AV3 Affiliate Programme – Operating Agreement

This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Affiliate Programme on Av3software.com (the "Programme"). As used in this Agreement, "we" (and "us" and "our") means AV3 Plugins Ltd (an English company) and "you" (and "your") means the applicant. "Site" means a World Wide Web site and, depending on the context, refers either to our site at http://www.av3software.com or to your site. Save for our obligation to pay referral fees under Section 4, which may be performed solely by us, we may cause any of our obligations under this Agreement to be fulfilled by any of our Affiliates (defined below), on our behalf.

1.Enrolment in the Programme
To begin the enrolment process, you need to submit a complete Programme application via our site. We will evaluate your application in good faith and will notify you of our decision. We may reject your application if we determine (at our sole discretion) that your site is unsuitable for the Programme. Unsuitable sites include, but are not limited to, those that:
promote sexually explicit materials
promote violence
promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
promote illegal activities
breach intellectual property rights
include “AV3” or other trademarks of AV3 Plugins Ltd. or its affiliates, or variations or misspellings thereof in any of their domain names, and in particular those including such trademarks or names in the left part of the top level domain name in the URL (e.g. denominations such as “AV3.mydomain.co.uk” or “A3V.co.uk” or “av3auctions.net”) shall be unsuitable.

If we reject your application, you are welcome to reapply to the Programme at any time. You should also note that if we accept your application and your site is thereafter determined (at our sole discretion) to be unsuitable for the Programme, we may terminate this Agreement. Participation in the Programme is limited to parties that lawfully can enter into and form contracts under applicable law. For example, minors are not allowed to participate in the Programme.

2.Links on Your Site
We grant you a revocable, non-exclusive, worldwide, royalty-free licence for the duration of the term of this Agreement, solely for purposes of facilitating referrals from your site to our site, to establish and maintain lists, links and search boxes as contemplated below:

Product Links: You may select one or more Products to list on your site. A "Product" is any product or service listed on the Av3software.com Site that is fulfilled or carried out by us or on our behalf, excluding: (i) products we specify from time to time; and (ii) products sold by a third party through a site linked to or from our site. For each selected Product, you will display on your site a short description, review, or other reference. You will be responsible for the content, style and placement of these references. You will provide a Special Link (as defined below) from each Product reference on your site to the corresponding Av3software.com online catalogue entry. Each link will connect directly to a single item in our online catalogue. You may add or delete Products (and related links) from your site at any time without our approval. You may not list products on your site that are not "Products" as defined above.
Search Box: You may provide an Av3software.com search box that will permit site visitors to navigate directly to a page on the AV3 Software Site that contains the results of their search queries. We will provide you with technical specifications describing how to include an Av3software.com search box on your site.

General Link to Av3software.com Homepage: You may provide a general link on your site to our homepage http://www.av3software.com. We will provide you with guidelines and graphical artwork to use in linking to the Av3software.com homepage.

“Content” Links: You may provide a "Content" Link on your site, through which we may serve "content" and Special Links as we deem appropriate. If you choose to provide a graphical Content Link, you agree you will only use the graphical artwork we serve or otherwise provide to you to identify the Content Link. If you choose to provide a text-only Content Link, you agree you will not alter the text we serve or otherwise provide to you to identify the Content Link.

Search Results Link: You may provide a link on your site that will link to a particular search result on our site, the parameters of which will be determined by you based on search generating alternatives we make available to you.

Any Page Link: You may provide a link on your site that will link to any particular page on our site, provided that you properly use the special link formats provided on our site as part of the Programme to create such link.

We will provide you with guidelines and graphical artwork to use in linking to our home page. To permit accurate tracking, reporting, and referral-fee accrual, we will provide you with special "tagged" link formats to be used 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. Links to our site placed on your site pursuant to this Agreement and which properly utilize such special link formats are referred to as "Special Links." You will earn referral fees only with respect to activity on our site occurring directly through Special Links; we will not be liable to you with respect to any failure by you to use Special Links, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement.

