Terms & Conditions

This Agreement contains the complete terms and conditions that apply to your participation in the Picaboo Affiliate Program (the “Program”), and the establishment of links from your affiliate web site to our web site, “Picaboo.com.”

Affiliate agreement

This Affiliate Agreement (“Agreement”) is made between Picaboo Corporation (“Picaboo”) and (“Affiliate”).

Background

Affiliate and Picaboo are each enrolled in The LinkShare Network™.
Affiliate and Picaboo each desire to establish the general terms and conditions which shall govern advertising and commission arrangements between Affiliate and Picaboo 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, Picaboo 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, Picaboo 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 Picaboo for an Offer or an Engagement. Affiliate agrees to promptly implement any request from Picaboo to remove, alter or modify any graphic or banner ad submitted by Picaboo 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 Picaboo’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 Picaboo’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 Picaboo, Picaboo’s site, any of Picaboo’s products or services, or Picaboo’s site policies, except as expressly authorized by Picaboo. Affiliate agrees to represent Picaboo’s services in a manner consistent with all Picaboo.com site messaging:

2.3. Affiliate is responsible for notifying Picaboo and The LinkShare Network™ of any malfunctioning of the Required URLs or other problems with Affiliate’s participation in the Engagement. Picaboo will respond promptly to all concerns upon notification by Affiliate.

3. Commissions.
3.1. Picaboo agrees to pay Affiliate the commission specified in the Engagement a) if a visitor to Picaboo’s site downloads Picaboo software and creates a new valid account (a “Registered User”), b) if Picaboo sells to a visitor of Picaboo’s site (a “Customer”) photo book(s). Both Registered Users and Customers must be the subject of the Engagement and have accessed Picaboo’s site and created an account or purchased the photo book(s) via a Qualifying Link.
3.2. A “Qualifying Link” is a link from the Affiliate to Picaboo’s site using one of the Required URLs or any other URL provided by Picaboo for use in The LinkShare Network™ if it is the last link to the Picaboo’s site that the Registered User or Customer uses during a Session where a commissionable event occurs.
3.3. A “Session” is the period of time beginning from a Registered User or Customer’s initial contact with Picaboo’s site via a link from the Affiliate’s site and terminating when the Customer either returns to the Picaboo’s site via a link from a site other than Affiliate’s site or the Engagement expires or is terminated.
3.4. Picaboo shall pay Affiliate the following commissions:

Photo book product revenue means the amounts actually received by Picaboo for photo book products delivered less promotions and other discounts, fees paid to credit card processing companies, charge-backs, rebates or credits, amounts collected for sales taxes or their applicable taxes or duties, and shipping and handling costs.

3.5. For purposes of this Agreement, “New Registered User” means a visitor to Picaboo’s site that has followed a Qualifying Link and successfully completes the account creation form after downloading the Picaboo sofwtare.
3.6. For purposes of this Agreement, “New Customer” means a Registered User who places their first photo book product order within 90 days of clicking on Qualifying Link. “Repeat Order” means a Customer who places subsequent photo book product order(s) within 90 days clicking on Qualifying Link.
3.7. Picaboo 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 Picaboo’s behalf.
3.8. Picaboo 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 Picaboo 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 Picaboo and Affiliate. Prices for the products will be set solely by Picaboo 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. Picaboo 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 Picaboo’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 Picaboo 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 Picaboo’s site to Affiliate’s site. Picaboo 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 Picaboo’s site or read, intercept, record, redirect, interpret, or fill in the contents of Picaboo’s electronic registration form submitted to Picaboo by any person or entity.
6.3. Search Terms. Affiliate will represent themselves on search engine results only as an “Affiliate of Picaboo”. Notwithstanding the foregoing, Affiliate shall not bid above Picaboo (not higher than $0.13) on search terms that include the word “PICABOO” or certain variations thereof for use in search engines, such as Overture, Google, and MSN. Specifically, this policy prohibits Affiliate from bidding above Picaboo on Picaboo’s trademark, “Picaboo”, and any keyword string or variations of Picaboo’s trademark (collectively “Picaboo Mark”) that includes this term. For clarity, Picaboo Marks are defined to include, but not limited to:

Domain Name. Affiliate shall not use Picaboo’s domain name or display URL (i.e., www.Picaboo.com). Specially, this policy prohibits Affiliates from using variations of Picaboo’s domain name or display URL without the consent of Picaboo (i.e., www.Picaboo-deals.com). In addition, Affiliate shall not bid on Picaboo competitor’s trademark terms (i.e., Shutterfly, Snapfish, Kodak EasyShare Gallery).
Creative. Picaboo shall review Affiliate’s creative if Affiliate bids on Picaboo Marks. Affiliate is required to have written approval from Picaboo.
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 Picaboo’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 Picaboo, 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 Picaboo 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.
6.5. Affiliate shall not use “Picaboo” 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 PICABOOABILITY 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. Picaboo 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. Picaboo 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. Picaboo 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 Picaboo or Affiliate’s computer. LinkShare shall not be responsible for provision of any communications facilities or the costs associated with such communications.
8.5. Picaboo and Affiliate agree that LinkShare is an intended third party beneficiary.


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 Picaboo’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 Picaboo’s headquarters to the attention of Picaboo’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.