Thank you (“Affiliate”, “you”, “your”) for participating in ProductionNext, Inc.’s (“Company") affiliate program (“Affiliate Program”). These Terms and Conditions (“Agreement”) govern your participation in the Affiliate Program. If you are viewing this on your mobile device, you can also view this Agreement via a web browser at https://beta.productionnext.com/affiliate-terms-and-conditions. Company and Affiliate are each referred to herein as a “Party” and collectively, as the “Parties”.
BEFORE PARTICIPATING IN THE AFFILIATE PROGRAM, PLEASE READ THIS AGREEMENT CAREFULLY. BY CHECKING THE BOX ON THE APPLICATION FORM SAYING YOU AGREE TO THIS AGREEMENT AND THEN CLICKING ON “OK”, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN PLEASE DO NOT CLICK “OK,” IN WHICH CASE YOU WILL NOT BE ABLE TO PARTICIPATE IN THE AFFILIATE PROGRAM.
THIS AGREEMENT WILL BE EFFECTIVE AND AFFILIATE WILL BE A PARTICIPANT IN THE AFFILIATE PROGRAM UPON BOTH: (A) AFFILIATE’S CHECKING THE BOX ON THE APPLICATION FORM REFERENCED ABOVE; AND (B) COMPANY’S ACCEPTANCE OF AFFILIATE’S PARTICIPATION, AS EVIDENCED BY COMPANY’S NOTIFICATION TO AFFILIATE AFTER AFFILIATE’S SUBMISSION OF THE APPLICATION FORM.
IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS DOING SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE REQUISITE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES AND ALL USERS WHO PARTICIPATE IN THE AFFILIATE PROGRAM TO THIS AGREEMENT, IN WHICH CASE THE TERM “AFFILIATE” SHALL REFER TO SUCH ENTITY, ITS AFFILIATES AND USERS ASSOCIATED WITH IT.
- Company Approval. All Affiliates are subject to the prior written approval of Company.
- Referral Methods. Affiliate will be able to access, from Company, certain approved Referral Methods, such as custom invitation codes or URLs (“Referral Methods”) which will be unique to Affiliate, and will allow Affiliate to be paid for qualifying customer referrals. Commissions under Section 3.1 will only be paid on sales that are made when Affiliate and the applicable customer properly use qualified Referral Methods in compliance with this Agreement and all applicable Company policies and rules. For clarity, Referral Methods may consist of custom invitation code(s) unique to Affiliate, and in such case, in addition to being otherwise used by Affiliate in accordance with this Agreement and all applicable Company policies and rules, must be inputted properly by the applicable customer for Affiliate to receive any applicable commissions due under Section 3.1 (Referral Methods used in compliance with this Section 3.1 are “Properly Used” Links Assets). Properly Used links are the sole responsibility of the Affiliate.
- For the first five (5) unique visitors to the Company website from a Properly Used Referral Method to register for Company’s free beta service (“Free Service”), Affiliate will receive a commission of $5.00 for each such registration. For each unique visitor to the Company website from a Properly Used Referral Method to register for Company’s paid beta service (“Paid Service”), Affiliate will receive a commission of $10.00 for each such registration. Thus, if a properly referred visitor first signs up for the Free Service and later converts to the Paid Service, Affiliate will be due a total of $15 - $5 for the initial Free Service signup and $10 for the later Paid Service signup, provided, however that Company will only track whether Affiliate’s Free Service referrals convert to the Paid Service for ninety (90) days from the date of the Free Service signup, after which Affiliate will no longer be eligible to receive the additional $10 commission on that customer. If the user later converts to the Paid Service, Affiliate will no longer receive the additional $10 commission for such user. Word of mouth referrals will not result in a commission. For each such user that signs up for the Paid Service, Affiliate will “unlock” the ability to be eligible for commissions on five (5) additional Free Service signups on the same terms as the first sentence of this paragraph. Company may also, in its sole discretion, elect to offer additional commissions or other payments (“Additional Payments”) to Affiliate under this Agreement. In such event Company will make reasonable attempts to notify Affiliate of such other payments and all Additional Payments will be processed in accordance with this Agreement, subject to any new/additional terms of which Company may notify Affiliate in connection therewith.
- Commissions payable to Affiliate shall be paid no later than five (5) business days after the end of the month in which the applicable visitor performed the applicable commission-generating signup. Payment will be issued via PayPal, with any service fees being passed on to the Affiliate. Minimum payment threshold is $10. If Affiliate’s accumulated commissions in any calendar month are less than $10, the balance will be held by Company (without interest) until such time as the balance reaches the $10 threshold. Accumulated but unpaid commissions will be paid to Affiliate via PayPal upon termination or expiration of this Agreement.
