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Affiliate Agreement

3RD STONE DESIGN INC.
AFFILIATE AGREEMENT

This Affiliate Agreement (this "Agreement") is entered into by and between the affiliate whose name appears on the signature page hereto (the "Affiliate"), and 3rd Stone Design Inc., a California corporation ("3SD"), and is effective as of the date accepted by 3SD (as indicated on the signature page hereto). Affiliate and 3SD may each be referred to individually as a "Party" and collectively as "Parties". 

RECITALS

A.        3SD, being in the business of selling lunchboxes online, desires to  implement an Affiliate Marketing and Referral Program (the "Program") in order to encourage sales.

B.         The Affiliate desires to participate in the Program.

AGREEMENT

Now, therefore, in consideration of the covenants, agreements, representations, and warranties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. General Affiliate Terms and Conditions.

This Agreement contains the complete terms and conditions that apply to Affiliate’s participation in the Program. As used in this Agreement, “Site” means, depending on the context, either the planetbox.com site or the website owned or controlled by Affiliate, on which Affiliate will place the Link (as defined below).

2. Enrollment in the Program.

Affiliate shall execute this Agreement and return it to 3SD. 3SD may in its sole discretion accept this Agreement by countersigning it or reject the Agreement if for any reason 3SD determines that the Affiliate’s Site is unsuitable for the Program. By executing this Agreement, Affiliate represents and warrants that Affiliate is of sufficient legal age to create binding legal obligations and that the Program does not violate any law, ordinance, regulation or standard in the jurisdiction in which Affiliate is located.

3. Link.

For the purposes of this Agreement, “Link” means the unique URL that 3SD makes available to the Affiliate for linking from Affiliate's Site to web pages on planetbox.com. The Affiliate shall not modify the Link in any way. Affiliate may provide the Link through a product review, text link, banner ad, or a combination of such strategies. At Affiliate's request, 3SD will provide logos, artwork and sample ads for use on Affiliate's website ("3SD Material"), subject to the other provisions of this Agreement, including, but not limited to, Sections 10 and 11 below. 3SD will not be responsible for errors that occur in the tracking of transactions if the Affiliate has made or caused any modification of the Link. 3SD may, at any time, without prior notice, remove the Link described above, or require the Affiliate to remove the Link. Spamming, including the sending of unsolicited electronic communications, will not be tolerated and may lead to termination of this Agreement. The Affiliate will not be entitled to any Referral Fees (as defined below) generated through spamming tactics.

4. Transaction Processing.

3SD reserves the right to reject transactions that do not comply with any requirements that 3SD may periodically establish. 3SD will be responsible for all aspects of transaction processing and fulfillment. Data relating to sales on the planetbox.com Site is the sole property of 3SD; provided, however, that 3SD will provide reasonable data regarding the manner in which the Referral Fee (as defined below) has been calculated.

5. Qualified Transactions.

3SD will pay Referral Fees to the Affiliate for Qualified Transactions. For the purposes of this Agreement, a “Qualified Transaction” means a transaction whereby a customer: (i) uses a Link on the Affiliate Site to enter the planetbox.com Site; (ii) makes a purchase from the planetbox.com Site; and (iii) remits full payment to 3SD for purchases made during such session, less any ongoing rebates, discount campaigns or transaction fees, taxes, duties and shipping and handling charges (“Revenue Amount").

3SD will not pay Referral Fees for any transactions other than Qualified Transactions as defined in this Agreement. This means that Affiliate will not be entitled to Referral Fees for products sold that are returned or where transactions are otherwise reversed or deemed void and cancelled.

6. Referral Fees.

3SD will pay the Affiliate ten percent (10%) of the Revenue Amount per Qualified Transaction (“Referral Fees”).

Affiliate may not self-refer, nor sign up for multiple accounts to collect Referral Fees. Affiliate may also not partner with any other planetbox.com user to share/transfer the commission made from Affiliate's account.

