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.com, 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 New Registered Customer (defined below) and 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.

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 the following URLSs www.shutterfly.com (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 be no less favorable than the position, prominence and nature accorded to other merchants, 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 pictures digitally or sending film 2. getting creative with pictures by adding borders, cropping, or removing red-eye 3. ordering prints, cards, and frames Affiliate agrees to promote Shutterfly as a place to print and share pictures online. Affiliate agrees not to promote Shutterfly as an image hosting or serving service. 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 Within thirty (30) days after the end of each calendar month during the term of this Agreement (subject to minimum commission requirements set forth in Section 3.5 below), Shutterfly shall pay Affiliate six dollars ($6.00) for each New Customer (defined below).

3.2 Within thirty (30) days after the end of each calendar month during the term of this Agreement (subject to minimum commission requirements set for the in section 3.5 below), Shutterfly shall pay Affiliate a 10% share of print product revenue generated by New Customers for one-year (“Revenue Share”). Print product revenue means the amounts actually received by Shutterfly for print products delivered less prepaid print plans, 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. If a print product order is placed through a different Qualifying Link than the registration Qualifying Link then the Affiliate hosting the print product order Qualifying Link is paid. Purchases made where a customer is not signed into Shutterfly (e.g. Shutterfly Pro Galleries or Click for prints services) shall not be eligible for Revenue Share.

3.3 For purposes of this Agreement, “New Customer” means an end user who (a) Registers as a member on www.shutterfly.com through a Qualifying Link (defined below) (b) is not then and has not been a registered member of Shutterfly (c) has entered new and unique information in each of the first name, last name, and email address fields on Shutterfly’s registration form (d) accepts the Shutterfly site terms and conditions and (e) places a print product order within 45 days of registering at Shutterfly. If a print product order is placed through a different Qualifying Link than the registration Qualifying Link then the Affiliate hosting the print product order Qualifying Link is paid.

3.4 A “Qualifying Link” is a link from Affiliate’s site to www.shutterfly.com using one of the Required URLs or any other URL provided by Shutterfly for use in The LinkShare Network™.

3.5 If the commission payable to Affiliate for any calendar month is less than twenty-five dollars ($25), Shutterfly will hold payment until the total amount due and accruing over subsequent calendar months is at least twenty-five dollars ($25) or (if earlier) until this Agreement or the Engagement is terminated.

3.6 Shutterfly shall have the sole right and responsibility for processing all registrations of end users. Affiliate acknowledges that all agreements relating to the registration of end users shall be between Shutterfly and the end user and that Shutterfly has the right to reject any registrations that do not comply with any requirements it may establish.

3.7. All determinations of Qualifying Links and New Customers and whether a commission is payable will be made by Shutterfly in good faith and will, absent manifest error, be final and binding on both Shutterfly and Affiliate.

4. Ownership and Licenses.
4.1. Each party owns and shall retain all right, title and interest in its names, logos, images, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, images, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future. Each party may not modify the other party’s logos or images or other materials in any way without the other party’s prior written consent. Affiliate acknowledges that Shutterfly’s logos and the goodwill associated therewith are valuable properties belonging to Shutterfly and that all rights thereto are and shall remain the sole and exclusive property of Shutterfly. Affiliate agrees to use Shutterfly’s logos in a manner which will protect Shutterfly’s rights and goodwill therein. Affiliate agrees that it will do nothing inconsistent with Shutterfly’s ownership rights and that all uses of the same shall inure to the sole benefit of and be on behalf of Shutterfly.

4.2. Shutterfly grants Affiliate a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, images, trademarks, service marks, trade dress and proprietary technology which Shutterfly provides to Affiliate hereunder or during the registration process in The LinkShare Network™, on Affiliate’s site solely for the purpose of creating and maintaining links from Affiliate’s site to Shutterfly’s site during the term of this Agreement. 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 on Shutterfly’s partner page, 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. The term of this Agreement shall begin with formation of the Engagement.

5.2. Either party may terminate the Engagement at any time by deleting their acceptance of the Engagement through The LinkShare Network™. Either party may terminate this Agreement at any time, for any reason, provided that they provide at least five days’ prior written notice of such termination to the other party and The LinkShare Network™. Termination of this Agreement shall also terminate any outstanding Engagements. Sections 2.2, 4.1, 6.3, 7 and 8 shall survive termination of this Agreement.

5.3 Upon termination of this Agreement for any reason, Affiliate will immediately cease use of, and remove from its site, all links to Shutterfly’s site, and all Shutterfly trademarks, names, logos, images, service marks, trade address and copyrights, and all other materials provided by or on behalf of Shutterfly to Affiliate pursuant hereto or in connection with the Program.

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 EXCEPT FOR THE ABOVE REPRESENTATIONS OR WARRANTIES, SHUTTERFLY MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS, MERCHANTABILITY, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, SHUTTERFLY MAKES NO REPRESENTATION THAT THE OPERATION OF ITS WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, AND SHUTTERFLY WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

7. LinkShare Required Provisions.
7.1. Affiliate agrees to indemnify The LinkShare Network™ and Shutterfly for liabilities, damages and expenses (including reasonable attorneys’ fees) arising from third party claims based on Affiliate’s acts or omissions under or related to this Agreement.

7.2. 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. Limitation of Liability.
8.1. In no event shall Shutterfly be liable to Affiliate for any indirect, special, exemplary, consequential or incidental damages arising out of or in connection with this Agreement or the Program, even if informed of the possibility of such damages. Shutterfly’s aggregate liability arising with respect to this Agreement and the Program will not exceed the total commission fees paid or payable to Affiliate under this Agreement.

8.2. 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 direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.

9. General.
9.1. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon either party. Each party shall bear its own costs and expenses in performing this Agreement.

9.2. The parties agree that The LinkShare Network™ and LinkShare Corporation are intended third party beneficiaries under this Agreement.

9.3. This Agreement has been made in and shall be interpreted, construed and enforced in all respects in accordance with the laws of the state of California headquarters without reference to conflict of law principles. Any action to enforce this Agreement shall be brought in the federal or state courts located in California. Affiliate shall send any official correspondence via registered mail to Shutterfly’s headquarters to the attention of Shutterfly’s legal department.

9.4 The failure of either party to require or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance.

9.5. This Agreement constitutes the entire agreement, and supersedes any and all prior or contemporaneous agreements of the parties, with respect to the subject matter hereof. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by the duly authorized representatives of both parties.

9.6. Neither party shall assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement without the other party’s consent to any person or entity which acquires or succeeds to all or substantially all of such party’s business assets. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns.

9.7. In the event that any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the extent permissible and the remainder of this Agreement will remain in full force and effect.