You acknowledge that, by participating in the Affiliate Programme and placing any of the above links within your site, we may receive information from or about visitors to your site or communications between your site and those visitors. Your participation in the Affiliates Programme constitutes your specific and unconditional consent to and authorization for our access to, receipt, storage, use, and disclosure of any and all such information, consistent with the policies and procedures set forth in our Privacy Notice.

Except for the licence granted under this Section 2, you do not obtain any rights under this Agreement in any intellectual property, including, without limitation, any intellectual property with respect to the Special Links, link formats, technical specifications, guidelines or graphical artwork referenced above, or with respect to the Av3software.com domain name.

In addition, you acknowledge that we (and our corporate affiliates) may crawl or otherwise monitor your site for the purpose of ensuring the quality and reliability of Special Links on your site (for example, to detect links that are broken or non-functional, links to products that are out of stock or otherwise unavailable, etc.). Therefore, you acknowledge and expressly agree that we and our corporate affiliates may take such actions and that you will not seek to block or otherwise interfere with such crawling or monitoring (and that we and our corporate affiliates may use technical means to overcome any methods used on your site to block or interfere with such crawling or monitoring).

Further, you acknowledge and agree that you will: (a) not, in connection with this Agreement, display or reference on your site, any trademark or logo of any third party seller on the av3software.com Site; (b) use any data, images, text, or other information obtained by you from us or our site in connection with this Agreement ("Content") only in a lawful manner and only in accordance with the terms of this Agreement; (c) not modify or alter any Content that consists of a graphic image, other than to resize it; (d) not edit any Content that consists of text, other than to shorten its length; (e) not sell, redistribute, sublicense or transfer any Content; (f) not use any Content in a manner intended to send sales to any site other than the Av3software.com Site; and (g) promptly delete any Content that is no longer displayed on the Av3software.com Site or that we notify you is no longer available for your use.

3. Order Processing
We will process Product orders placed by customers who follow Special Links from your Site to the Av3software.com 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. 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 Special Links from your site to our site and will make available reports summarising this sales activity. The form, content and frequency of the reports may vary from time to time at our discretion. To permit accurate tracking, reporting and fee accrual, you must ensure that the Special Links between your site and our site are properly formatted. We will not be liable for paying referral fees on purchases that are not correctly tracked and reported because the links between your site and our site are not properly formatted.

4. Referral Fees
In consideration for the advertising services provided by you under this Agreement we will pay you Referral Fees on certain Product sales to third parties in accordance with sections 5 and 6 below. For a product sale to generate a referral fee, the customer must follow a Special Link (in the format specified by us) from your site to the AV3software.com Site and add the Product to his or her shopping cart during a session. The session ends upon one of the following events: (a) 24 hours elapses from the customer's initial click-through, (b) the customer orders the Product (which includes subscribing for a service), or (c) the customer follows a third party's Special Link. We will only pay referral fees on such Products after order, payment and shipping (where applicable) have occurred. We will not, however, pay referral fees on any Products that are added to a customer's Shopping Basket or purchased by any other method offered by Av3software.com from time to time, after the customer has re-entered our site (other than through a Special Link from your site), even if the customer previously followed a link from your site to our site. Further, we will not pay referral fees on any Products purchased from any site operated by us or our Affiliates other than the Av3software.com Site. In addition, Products listed in the Av3software.com Site catalogue or in search results as "out of stock", "hard to find", "special order" (or other words to similar effect indicating that a product is not readily available for delivery) are not eligible for any referral fees. Any services offered on a free trial basis will only earn Referral Fees on completion of the free trial period and commencement of a paid for subscription. "Affiliate" means in respect of a party, any other party that directly or indirectly controls, is controlled by or is under common control with that first party.
You may not purchase products during sessions initiated through the links on your site for your own use, for resale or commercial use of any kind. This includes orders for customers or on behalf of customers or orders for products to be used by you or your friends, relatives, or associates in any manner. Such purchases may result (in our sole discretion) in the withholding of referral fees or the termination of this Agreement. Products that are entitled to earn referral fees under the rules set forth above are hereinafter referred to as "Qualifying Products".

In addition, you may not: (a) directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money (including any rebate), or granting of any discount or other benefit) for using Special Links on your site to access our site (e.g., by implementing any "rewards" programme for persons or entities who use Special Links on your site to access our site); (b) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any person or entity; (c) in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of our site; (d) make any orders or subscription requests, or engage in other transactions of any kind on our site on behalf of any third party, or authorize, assist, or encourage any other person or entity to do so; (e) take any action that could reasonably cause any customer confusion as to our relationship with you, or as to the site on which any functions or transactions (e.g., search, order, browse, and so on) are occurring; or (f) other than providing Special Links on your Site in accordance with this Agreement, post or serve any advertisements or promotional content promoting the Av3software.com Site or otherwise around or in conjunction with the display of our site (e.g., through any "framing" technique or technology or pop-up windows or pop-under windows), or assist, authorize, or encourage any third party to take any such action; or (g) attempt to circumvent the referral fee schedule or artificially increase your referral fees (e.g., by intentionally featuring, purchasing or requesting or encouraging any third party to purchase low-price items offered on our site (as determined by us) for the purpose of exceeding any referral fee threshold or by causing any page of the Av3software.com Site to open in a customer's browser other than as a result of the customer clicking on a Special Link on your Site); (h) attempt to intercept or re-direct (including, without limitation, via user-installed software) traffic from or on, or divert referral fees from, any web site that participates in the Programme; or (i) seek to purchase or register any keywords, search terms or other identifiers that include the word “av3software” or "av3plugins" or variations thereof (for example “av3software” "a3vplugins", "av3plguins", etc.) ("Proprietary Terms") for use in any search engine, portal, sponsored advertising service or other search or referral service. From time to time we may request that you cause any applicable Web search provider to exclude Proprietary Terms from keywords used to display your advertising content in association with search results, assuming the provider of such Web search engine offers such exclusion capabilities. If we determine, in our sole discretion, that you have engaged in any of the foregoing activities or, as the case may be, refused promptly to comply with a request from us to exclude Proprietary Terms from any keyword as mentioned above, or have violated any other term of this Agreement, we may (without limiting any other rights or remedies available to us) withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement.

5. Referral Fee Schedule
AV3 currently offer a single flat rate of commission of 8% of sales revenue of qualifying products.
During each calendar month, for Qualifying Products sold during sessions initiated through Special Links on your site, you will earn (subject to the other terms of this Agreement) referral fees in accordance with the schedule above.

6. Fee Payment
We will pay you referral fees on a monthly basis provided that we will only pay your referral fees and applicable EU VAT (if any) upon presentation of a valid VAT invoice. We may offer you the option to defer a referral fee payment for any month until the next month. Unless you choose to defer such payment, approximately 30 days following the end of each calendar month, and provided we have received the VAT invoice referred to above, we will send you payment for the referral fees earned on Qualifying Products that were dispatched during that month, less any taxes that we are required by law to withhold.
We will pay your referral fees by directly depositing the referral fees earned into your bank account (please note that you will have to provide us with the name of your bank, the bank account type, the sort code, the account number and the primary account holder name as it appears on the bank account.
If any bank details we hold are at any time incorrect, we will defer payment of referral fees until the calendar month in which the bank details are corrected).

We will accrue and withhold referral fees until the total amount due is at least 100.00 GBP/USD/Euros depending upon your chosen currency (or until this Agreement terminates, if earlier). If a Product that generated a referral fee is returned by the customer, we will deduct the corresponding fee from your next monthly payment. If there is no subsequent payment, we will send you an invoice for the fee. All payments under this Agreement will be made in Great British Pounds sterling, US Dollars or Euros depending upon which currency you have selected.

7. Policies and Pricing
For the avoidance of doubt, customers who buy Products through this Programme will be customers of the Av3software.com Site. Accordingly, all Av3software.com rules, policies and operating procedures concerning customer orders, customer service and Product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for Products sold under this Programme in accordance with its own pricing policies. Product prices and availability may vary from time to time. Because price changes may affect Products that you already have listed on your site, you must not include price information in your Product descriptions unless we serve those prices.  In addition, if you choose to display prices for any Product on your site in any "comparison" format (including through the use of any price-comparison tool or engine) together with prices for the same or similar products offered through any web site or other outlet other than our site, you must display both the lowest "new" price at which the Product is available on our site. You may not otherwise include price information in your Product descriptions. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular Product.

8. Identifying Yourself as an Affiliate
You may not issue any press release with respect to this Agreement or your participation in the Programme without our prior written consent, which may be given or withheld in our sole discretion. Doing so may result in your termination from the Programme. You may contact us via email at marketing@av3software.com  if you wish to apply for written consent. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that we support, sponsor, endorse, or contribute money to any charity or other cause. We will make available to you a small graphic image that identifies your site as a Programme participant. You must display this logo or the phrase "In association with Av3software.com" somewhere on your site. We may modify the text or graphic image from this notice from time to time.

9. Limited Licence
We grant you a non-exclusive, revocable right to use the graphic image and text described in Section 8 and such other text or images for which we grant express permission, solely for the purpose of identifying your site as a Programme participant and to assist promote the sale of Products on our Site. You may not modify the graphic image and text or any of our images in any way. We reserve all of our rights in the graphic image and text, any other images, our trade names and trademarks, and all other intellectual property rights. You agree to follow our Trademark Guidelines, as those guidelines may change from time to time. We may revoke these rights at any time by giving you written notice.

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 the Av3software.com Site catalogue using Special Links;
    * the accuracy and appropriateness of materials posted on your Site (including, among other things, all Product-related materials)
    * ensuring that materials posted on your Site do not breach or infringe upon the rights of any third party (including, for example, copyrights, trademarks, database rights, privacy or other personal or proprietary rights);
    * ensuring that materials posted on your Site are not defamatory or illegal.

We and our Affiliates disclaim all liability for these matters. Further, you will indemnify and hold us and our Affiliates harmless from all claims, damages and expenses (including, without limitation, legal 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 Programme 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 referral fees on sales of Qualifying Products occurring during the term and fees earned up to the date of termination will remain payable only if the related orders are not cancelled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. Upon termination of this Agreement, you must immediately cease use of, and remove from your Site, all links to the Av3software.com Site and all Av3software.com trademarks, trade names and logos and all other material by or on behalf of us to you in connection with the Programme.

12. Modification
We may modify any of the terms and conditions contained in this Agreement, at any time and at our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures and Programme rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAMME 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, mandate (“Mandat”) or representation, franchise, sales representative, or employment relationship between the parties or our respective Affiliates. You will have no authority to make or accept any offers or representations, declarations, guarantees, obligations or warranties on our or our Affiliates' behalf, including with respect to our or our Affiliates Products or services. You will not make any statement or representation, whether on your site or otherwise, that that reasonably would contradict anything in this section.

14. Limitation of Liability
We will not be liable for any business loss (including loss of profits, revenue, contracts, anticipated savings, data, goodwill or wasted expenditure) or any indirect or consequential loss arising in connection with this Agreement or the Programme if such losses were not reasonably foreseeable to both you and us when this Agreement was formed. Further, our aggregate liability arising with respect to this Agreement and the Programme will not exceed the total referral fees paid or payable to you under this Agreement at the time that the event giving rise to the liability arises.

Notwithstanding the previous paragraph, nothing in this Agreement will operate to exclude: (i) liability for death or personal injury arising as a result of the negligence of either party, its employees, agents or authorised representatives, (ii) either party’s contractual liability for gross negligence or wilful misconduct, or (iii) any liability which may not be excluded or limited under the applicable law

15. Disclaimers
To the fullest extent permitted by law, we make no express or implied warranties or representations with respect to the Programme or any Products sold through the Programme (including, without limitation, warranties of fitness, merchantability, non-infringement or any implied warranties arising out of a course of performance, dealing, or trade usage), and the same are hereby excluded. In addition, we make no representation, declarations or guarantees that the operation of our site will be uninterrupted or error-free and none of us will be liable for the consequences of any interruptions or errors.

16. Independent Investigation

17. Miscellaneous

This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of England without reference to the rules governing choice of laws, and you irrevocably submit to the non-exclusive jurisdiction of the Courts of England. 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. Notwithstanding any other provision in this Agreement, nothing in this Agreement is intended to confer on any third party (other than our Affiliates) any right to enforce any terms of this Agreement.

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