Eye Games Affiliate Program Agreement

EYE GAMES, INC. AFFILIATE PROGRAM AGREEMENT

TO PARTICIPATE IN THIS PROGRAM YOU MUST ACCEPT THE TERMS OF THIS AGREEMENT BY CLICKING THE "ACCEPT" BUTTON AT THE BOTTOM OF THIS PAGE

This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Eye Games, Inc. (“Eye Games”) Affiliate Program ("Program"). As used in this Agreement, "Affiliate" means the accepted applicant, "EyeGames.com Site" means the site that has its primary home page identified by the URL www.eyegames.com, "Site" means a World Wide Web site, and "Affiliate Site" means any site that the Affiliate will link to the EyeGames.com Site (and which Affiliate will identify in the Program application).

1. Enrollment in the Program.
To begin the enrollment process, applicant will submit a complete Program application via the EyeGames.com Site. Eye Games will evaluate the application in good faith and will notify applicant of its acceptance or rejection. Eye Games may reject the application if it is determined (in Eye Games' sole discretion) that the Affiliate Site is unsuitable for the Program. Unsuitable sites include those that:

promote sexually explicit materials
promote violence
promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
promote illegal activities
include "eyegames," or variations or misspellings of any of it, in their URLs to the left of the top-level domain name (e.g., ".com", ".net", ".uk", etc.). For example, a URL such as "eyegames.mydomain.com" or "eyegamesz.com" would be unsuitable
otherwise violate intellectual property rights.

By participating in the Program, Affiliate agrees not engage in any such activities. If Eye Games rejects the application, applicant is welcome to reapply to the Program at any time. If Eye Games accepts the application and the Affiliate Site is thereafter determined (in Eye Games' sole discretion) to be unsuitable for the Program, Eye Games may terminate this Agreement.

2. Links on Affiliate Site.
Once Affiliate has been notified of acceptance into the Program, Affiliate may provide on the Affiliate Site one or more links to the EyeGames.com Site. To permit accurate tracking, reporting, and referral fee accrual, Eye Games will provide you with a special "tagged" link format to be used in all links between the Affiliate Site and the EyeGames.com Site. Affiliate must ensure that each of the links between Affiliate Site and the EyeGames.com Site properly utilizes such special link format. Links to the EyeGames.com Site placed on Affiliate Site pursuant to this Agreement and which properly utilize such special link formats are referred to as "Special Links." Affiliate will earn referral fees only with respect to activity on the EyeGames.com Site occurring directly through Special Links; Eye Games will not be liable to Affiliate with respect to any failure to use Special Links, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to Affiliate pursuant to this Agreement.

Affiliate acknowledges that, by participating in the Program and placing Special Links within Affiliate Site, Eye Games may receive information from or about visitors to Affiliate Site or communications between Affiliate Site and those visitors. Affiliate participation in the Program constitutes specific and unconditional consent to and authorization for Eye Games' access to, receipt, storage, use, and disclosure of any and all such information, consistent with the policies and procedures set forth in the Privacy Policy on the EyeGames.com Site.

Affiliate also acknowledges that as a participant in the Program, Eye Games may from time to time send Affiliate email updates about the Program. By participating in the Program, Affiliate consents to sending of these email updates.

Further, Affiliate acknowledges and agrees to: (a) not, in connection with this Agreement, display or reference on Affiliate Site, any trademark or logo of any third party seller on the EyeGames.com Site; (b) use any data, images, text, or other information obtained from Eye Games or the EyeGames.com 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 EyeGames.com Site; and (g) promptly delete any Content that is no longer displayed on the EyeGames.com Site or that Eye Games notifies you is no longer available for your use.

3. Order Processing.
Eye Games will process Product orders placed by customers who follow Special Links from Affiliate Site to the EyeGames.com Site. Eye Games reserves the right to reject orders that do not comply with any requirements that may be periodically established. Eye Games will be responsible for all aspects of order processing and fulfillment. Eye Games will track sales made to customers who purchase Products by using Special Links from Affiliate Site to the EyeGames.com Site and will make available to Affiliate reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time at Eye Games' discretion.

4. Referral Fees.
Eye Games will pay Affiliate (in accordance with Sections 5 and 6 below) referral fees on certain Product sales to third parties. For a Product sale to be eligible to earn a referral fee, the customer must click-through a Special Link from Affiliate Site to the EyeGames.com Site, and purchase the Product. Eligibility for referral fee ends upon one of the following events: 14 days elapse from the customer's initial click-through or the customer follows a third party's Special Link. Eye Games will only pay referral fees on eligible Products after order, payment and shipping have occurred.

Affiliate may not purchase products during sessions initiated through the Special Links on Affiliate Site for Affiliate’s 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 Affiliate or friends, relatives, or associates in any manner. Such purchases may result (in Eye Games' sole discretion) in the withholding of referral fees and/or the termination of this Agreement. Products that are eligible to earn referral fees under the rules set forth above are referred to as "Qualifying Products."

In addition, Affiliate 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 the EyeGames.com Site (e.g., by implementing any "rewards" program for persons or entities who use Special Links on your site to access the EyeGames.com Site); (b) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to Eye Games 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 the EyeGames.com Site; (d) make any orders or subscription requests, or engage in other transactions of any kind on the EyeGames.com 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 Affiliate’s relationship with Eye Games, or as to the site on which any functions or transactions (e.g., search, order, browse, and so on) are occurring; (f) other than providing Special Links on Affiliate Site in accordance with this Agreement, post or serve any advertisements or promotional content promoting the EyeGames.com Site or otherwise around or in conjunction with the display of the EyeGames.com Site (e.g., through any "framing" technique or technology or pop-up or pop-under windows), or assist, authorize, or encourage any third party to take any such action; (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 the EyeGames.com Site (as determined by Eye Games) for the purpose of exceeding any referral fee threshold or by causing any page of the EyeGames.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 Program; or (i) seek to purchase or register any keywords, search terms or other identifiers that include the word "eyegames" or variations thereof (for example "eyegamez", "igames", etc.) for use in any search engine, portal, sponsored advertising service or other search or referral service. If Eye Games determines, in Eye Games’ sole discretion, that Affiliate has engaged in any of the foregoing activities, Eye Games may (without limiting any other rights or available remedies) withhold any referral fees otherwise payable to Affiliate under this Agreement and/or terminate this Agreement.

5. Referral Fee Schedule.
For Qualifying Products sold during sessions initiated through Special Links on Affiliate Site, Affiliate will earn (subject to the other terms of this Agreement) referral fees equal to twenty percent (20%) of the customer purchase, net all applicable taxes and fulfillment fees.

6. Referral Fee Payment.
Eye Games will pay Affiliate referral fees on a monthly basis. Approximately 30 days following the end of each calendar month, Eye Games will send Affiliate a check for the referral fees earned. Eye Games we will accrue and withhold referral fees until the total amount due is at least $50.00. Eye Games is obligated by U.S. federal law to obtain tax information from Program participants who are U.S. citizens, U.S. residents or U.S. corporations and from Program participants who are not U.S. citizens or residents but whose businesses are taxable in the U.S. If Eye Games believes Affiliate is a Program participant from whom Eye Games is obligated to obtain tax information and Affiliate does not provide this information upon request, Eye Games may withhold Affiliate referral fee payments until this information is provided or Affiliate otherwise satisfies Eye Games that this tax information is not required.

7. Policies and Pricing.
Customers who buy products through this Program will be deemed to be Eye Games’ customers. Accordingly, all of Eye Games rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. Eye Games may change policies and operating procedures at any time. For example, Eye Games will determine the prices to be charged for products sold under this Program in accordance with Eye Games own pricing policies. Product prices and availability may vary from time to time.

