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Funagain Affiliate Program: Operating Agreement

  1. Enrollment in the Affiliates Program

    To begin the enrollment process, you must submit an enrollment request via our web site. We will evaluate your application in good faith and will notify you of your acceptance or rejection. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Affiliates Program for any reason, including, but not limited to, inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable.

    If we reject your application, you are welcome to reapply to the Affiliates Program at any time. You should also note that if we accept your application and your site is thereafter determined (in our sole discretion) to be unsuitable for the Affiliates Program, we may terminate this Agreement.

  2. Setting Up Links

    We provide you with instructions on how to set up links from your site to (see the Setting Up Your Site page). You may post as many links on your site to Funagain Games as you like, and may remove them at your discretion from your site at any time without our approval. As a Funagain Games Affiliate, you may not promote your Funagain links through unsolicited emailing (i.e., spamming), newsgroup postings, or any other method of mass communication.

    To permit accurate tracking, reporting, and referral fee accrual, you must use special "Coded Link" formats in all links between your site and our site. You must ensure that each of the links between your site and our site properly utilizes such special link formats (see the Setting Up Your Site page). You will only earn referral fees with respect to activity on our site occurring directly through properly Coded Links: we will not be liable to you with respect to any failure by you to use properly Coded Links, including to the extent that such failure may result in any reduction of amounts which would otherwise be paid to you pursuant to this Agreement.

  3. Use of Content

    You may quote editorial material from the Funagain web site such as Funagain Staff Reviews and Game Descriptions, but you may not copy text from copyrighted materials present on the site including, but not limited to, Guest Reviews, magazine excerpts and book excerpts. When creating your web pages, please remember that some details such as price and availability are subject to change without notice.

    You may use game box and game layout images from the Funagain site, as well as the graphics provided on our Funagain Graphics pages and our Affiliates Graphics pages. All such images are to be used for marketing purposes only in conjunction with the Funagain Affiliates program.

  4. Order Processing

    We will process orders placed by customers who follow Coded Links from your site to our site. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations, and returns, and handle customer service. We will track sales made to customers who purchase products using Coded Links from your site to our site and will make available to you reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time in our discretion.

  5. Commissions

    We will pay you a commission of five percent (5%) of gross revenue generated during a referred session from your web site to Funagain Games. For a sale to be eligible to earn a commission, the customer must follow a Coded Link from your site to our site, select and purchase products using our automated ordering system, accept delivery of products at the shipping destination, and remit full payment to us. We will not, however, pay commission on any products that are added to a customer's Shopping Cart after the customer has reentered our site (other than through a Coded Link), even if the customer previously followed a link from your site to our site. Gift certificates will be eligible to earn commission. The Affiliates Program is intended for commercial use only, and you may not purchase products through the Affiliates Program for your own use. Such purchases may result (in our sole discretion) in the withholding of referral fees or the termination of this Agreement.

  6. Commission Payments

    We will pay you your commission upon request (please select the "contact us" option on our website and choose "Affiliates Program" in the recipient field). If the commission amount requested is less than $100.00, or if your last commission payment was requested and sent less than three months before your current request, we may (at our sole discretion) choose to deny your request and ask you to resubmit your commission request at a later date or when more funds have accumulated.

  7. Policies and Pricing

    Customers who buy products through the Affiliates Program will be deemed to be customers of Funagain Games. Accordingly, all Funagain Games rules, policies, and operating procedures will apply to those customers. We reserve the right to change our policies, operating procedures, and prices at any time.

  8. Identifying Yourself as a Funagain Games Affiliate

    On our Funagain Graphics page you will find a small graphic image for use in identifying your site as an Affiliates Program participant. You must display this logo or the phrase "In association with Funagain Games" somewhere on your site. We may modify the text or graphic image of this notice from time to time. In addition, we encourage (but do not require) you to include a Coded Link on your site to the Funagain Games home page. Refer to the Setting Up Your Site pages for details on setting up Coded Links.

  9. Limited License

    We grant you a non-exclusive, revocable right to use the Funagain Games logo and/or button provided for linkage and such other images for which we grant express permission, solely for the purpose of identifying your site as an Affiliates Program participant. You may not modify the logo, the message or any of our images in any way. We reserve all of our rights in the logo, the message, any other images, our trade names and trademarks and all other intellectual property rights. We may revoke your license at any time, by written notice to you.

  10. Responsibility for Your Site

    You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for:

    • The technical operation of your site and all related equipment;
    • Creating and posting product descriptions on your site and linking those descriptions to our catalog;
    • The accuracy and appropriateness of materials posted on your site;
    • Ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy or other personal or proprietary rights); and for ensuring that materials posted on your site are not libelous or otherwise illegal
    • We disclaim all liability for these matters. Further, you will indemnify and hold Funagain Games harmless from all claims, damages and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance and contents of your site.

  11. Term of the Agreement

    The term of this Agreement will begin upon our acceptance of your Affiliates Program Application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn commission on sales occurring during the term, and commissions earned through the date of termination will remain payable only if the related Funagain Games orders are not cancelled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.

  12. Modification

    We may modify any of the terms and conditions contained in this Agreement at any time in our sole discretion. You will be notified by email and a change notice will be posted on our site, accessible via the Funagain Affiliates page, accessible through your user account profile page. Modifications may include, but are not limited to, changes in the scope of available commissions, commission schedules, payment procedures, and Affiliates Program rules. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliates Program following our posting of a change notice or new Agreement on our site will constitute binding acceptance of the change.

  13. Relationship of Parties

    You and we 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 or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.

  14. 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 Affiliates Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Affiliates Program will not exceed the total referral fees paid or payable to you under this Agreement.

  15. Disclaimers

    We make no express or implied warranties or representations with respect to the Affiliates Program or any products sold through the Affiliates 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, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.

  16. 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 the 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 Affiliates Program and are not relying on any representation, guarantee or statement other than as set forth in this Agreement.

  17. Governing Law

    This Agreement will be governed by the laws of the United States and the state of Oregon, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Portland, Oregon, and you irrevocably consent to the jurisdiction of such courts. 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 enforceable against the parties and their respective successors and assigns. 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.