- No later than five (5) business days after the end of each calendar month during the term of this Agreement (which report may be issued concurrently with any payment due under Section 3.2), the Company shall issue to Affiliate a summary report detailing, among other things, how many Paid Service and Free Service accounts recruited by Affiliate in accordance with Section 3.1, and the number of unpaid but eligible Free Service accounts that will result in payments if and when Affiliate recruits paying customers. Each such summary report shall constitute Company’s confidential information which may not be used by Affiliate for any purpose other than enforcing its rights under this Agreement and may not be disclosed by Affiliate other than as required by law or legal process.
- Company shall have the right to deduct against future commissions payable to Affiliate any amounts owed by Affiliate to Company under this Agreement (such as PayPal service fees).
- Company will be solely responsible for processing every registration by a customer via the Referral Methods. Affiliates are not authorized to collect payments or sell any Company services (“Company Services”) as a "reseller" and no "resale" rights are granted in any way. Company is solely responsible for all customer service inquiries.
- Customers who register for Company Services through the Affiliate Program will be deemed to be customers of Company. Accordingly, all rules, policies, and operating procedures concerning Company Services will apply to those customers. Company may change its policies and operating procedures at any time. Prices of Company Services may vary from time to time. Company will solely determine the price paid by the customer.
- Qualifying Sites. Company reserves the right to refuse entry into the Affiliate Program based on site content. Sites that do not qualify for the Affiliate Program include sites which:
- Promote sexually explicit materials;
- Promote violence;
- Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
- Promote illegal activities;
- List coupon codes or discounts that were not officially provided to them by Company. Affiliate may not promote Company coupon codes Affiliate found elsewhere;
- Infringe, violate or assist others to infringe or violate any copyright, trademark, or other intellectual property rights of Company or any third party; and
- Are otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to Company in its sole discretion.
- Permitted Usage. Affiliates are solely permitted to use the Referral Methods in accordance with the Referral Method guidelines and policies provided to Affiliate by Company from time to time.
- Prohibited Usage. The following activities are prohibited and are grounds for immediate termination of the Affiliate account, without limitation to Company’s other rights and remedies:
- Affiliates may not use any Company logo, trademark, trade name, service name or any Company imagery, content, branding or any other Company materials (“Company Items”) in any way which indicates or implies the Affiliate is officially affiliated or partnered with Company. Notwithstanding the foregoing, Affiliate may use Company items to the extent included in any Referral Methods or other assets provided to Affiliate hereunder and Properly Used in compliance with this Agreement and all applicable Company brand guidelines and instructions, and also to the extent expressly authorized by Company in an advance writing.
- Affiliates may not use the term "ProductionNext” or any variation thereof in the URL of any site owned or controlled by such Affiliate, or register or purchase any domains containing any such variations.
- Affiliates may not market promotions that were not provided to them personally by Company. Affiliate may not market Company promotions or Referral Methods Affiliate found anywhere except as provided in Section 2.
- Affiliates may not host or promote "coupon stacking" sites where customers may combine coupons to receive additional discounts.
Company reserves the right, at any time, to review Affiliate’s placement and approve the use of the Referral Methods and require that Affiliate change the placement or use to comply with Company’s guidelines and policies.
The maintenance and the updating of Affiliate’s site will be Affiliate’s sole responsibility. Company may monitor Affiliate’s site to ensure that it is up-to-date and to notify Affiliate of any changes that Company requires.
It is Affiliate’s sole responsibility to follow all applicable intellectual property and other laws that apply to Affiliate’s site. Affiliate must have express permission to use any person's copyrighted material. Company will not be responsible (and Affiliate will be solely responsible) if Affiliate uses another person's copyrighted material or other intellectual property in violation of the law or any third-party rights.
- Anti-Spam Policy.
- Company considers the following “spam” and Affiliates may not engage in any such activities, either directly or indirectly:
- Any activities that Company considers, in its sole discretion, to be an abuse of internet functionalities or services, in violation of applicable terms of service, or in violation of applicable laws, rules or regulations;
- Email messages addressed to a recipient with whom the sender does not have an existing business or personal relationship or is not sent at the request of, or with the express consent of, the recipient through an opt-in subscription;
- Messages or comments posted to internet forums, Twitter, Facebook, message boards or the like that are off-topic, cross-posted to unrelated groups, posted in excessive volume, or posted against the applicable website or web service rules or terms;
- Content posted on websites or web services for the sole purpose of keyword spamming;
- Solicitations sent to groups or individuals via messaging services; and
- Off-line activities analogous to the foregoing, including distributing flyers or leaflets on private property or where prohibited by applicable rules, regulations, or laws.
- Company may undertake, at its sole discretion and with or without prior notice, the following enforcement actions for Affiliate’s violation of this Section 8:
- Upon becoming aware of a potential violation, Company may investigate the complaint, and if necessary, may then terminate the applicable Affiliate account(s) and/or this Agreement.
- To report a violation of the Company Anti-Spam Policy, please contact the Company at firstname.lastname@example.org.