7. Fee Payment.

3SD will pay the Affiliate the Referral Fees within forty-five (45) days after the end of each calendar quarter in which the Affiliate has accrued Fifty Dollars ($50) or more in Referral Fees. If Affiliate accrues less than Fifty Dollars ($50) of Referral Fees in any calendar quarter, such amounts shall be held until such calendar quarter as the aggregate Referral Fees earned by the Affiliate are equal to or exceed Fifty Dollars ($50). Referral Fees shall not accrue interest. Payment shall be made by check sent to the Affiliate at the address provided on the signature page hereto. Payment shall only be made in US Dollars. 3SD shall withhold any taxes that 3SD is required to withhold by law. 3SD does not guarantee a minimum amount of business or any amount of Referral Fees under this Agreement.  In the event that an overpayment is made by 3SD, the Affiliate agrees to promptly remit such excess payment upon notification by 3SD.

8. Policies and Pricing.

Customers who purchase items through the Program will be deemed to be customers of 3SD. Accordingly, all planetbox.com terms of use, rules, policies, and operating procedures concerning customer orders and customer service, will apply to such customers with respect to their transactions at planetbox.com. 3SD may change its policies and operating procedures at any time consistent with applicable laws.

9. Promotion of Affiliation with 3SD.

The Affiliate may not in any manner misrepresent or embellish the relationship between the Parties ,including, but not limited to, in press releases, marketing materials, offline print advertising or marketing campaigns, media kits, screen shots, graphics altered for co-branding or any other format or media. Unless specifically agreed beforehand and in writing, any such promotion may result in legal action. Affiliate may acknowledge Affiliate's relationship with 3SD as a participant in the Program.

10. Limited License for the Term of this Agreement.

3SD hereby grants to the Affiliate a limited, non-exclusive, non-transferable, revocable license to use and display the Link and 3SD Material solely in accordance with the terms of this Agreement for the term of this Agreement in order to accomplish the purpose and intent of this Agreement. Affiliate may not otherwise use, copy, distribute, change, modify or otherwise alter the Link or any 3SD Material. The license is neither assignable, sublicensable nor transferable.

11. Ownership.

As between the Affiliate and 3SD, 3SD shall own all right, title and interest, including all Intellectual Property Rights, in and to the planetbox.com Site, the Program, 3SD Material and the Link. For the purposes of this Agreement “Intellectual Property Rights” means copyright rights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the United States or any other state, country or jurisdiction.

12. Responsibility for the Affiliate’s Site and for Compliance with Applicable Law.

The Affiliate will be solely responsible for the development, operation, and maintenance of the Affiliate’s Site and for all content that appears on such Site except for the 3SD Material; provided, however, that Affiliate will be responsible for any alterations to the 3SD Material. The Affiliate shall not use any 3SD Materials or the Link in a manner that is disparaging or that otherwise portrays 3SD in a negative light. The Affiliate shall comply with any and all regulations, statutes and applicable laws of the United States, the European Union or any other state, country or jurisdiction related to websites, e-mail, electronic communications and participation as an affiliate in affiliate programs such as the Program. It is the Affiliate’s responsibility to be aware of all such regulations, statutes and laws. Affiliate agrees not to make any representations, promises, or warranties about 3SD, its websites, products or policies or the planetbox.com Site.

13. Indemnity.

The Affiliate shall defend, indemnify and hold 3SD harmless from all claims, damages, and expenses (including, without limitation, reasonable attorneys’ fees) relating to: (i) the development, operation, maintenance, and content of the Affiliate’s Site; or (ii) the breach of this Agreement.

14. Term and Termination.

Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice as provided herein. Upon termination, the Affiliate shall promptly remove the Link and all 3SD Materials from the Affiliate’s Site. The Affiliate is only eligible to earn Referral Fees on Qualified Transactions occurring prior to the termination of this Agreement. 3SD may withhold the Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid. Sections 9 through 19, shall survive the termination of this Agreement, along with any other provisions that by their express terms do, or by their nature should, survive.

15. Relationship of Parties.

Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. The Affiliate will have no authority to make or accept any offers or make any representations on behalf of 3SD. Participation in the Program does not constitute approval or endorsement of Affiliate's Site by 3SD. Affiliate agrees to provide any additional documents and take any additional actions reasonably requested by 3SD to effectuate the purpose of this Agreement.

16. Limitation of Liability.

3SD 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 Program, even if 3SD has been advised of the possibility of such damages. In addition, 3SD's aggregate liability to Affiliate arising out of this Agreement and the Program will not exceed the total Referral Fees paid or validly due and payable to Affiliate under this Agreement.

17. No Warranties; Disclaimers.

            3SD makes no express or implied warranties or representations to Affiliate with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing or trade usage). In addition, 3SD makes no representation that the operation of the planetbox.com Site will be uninterrupted or error-free, and 3SD will not be liable for the consequences of any interruptions or errors.

 

18. Independent Investigation.

The Affiliate acknowledges that it has read this Agreement and agrees to all its terms and conditions. The Affiliate understands that 3SD may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate websites that are similar to or compete with the Affiliate’s Site. The Affiliate has independently evaluated the desirability of participating in the Program and is not relying on any representations or statements other than as set forth in this Agreement.

            19. Miscellaneous.

(a)                No Third Party Beneficiaries or Implied Rights.  This Agreement shall not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns. All rights not expressly granted herein by 3SD to the Affiliate are reserved by 3SD. No rights are implied pursuant to this Agreement.

(b)               Entire Agreement.  This Agreement constitutes the entire agreement among the Parties related to the subject matter hereof and supersedes any prior understandings, agreements, or representations by or among the Parties, written, oral, or electronic, to the extent they relate in any way to the subject matter hereof.

(c)                Succession and Assignment.  3SD may assign this Agreement without restriction. The Affiliate shall not assign either this Agreement or any of his, her, or its rights, interests, or obligations hereunder without the written approval of 3SD, and any attempted assignment in derogation of this Section 19(c) shall be null and void without any force or effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. 

(d)               Counterparts.  This Agreement may be executed in one or more original, facsimile, or electronic counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.  Facsimile and electronic signatures shall be deemed original signatures.

(e)                Headings.  The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.

(f)                Notices.  All notices, requests, demands, claims, and other communications hereunder shall be in writing, addressed to the intended recipient, as set forth below and deemed duly given (i) when delivered personally to the recipient, (ii) one business day after being sent by reputable courier service (charges prepaid), or (iii) upon transmission by e-mail or upon electronic confirmation after being sent by facsimile transmission in each case, if sent during regular business hours or, if not, then on the next business day:

(i)                 If to Affiliate, to the address, e-mail address or facsimile number provided on the signature page hereto;

(ii)               If to 3SD, to 3rd Stone Design Inc., 2935 Kerner Boulevard, Suite B, San Rafael, California 94901, Attn: Robert Miros, Facsimile: (415) 329-1892, e-mail address:  robert@3rdstonedesign.com; with a copy to Coblentz, Patch, Duffy & Bass LLP, One Ferry Building, Suite 200, San Francisco, California 94111, Attn: Howard Lasky, Facsimile: (415) 989-1663.

Any Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving ten days advance notice to the other Party in the manner set forth in this Section 19(f).

(g)               Governing Law.  This Agreement shall be governed by and construed in accordance with the domestic laws of the State of California without giving effect to any choice or conflict of law principles.  Each of the Parties irrevocably consents to the exclusive jurisdiction and venue of any federal or state court in the County of San Francisco, California in connection with any matter based upon or arising under this Agreement, and, in furtherance thereof, hereby waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought.

(h)               Attorney's Fees and Costs.  If either Party commences any  action against the other Party in order to enforce any provision hereof, or to recover damages as the result of the alleged breach of any provision hereof, the prevailing Party shall be entitled to recover all reasonable costs incurred in connection with such action, including, but not limited to, reasonable attorneys' fees.

(i)                 Waivers and Amendments.  No Party's failure or delay, whether intentional or unintentional, in exercising any right, power, or remedy such Party has pursuant to this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or remedy preclude any other or further exercise of any right, power, or remedy.  No amendment, termination, or waiver of any provision of this Agreement shall be effective unless in writing, signed by the Parties.

(j)                 Severability.  The invalidity or unenforceability of any term or provision of this Agreement shall not affect the validity or enforceability of the other terms and provisions hereof.

(k)               Construction.  Any reference to the singular shall include the plural, and vice versa, as the context may require.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. 

(l)                 Authority.  Each Party represents to the other that it has full binding authority to enter into this Agreement.