Affiliate Application Form

Affiliate Agreement

This Agreement (the "Agreement") contains the complete terms and conditions that apply to your participation as an affiliate (an "Affiliate") in the Red Queen Software Affiliate Program and the establishment of links from your affiliate website to our website, currently found at URL www.redqueensoftware.com. As used in this Agreement, "we", "us", "our", or "Red Queen Software" means Red Queen Software, Inc., an Oregon corporation. "You" or "your" means the applicant, as identified in your application to Red Queen Software. "Product" means any item offered for sale by us on the Red Queen Software, Inc. website. "Site or "Web site" means either our website or yours depending on the context in which it is used.

THIS IS A LEGAL AND CONTRACTUALLY BINDING AGREEMENT BETWEEN YOU AND RED QUEEN SOFTWARE, INC. YOU INDICATE YOUR WILLINGNESS TO BE BOUND BY THIS AGREEMENT BY COMPLETING THE ONLINE APPLICATION AND CLICKING ON THE "SUBMIT" BUTTON AT THE BOTTOM OF THE APPLICATION. THIS AGREEMENT WILL TAKE EFFECT IF AND WHEN RED QUEEN SOFTWARE, INC. REVIEWS AND ACCEPTS YOUR APPLICATION AND GIVES YOU NOTICE OF ACCEPTANCE. BY SUBMITTING YOUR APPLICATION, YOU CERTIFY THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH HEREIN, AND THAT YOU ARE AUTHORIZED TO SUBMIT THIS APPLICATION.

1. Enrollment in the Program. To apply for enrollment, you must submit a complete Affiliate Program Application via our website and register with our Electronic Software Delivery (ESD) agent Element 5, Inc./ Element 5, AG (Element5). We will evaluate your application and will notify you of our acceptance or rejection of your application. We may reject your application in our sole discretion for any reason, including but not limited to a determination that your site is unsuitable for or incompatible with the Red Queen Software, Inc. Affiliate Program; that your site incorporates images or content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable; or that your site incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights. We also reserve the right to terminate this Agreement in the event that any such content is incorporated on your site after acceptance of your application and the commencement of the term of this Agreement. DEALERS, DISTRIBUTORS, OR OTHER PARTIES WHO PURCHASE GOODS FROM RED QUEEN SOFTWARE, INC. TO RE-SELL TO OTHER PARTIES ARE ALLOWED AS MEMBERS OF THE PROGRAM SEPARATE FROM THE TERMS AND AGREEMENTS SET FORTH IN THE OTHER AGREEMENTS. ANY CONFLICTS BETWEEN AGREEMENTS WILL NOT ALTER OR VOID THIS AGREEMENT.

2. Utilizing Red Queen Software, Inc.’s Links on Your Site. As the host of an affiliate site, you will be provided a variety of graphical and textual links, banner advertisements and button links to our site containing Red Queen Software’s logo and words identifying Red Queen Software (each of these links sometimes being referred to herein as "Links", or individually as a "Link") which, subject to the terms and conditions hereof, you may display on your site. You agree that in using the Link or Links, you will cooperate fully with us in order to establish and maintain such Link or Links. You may place and use any Link in as many areas on your site as you wish, subject only to the limitations set forth below. You agree to display such Links and graphic images prominently throughout your site. You also agree that you shall use the Links only in order to link to our site and to promote your ability to do so pursuant to this Agreement. You agree that you will not use our marks or links on any site other than the site you specified in your application to the Affiliate Program or another site we approve following your acceptance into the Program. If you incorporate our marks or links into a site other than the sites approved by us, this Agreement is void. You agree that you shall not present the Links or any images comprising the Links in combination with any other name or mark, in connection with your own goods or services, or in any manner that may suggest or imply that you or your goods or services are supplied by, sponsored by, endorsed by or affiliated with us. You may not alter or change the images provided by us without our express prior written consent. You may not create links to our site other than Links provided by or approved by us, and you may not use the Links in any way that may alter the look, feel or functionality of our site. We will provide all information necessary to allow you to make appropriate Links from your site to our site. All Links must be approved by us. We have the right in our sole discretion to monitor your site at any time and from time to time to determine if you are in compliance with the terms of the Agreement.