- Company considers the following “spam” and Affiliates may not engage in any such activities, either directly or indirectly:
- User Communications. Under this Agreement, Affiliate consents to receive communications from Company electronically. Affiliate agrees that all agreements, notices, disclosures, and other communications that Company provides to Affiliate electronically satisfy any legal requirement that such communications be in writing.
- Notice. Notices to Company must be sent to 617 Stardust Lane, Los Altos, California 94024. Such notices must be sent via internationally recognized overnight courier and are deemed given when received. Notices to Affiliate may be sent to the email address associated with Affiliate’s account, and are deemed given when sent.
- Violations; Termination. Affiliate agrees that Company, in its sole discretion and for any or no reason, may terminate Affiliate’s account, and remove and discard all or any part of Affiliate’s account at any time. Affiliate agrees that any termination of Affiliate’s access to its Affiliate account or portion thereof may be effected without prior notice, and Affiliate agrees that Company shall not be liable to Affiliate or any third party for any such termination. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of Affiliate’s activities under this Agreement may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Company may have at law or in equity.
- Representations and Warranties. Affiliate represents and warrants that: (a) this Agreement has been duly and validly executed and delivered by Affiliate and constitutes Affiliate’s legal, valid, and binding obligation, enforceable against Affiliate in accordance with its terms; (b) Affiliate has the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform its obligations under this Agreement, without the approval or consent of any other party; and (c) Affiliate has sufficient right, title, and interest in and to the rights granted to Company in this Agreement.
- Disclaimer; Indemnification; Hold Harmless. COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE AFFILIATE PROGRAM OR AN AFFILIATE'S POTENTIAL TO EARN INCOME FROM THE AFFILIATE PROGRAM. IN ADDITION, COMPANY MAKES NO REPRESENTATION THAT THE OPERATION OF COMPANY’S WEBSITE OR WEB SERVICES OR THE REFERRAL METHODS WILL BE UNINTERRUPTED OR ERROR-FREE, AND COMPANY WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
Affiliate agrees to indemnify and hold Company and its affiliated companies, and each of their directors, officers, employees, contractors, suppliers and partners (“Company Parties”), harmless from any claims, losses, damages, liabilities, costs and expenses, including attorney’s fees, arising out of or relating to Affiliate’s breach of this Agreement (or any representations or warranties herein) or violation of the rights of any other person or entity, except solely to the extent any of the foregoing arise out of the willful misconduct or gross negligence of Company. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which Affiliate is required to indemnify Company and Affiliate agrees to cooperate with the Company’s defense of these claims.
- Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL ANY OF THE COMPANY PARTIES BE LIABLE TO AFFILIATE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT ARISE OUT OF, RELATE TO OR RESULT FROM THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF COMPANY OR A COMPANY REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO AFFILIATE. IN SUCH CASES, COMPANY’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
IN NO EVENT SHALL THE COMPANY PARTIES’ TOTAL COLLECTIVE LIABILITY TO AFFILIATE FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE AFFILIATE PROGRAM EXCEED THE AMOUNT COMPANY HAS PAID OR UNDISPUTEDLY OWES AFFILIATE UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE EVENTS THAT GAVE RISE TO THE APPLICABLE CLAIMS OR FIFTY (50) U.S. DOLLARS, WHICHEVER IS GREATER.
- Independent Contractor. The Company and Affiliate agree that Affiliate is and shall remain an independent contractor and is not and shall not be deemed to be an employee, joint venturer, partner, or franchisee of the Company for any purpose whatsoever. Affiliate shall be exclusively responsible for the manner in which it performs its duties under this Agreement. Neither Affiliate nor its employees is or shall be an employee or agent of the Company. Affiliate does not have, and shall not represent itself as having, any right or authority to obligate or bind the Company in any manner whatsoever.
- Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. Affiliate agrees that any action arising out of or relating to this Agreement shall be filed only in the state or federal courts in and for San Francisco, California and Affiliate hereby consents and submits to the personal jurisdiction of such courts for the purposes of litigating any such action. Notwithstanding anything to the contrary, Company may apply to any court of competent jurisdiction for injunctive or other equitable relief.
- Waiver. A provision of this Agreement may be waived only by a written instrument executed by the Party entitled to the benefit of such provision. The failure of any Party at any time to require performance of any provision of this Agreement shall in no manner affect such Party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
- Entire Agreement. This Agreement embodies the final, complete and exclusive statement of the terms of the Parties’ agreement with respect to the subject matter hereof and supersedes any prior or contemporaneous representations, descriptions, courses of dealings or agreements as to such subject matter, including agreements entered into in anticipation of this Agreement. No amendment, modification or waiver are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both Parties.
- Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
- Assignment. This Agreement and any rights and licenses granted hereunder, may not be transferred or assigned by Affiliate, but may be assigned by Company without restriction.
- Survival. Sections 6 and including 15 will survive any termination of this Agreement.
- Headings. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof.