(b) PARTICIPANT is solely responsible for the development, operation and maintenance of its Web Site and for all materials and content that appear on PARTICIPANT'S Web Site. Such responsibilities include, but are not limited to, the technical operation of PARTICIPANT'S Web Site and all related equipment; the accuracy and propriety of all materials and content posted on PARTICIPANT'S site; and ensuring that materials and content posted on your Web Site will not (i) violate any laws, rules or regulations; (ii) violate or infringe upon the rights of any third party including, without limitation, copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (iii) be lewd, pornographic, sexually explicit, or obscene; (iv) violate any laws regarding unfair competition, anti-discrimination or false advertising; (v) promote violence or contain hate speech, (vi) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious program routines; or (vii) be libelous, harmful, threatening, abusive, harassing, defamatory, derogatory or otherwise illegal or objectionable to The Popcorn Factory®, INC.. (viii) Site will not be a homepage or a personal website created through free webspace offered by 3rd parties.
(c) The Popcorn Factory®, INC. disclaims all liability for all matters set forth in Section 5(b). Further, PARTICIPANT will indemnify and hold The Popcorn Factory®, INC., its parent company, subsidiaries, affiliates and their respective officers, directors, shareholders and employees free and harmless against and from all claims, damages, losses, liabilities and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of PARTICIPANT'S Web Site.
(d) The Popcorn Factory®, INC. reserves the right, in its sole discretion, to monitor PARTICIPANT'S Web Site, at any time and from time to time, to ascertain whether PARTICIPANT is in compliance with the terms of this Agreement.
The Popcorn Factory®, INC. will fulfill all fully paid orders for Products in accordance with The Popcorn Factory®, INC.S' customary business practices. The Popcorn Factory®, INC. shall be solely responsible for fulfilling all orders placed by a customer as a direct result of the Links. The Popcorn Factory®, INC.S' Products offered through the Links will be supported by the same favorable warranty and return policy for such Products as offered through other The Popcorn Factory®, INC.S' channels. Customers who purchase through the Affiliate Program are deemed to be customers of The Popcorn Factory®, INC. Accordingly, all of The Popcorn Factory®, INC.S' rules, policies, and operating procedures concerning customer orders, customer service, and use of customer names and information, will apply to those customers.
Any promotional activities you may wish to engage in that requires the prior written consent of The Popcorn Factory®, INC. PARTICIPANT shall not create, publish, distribute, or permit any written material that makes reference to The Popcorn Factory®, INC. without first submitting such material to The Popcorn Factory®, INC. and receiving written consent thereto.
(a) The Popcorn Factory®, INC. grants to PARTICIPANT a non-exclusive, non-transferable, royalty-free, revocable license to (i) access the The Popcorn Factory®, INC. Web Site through the Links solely in accordance with the terms of this Agreement and (ii) solely in connection with such Links, to use The Popcorn Factory®, INC.S' logos, trade name, trademarks, service marks and similar identifying material relating to The Popcorn Factory®, INC. (collectively the "Marks"), for the sole purpose of selling Products on your Web Site for The Popcorn Factory®, INC. (but only in the form(s) as they appear on The Popcorn Factory®, INC.S' Web Site). You may not alter, modify, amend, or change the Marks in any way. You are only entitled to use the Marks to the extent that this Agreement remains in full force and effect. The use of any such Marks requires the prior written approval of The Popcorn Factory®, INC. in all instances.
(b) PARTICIPANT shall not make any specific use of any Marks of The Popcorn Factory®, INC. for purposes other than selling Products on PARTICIPANT'S Web Site for The Popcorn Factory®, INC., without first submitting a sample of such proposed use to The Popcorn Factory®, INC., and obtaining the prior written consent of The Popcorn Factory®, INC. PARTICIPANT agrees not to use the Marks in any manner that is disparaging or otherwise portrays The Popcorn Factory®, INC. in a negative light. The Popcorn Factory®, INC. reserves all of its rights in the Marks and all of their other proprietary rights. No right, property, license or interest in any Marks is intended to be given to or acquired by PARTICIPANT by the execution or the performance of this Agreement. The Popcorn Factory®, INC. may revoke this license at any time, by giving you written notice. PARTICIPANT may not alter, modify, or change the Marks in any way.