3. Order Processing. Element5 will process orders placed by customers who follow the Links from your site to the unique Red Queen Software landing site that we have constructed for your use. We reserve the right to reject or withhold acceptance or fulfillment of orders for any reason, including but not limited to the failure of any person or entity making an order to comply with our terms and conditions of sale, that may be revised periodically. Element5 will be solely responsible for all aspects of order processing and fulfillment. Element5 will track the volume and amount of sales generated using the Links from your site to ours. To permit accurate tracking and reporting, you must ensure that the Links between your site and our site are properly formatted.

4. Commissions. Only Products that are (i) sold by us, (ii) purchased by a user linking to our site from your site pursuant to a Link ("Linked User"), (iii) shipped by us, and (iv) for which we have received full payment will qualify for a commission ("Commission") (each a "Qualifying Purchase" and collectively, "Qualifying Purchases"). No Commission will be paid if the visitor to our site cannot be tracked by our system or if the visitor to our site later accesses our site by a means other than the use of the Link. You are due a Commission only if your site is the Affiliated Site from which the purchaser most recently linked to our site. Commission rates ("Commission Rates") will be based on the aggregate amount actually paid to us for Qualifying Purchases of the Products for all sales, excluding amounts collected by us for sales taxes, duties, gift-wrapping, shipping, handling, and similar charges, amounts due to credit card fraud and bad debt, and credits for returned goods ("Net Sales"). Commission Rates are as follows:

Twenty percent (20%) of the Price received by Red Queen Software for Qualifying Software Products.

5. Commission Payment. Subject to Section 4 above, Element5 will pay you Commissions on a monthly basis. Within approximately 30 days following the end of each calendar month during which this Agreement is in place, Element5 will either send you a check or electronically transfer the Commissions you earned on Net Sales in the preceding month, as well as a report summarizing the sales activity on which Commissions are payable. If total Commissions payable to you for any period are less that $100.00, Element5 will hold those Commissions until the total amount due is at least equal to $100.00. If returns, refunds or other events require recalculation of Net Sales or the amount of bonuses properly payable, for a period in which Commissions have already been paid, we will offset from Bonuses and Commissions payable in succeeding months by the amount which Commissions or Bonuses are reduced by such recalculation. If there are no subsequent Commissions payable, we will send you an invoice for reimbursement of the overpaid Commissions, and you agree to pay any such invoice within 30 days of receipt of such invoice.

6. Policies and Pricing. Customers who buy Product(s) through the Affiliate Program are customers of Red Queen Software, Inc., and all purchases and related transactions are subject to Red Queen Software, Inc.’s terms and conditions of sales, rules, policies, and operating procedures, all of which Red Queen Software, Inc. may adopt and modify in its sole discretion from time to time. You do not have any authority to make any sale or representation or to act a distributor, dealer, or reseller on behalf of Red Queen Software, Inc. or to bind Red Queen Software, Inc. in any way, and you agree that you shall not do or hold yourself out as having authority to do either. Accordingly, you may not post Red Queen Software, Inc.’s prices for its Products, its policies or terms, its availability information, or similar information on your site, unless specifically provided to you in writing by Red Queen Software, and/or by our giving you access to the Red Queen Software, Inc. datafeed. Your datafeed access is revocable at any time, for any reason, at the sole discretion of Red Queen Software.

7. Use of Red Queen Software Logos and Trademarks.

1. We grant you a non-exclusive, non-transferable, revocable right to (i) access our site through links solely in accordance with the terms of the agreement and (ii) solely in accordance with such links, to use the Red Queen Software, Inc. trademark and logo and similar identifying material relating to us (but only in the form(s) they are provided to you) (collectively the "licensed materials"), for the sole purpose of linking your site to our site, where your users can purchase Red Queen Software, Inc. products. You may not alter, modify, or change the licensed materials in any way. You are only entitled to use the licensed materials to the extent that you are a member in good standing of the affiliate program.
   