(c) All intellectual and proprietary property and information, supplied or developed by The Popcorn Factory®, INC. shall be and remain the sole and exclusive property of The Popcorn Factory®, INC. Upon termination of this Agreement, PARTICIPANT shall return to The Popcorn Factory®, INC. any and all such property and information it received from The Popcorn Factory®, INC. and immediately cease use of The Popcorn Factory®, INC.S' Marks. Participant agrees not to contest or challenge The Popcorn Factory®, INC.S' Marks or to use any confusingly similar marks.
(d) PARTICIPANT grants to The Popcorn Factory®, INC. a non-exclusive, non-transferable, royalty-free license to access the PARTICIPANT Web Site through the Links; and (ii) use PARTICIPANT'S trade name, titles, logos, trademarks, service marks, products and similar identifying material relating to PARTICIPANT (the "PARTICIPANT'S Marks"), to advertise, market, promote and publicize in any manner this Agreement, the transactions contemplated hereunder or The Popcorn Factory®, INC.S' rights hereunder; provided, however, that The Popcorn Factory®, INC. shall not be required to advertise, market, promote or publicize, in any manner, this Agreement, the transactions contemplated hereunder, or PARTICIPANT'S Marks.
Pursuant to this Agreement, the Parties may disclose to one another certain information ("Information") which is considered by the disclosing party to be proprietary or confidential information, including, without limitation, the term of this Agreement, business, marketing and financial information, customer and vendor lists, and pricing and sales information. All such Information shall remain the sole property of the disclosing party, and its confidentiality shall be maintained and protected by the receiving party with the same degree of care as the receiving party uses for its own confidential and proprietary Information and the receiving party shall not disclose such Information to any third party without the consent of the disclosing party. The restrictions of the use or disclosure of any Information shall not apply to any information: (i) after it has become generally available to the public without breach of this agreement by the receiving party; (ii) is independently developed by receiving party; (iii) is rightfully in the receiving party's possession prior to disclosure to it by the disclosing party; (iv) is rightfully received by receiving party from a third party without duty of confidentiality; or (v) is disclosed under operation of law or pursuant to legal or regulatory process.
The Popcorn Factory®, INC. SHALL NOT HAVE ANY LIABILITY HEREUNDER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT OR BUSINESS OPPORTUNITIES, WHETHER OR NOT The Popcorn Factory®,INC. KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGE MIGHT BE INCURRED. FURTHERMORE, The Popcorn Factory®, INC.S' AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREUNDER WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF RECOVERY SHALL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO PARTICIPANT UNDER THIS AGREEMENT.
PARTICIPANT agrees to indemnify, defend and hold harmless The Popcorn Factory®, INC., its parent company, subsidiaries, affiliates, successors and assigns and their respective officers, directors, shareholders and employees, from and against any and all losses, liabilities, damages, actions, claims, expenses and costs including, without limitation, reasonable attorneys' fees, which result or arise from or are based on (i) the negligence of PARTICIPANT, its agents, servants and/or employees, (ii) PARTICIPANT'S breach of this Agreement or any of the terms hereunder, (iii) any misrepresentation of a representation or warranty, or breach of a covenant or agreement made by PARTICIPANT herein, or in the Enrollment Application, (iv) any claim that The Popcorn Factory®, INC.S' use of PARTICIPANT'S Marks infringe on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, or (v) any claim related to PARTICIPANT'S Web Site, including, without limitation, content therein not contributed directly by The Popcorn Factory®, INC.
12. Independent Parties:
Nothing contained herein shall imply any partnership, joint venture or agency relationship between the Parties and neither Party shall have the power to obligate or bind the other in any manner whatsoever, except to the extent herein specifically provided.
13. Binding Effect; Benefit:
This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any person or entity other than the Parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
If any provision of this Agreement shall be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement shall not be affected and shall remain in full force and effect.
Any notices required or permitted under this Agreement shall be sent electronically to you at your Web Site, or to The Popcorn Factory®, INC. at www.ThePopcornFactory.com and shall be deemed duly made and received when sent.
16. Force Majeure:
Except as otherwise expressly provided in this Agreement, The Popcorn Factory®, INC. shall not be liable for any breach of this Agreement or for any delay or failure of performance resulting from any cause beyond such Party's reasonable control, including without limitation, the weather, strikes or labor disputes, war, terrorist acts, riots or civil disturbances, government regulations, acts of civil or military authorities, or acts of God.
17. Entire Agreement:
This Agreement constitutes
(a) the binding agreement between the Parties;
(b) represents the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements; and
(c) may not be modified or amended except in writing signed the Parties. Notwithstanding anything to the contrary contained herein, The Popcorn Factory®, INC. may modify and change any of the terms and conditions of this Agreement, at any time in its sole discretion. PARTICIPANT will be notified by E-mail. Modifications and changes may include, without limitation, changes in the scope of available commission fees and payment procedures. If any modification or change is unacceptable to PARTICIPANT, PARTICIPANT'S only recourse is to terminate this Agreement. Your continued participation in the Program following the sending of the above E-mail, or a new agreement, will constitute binding acceptance of the modification or change.
18. Governing Law:
This Agreement shall be governed by, and construed in accordance with the laws of the State of New York without regard to conflicts of law principles thereof.
19. Arbitration; Venue;
Each Party hereby agrees to submit to binding arbitration in Garden City, New York, all disputes or controversies arising out of or in conjunction with this Agreement in accordance with the commercial arbitration rules of the American Arbitration Association (AAA) then in effect and judgment upon the award shall be final and unappealable and may be entered in any court having jurisdiction thereof. If the AAA does not have an office in Garden City, New York, then the arbitration shall be held in an office of the AAA Nassau County and, if none exists, then at an AAA office in New York, New York. Nothing contained herein shall, however, be construed to limit or preclude The Popcorn Factory®, INC. from bringing any action in any court of competent jurisdiction for injunctive or other provisional relief as The Popcorn Factory®, INC. may deem to be necessary or appropriate against conduct or threatened conduct by PARTICIPANT. Venue for purposes of any action brought in connection with or arising out of this Agreement shall be conclusively presumed to be in the State of New York, County of Nassau and the Parties hereby irrevocably consent to jurisdiction in the New York State courts and the U.S. Federal courts in said state and county.
20. INDEPENDENT INVESTIGATION.
PARTICIPANT ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND AGREES TO ALL OF ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT The Popcorn Factory®, INC. MAY AT ANY TIME, DIRECTLY OR INDIRECTLY, SOLICIT CUSTOMER REFERRALS AND ENTER INTO SIMILAR AGREEMENTS ON TERMS THAT MAY BE THE SAME, SIMILAR OR DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR ENTER INTO AN AGREEMENT WITH COMPETITORS OF PARTICIPANT, OR MAY OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH PARTICIPANT'S WEB SITE. PARTICIPANT HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE TRANSACTIONS CONTEMPLATED HEREUNDER AND IT IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
21. NO GUARANTEE.
The Popcorn Factory®, INC. MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH REFERENCE TO THE TRANSACTIONS AND SERVICES CONTEMPLATED HEREUNDER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF PERFORMANCE, DEALING, OR TRADE USAGE. IN ADDITION, The Popcorn Factory®, INC. MAKES NO REPRESENTATION THAT THE OPERATION OF The Popcorn Factory®, INC.S' WEB SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND The Popcorn Factory®, INC. WILL NOT BE LIABLE FOR ANY CONSEQUENCES WHATSOEVER OF ANY INTERRUPTIONS OR ERRORS. FURTHERMORE, The Popcorn Factory®, INC. MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE AMOUNT OF COMMISSIONS TO BE PAID TO PARTICIPANT HEREUNDER, OR AS TO ANY ASSET OR PROFITABILITY, IF ANY, OR OTHER BENEFIT PARTICIPANT MAY DERIVE HEREUNDER, IF ANY.
Sections 4, 5, 6, 9, 10, 11, 18, 19, 20 and 21 of this Agreement shall survive the termination or expiration of this Agreement.