2. You shall not make any specific use of any Licensed Materials for purposes other than selling Red Queen Software, Inc. Products on your site for Red Queen Software, Inc., without first submitting a sample of such to us and obtaining the prior written consent of your Affiliate Program Relationship Manager, which consent shall not be unreasonably withheld. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light. We reserve all of our rights in the Licensed Materials and our other proprietary rights. We may revoke your license at any time, by giving you written notice.
   
3. You grant us a non-exclusive license to use your names, titles, logos, trademarks, trade names, and service marks (collectively the "Affiliate Trademarks") to advertise, market, promote and publicize in any manner the Affiliate Program, your participation in the Affiliate Program and to promote Red Queen Software. Red Queen Software shall not be required to use the Affiliate Trademarks or to advertise, market, promote or publicize your site. You hereby represent and warrant that you are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use the Affiliate Trademarks in the manner contemplated herein, and such grant does not or will not (i) breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon you, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
   
4. "Approved Publishers Images" are certain names, marks and images of manufacturers and other third-parties that have authorized Red Queen Software to make their names, marks and images available to you so that you can promote the sale of their products by us in connection with this Agreement. All Approved Publishers Images are the property of their respective owners. You may use only those Approved Publishers Images that Red Queen Software authorizes you to use, and your use of those Approved Publishers Images must at all times comply not only with all requirements of Red Queen Software but also all requirements of the owner(s) of those images. You may not use any Approved Publishers Image, including without limitation any use that involves reproducing, modifying, or displaying an Approved Publishers Image, without the express prior written consent of both Red Queen Software and the owner of that Approved Publishers Image. You may not use any image appearing on a Red Queen Software website other than the Licensed Materials as provided in Section 7A or an Approved Publishers Image for which you have the prior written authorization as provided in this Section 7D. You may use Approved Publishers Images only for the purpose of promoting the sale of the owner’s associated Product(s) by Red Queen Software pursuant to this Agreement and the Affiliate Program. You may not alter or modify any Approved Publishers Image, and you may not use any Approved Publishers Image with any good or service other than the good or service the owner associates with that Image.
   
5. Kodak is not an Approved Publisher. You are prohibited from using, anywhere on or in your website, or in any advertising in any medium, as a Red Queen Software, Inc. Affiliate, (a) any name, (b) any trademark or logo, or (c) any image or name of any Kodak labeled product offered by Red Queen Software, Inc.. If you violate this prohibition, Red Queen Software, Inc. will promptly (x) cancel any right you have to receive anything of value from Red Queen Software, Inc. related to the sale of Kodak labeled products, and (y) terminate the relationship between you and Red Queen Software, Inc. with regard to Kodak labeled products.

8. Responsibility for Your Site. You will be solely responsible for the development, operation and maintenance of your site, for all materials that appear on your site, and for all business you conduct on your site. You shall also be responsible for ensuring that materials posted on your site do not violate or infringe upon copyrights, right of publicity, trademark rights, or other rights of us or any third-party. You are responsible for ensuring that your business and site comply with all applicable laws, regulations, and ordinances, and that your site as well as the materials posted on your site are not defamatory, libelous, false or misleading, or otherwise illegal. You must have express permission to use another party’s copyrighted materials, and you also must have express prior written permission to use another’s name, portrait, voice, or likeness. You are also responsible for the technical operation of your site and all related equipment.

9. Confidentiality. We may disclose to you certain information as a result of your participation as part of the Affiliate Program, which information we consider to be confidential (herein referred to as "Confidential Information"). For purposes of this Agreement, the term "Confidential Information" shall include, but not be limited to, (i) any modifications to the terms and provisions of this Agreement made specifically for you and your site and not generally available to other members of the Affiliate Program, (ii) Website, business and financial information relating to Red Queen Software, Inc., (iii) customer and vendor lists relating to Red Queen Software, Inc., and (iv) pricing and sales information for Red Queen Software, Inc. and any members of the Affiliate Program other than you. Confidential Information shall also include any information that we designate as confidential during the term of this Agreement. You agree not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such Confidential Information is required by law or legal process.

10. Term and Termination. The term of this Agreement will begin upon our acceptance of your Affiliate Program Application and will end when terminated by either party in accordance with this Agreement. Either party may terminate this Agreement at any time, with or without cause, by giving the other written notice of termination (electronic communications such as e-mail shall qualify as written notice). If we terminate this Agreement because you are in breach of a material term hereof, we may withhold Commissions payable to you in an amount equal to the amount by which we believe in good faith that we have been damaged by your breach, including prospective damages and damages resulting from claims by third-parties caused by such breach. If this Agreement is terminated on any other basis, you are entitled to Commissions earned on Net Sales for which payment has been received by us on or before the effective date of termination. All licenses granted herein terminate automatically upon termination of this Agreement, and the licensee of any subject matter shall immediately cease use of any Licensed Materials. In addition, each party may terminate any license in part at any time by giving the other written notice that specified licensed subject matter may no longer be used, or may no longer be used in a particular manner. Without limiting the generality of the foregoing, you agree to remove all Links from your website to our website and to cease your use or display of the Licensed Marks and Approved Publishers Images immediately upon the termination of this Agreement.

11. Representations and Warranties. You hereby represent and warrant to use as follows:

1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
2. Your execution, delivery, and performance of this Agreement and the consummation 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 you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
3. You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use your trademarks 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 other person or entity.
4. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third-party 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.
5. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.

12. Disclaimers. We make no express or implied warranties or representations with respect to the Affiliate Program or any Product(s) or other items sold through the Affiliate Program or otherwise on our website, and WE EXPRESSLY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. In addition, we make no representation or warranty that the operation of our website, the Links, or our procedures and systems tracking sales generated by your site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.

13. LIMITATION OF LIABILITY. WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14. LIMITATION OF REMEDY. OUR AGGREGATE MONETARY LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM SHALL NOT IN ANY EVENT EXCEED THE TOTAL COMMISSIONS PAYABLE TO YOU UNDER THIS AGREEMENT.

15. Indemnification. You hereby agree to indemnify, defend and hold harmless Red Queen Software, Inc., its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all third-party actual or threatened claims, losses, liabilities, damages or expenses (including attorneys fees and costs) of any nature whatsoever incurred or suffered by us (collectively the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of, are related to, or are based in any way on (i) any claim or threatened claim that our use of the Affiliate Trademarks infringes on the rights of any third-party; (ii) the breach of any representation or warranty made by you herein; (iii) any claim related to your Website, the conduct of your business, or your goods or services; (iv) your violation of any law, regulation, ordinance or applicable policy of or agreement with any Licensed Marks or Approved Publishers Images, or your infringement, misappropriation or other violation of any third-party intellectual property right.

16. General Provision.

1. Entire Agreement. This Agreement is the entire Agreement between the parties with respect to its subject matter, and it supersedes all prior agreements, representations and understandings, whether express or implied and whether oral or written.
   
2. Modification. We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion. Notice of any change by e-mail, to your address on our records, or the posting on our Website, of a change notice or a new agreement designated by us to be applicable to you or a group of persons or entities including you, is agreed to constitute sufficient notice of a binding modification of this Agreement. If any modification is unacceptable to you, your only recourse is to terminate this Agreement pursuant to Section 10 of this Agreement. Your continued participation in the Affiliate Program following our posting of a change notice or new agreement on our Web site will constitute binding acceptance of the modified terms.
   
3. Governing Law. This Agreement will be governed by the laws of the United States and the State of Oregon, without reference to the rules of any jurisdiction governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Clackamas County, Oregon, and you irrevocably consent to the personal jurisdiction and venue of such courts.
   
4. Assignment. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
   
5. Waiver. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
   
6. Relationship of Parties. You and Red Queen Software, Inc. are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers, enter into any contracts, or make any representations on our behalf, or to act as a distributor, seller, or reseller of any Product. In the event that any other provision of this Agreement conflicts with this Section 16F, this Section 16F shall control.

17. Independent Investigation. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

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Copyright 2002-2005 Red Queen Software, Inc. All rights reserved.