8. Identification as an Affiliate.
Affiliate may not in any manner misrepresent or embellish the relationship between Eye Games and Affiliate, or express or imply any relationship or affiliation between Eye Games and Affiliate or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that Eye Games supports, sponsors, endorses, or contributes money to any charity or other cause).

9. Limited License.
Eye Games grants Affiliate a nonexclusive, revocable right to use Eye Games graphic images and text solely for the purpose of identifying Affiliate Site as a Program participant and to assist in generating Product sales. Affiliate may not modify Eye Games’ graphic images or text, in any way. Eye Games reserves all of rights in graphic images and text, trade names and trademarks, and all other intellectual property rights. Affiliate agrees to follow Eye Games’ trademark guidelines, as those guidelines may change from time to time. Eye Games may revoke Affiliate's license at any time by giving written notice.

10. Responsibility for Affiliate Site.
Affiliate will be solely responsible for the development, operation, and maintenance of Affiliate Site and for all materials that appear on said site.

For example, Affiliate will be solely responsible for:

the technical operation of Affiliate Site and all related equipment
creating and posting Product descriptions on Affiliate Site and linking those descriptions to the EyeGames.com Site
the accuracy and appropriateness of materials posted on Affiliate Site (including, among other things, all Product-related materials)
ensuring that materials posted on Affiliate 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)
ensuring that materials posted on Affiliate Site are not libelous or otherwise illegal
ensuring that Affiliate Site accurately and adequately discloses, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors' browsers.
Eye Games disclaims all liability for these matters. Further, Affiliate will indemnify and hold Eye Games harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of Affiliate Site.

11. Compliance with Laws.
As a condition to Affiliate’s participation in the Program, Affiliate agrees, while a participant in the Program, Affiliate will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over Affiliate, whether those laws, etc. are now in effect or later come into effect. Without limiting the foregoing obligation, Affiliate agrees that as a condition of participation in the Program, Affiliate will comply with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.

12. Term of the Agreement.
The term of this Agreement will begin upon Eye Games’ acceptance of Affiliates’ Program application and will end when terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, Affiliate will immediately cease use of, and remove from Affiliate Site, all links to the EyeGames.com Site, and all of Eye Games’ trademarks, trade dress, and logos, and all other materials provided by or on behalf of Eye Games to Affiliate pursuant hereto or in connection with the Program. Affiliate is eligible to earn referral fees only on sales of Qualifying Products that occur during the term, and referral fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. Eye Games may withhold Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid.

13. Modification.
Eye Games may modify any of the terms and conditions contained in this Agreement, at any time and in Eye Games’ sole discretion, by posting a change notice or a new agreement on the EyeGames.com Site. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, AFFILIATE’S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. AFFILIATE’S CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE EYEGAMES.COM SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.

14. Relationship of Parties.
Affiliate and Eye Games are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate will have no authority to make or accept any offers or representations on Eye Games’ behalf. Affiliate will not make any statement, whether on Affiliate Site or otherwise, that reasonably would contradict anything in this Section.

15. Limitation of Liability.
Eye Games 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 Eye Games has been advised of the possibility of such damages. Further, Eye Games aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to Affiliate under this Agreement.

16. Disclaimers.
Eye Games make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, Eye Games make no representation that the operation of the EyeGames.com Site will be uninterrupted or error-free, and will not be liable for the consequences of any interruptions or errors.

17. Independent Investigation.
AFFILIATE ACKNOWLEDGES THAT AFFILIATE HAS READ THIS AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. AFFILIATE UNDERSTANDS THAT EYE GAMES 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 AFFILIATE SITE. AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATION IN THE PROGRAM AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

18. Arbitration.
Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or Affiliate’s relationship with Eye Games shall be submitted to confidential arbitration in San Francisco, California, except that, to the extent you have in any manner violated or threatened to violate Eye Games’ intellectual property rights, Eye Games may seek injunctive or other appropriate relief in any state or federal court in the state of California (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.

19. Miscellaneous
This Agreement will be governed by the laws of the United States and the state of California, without reference to rules governing choice of laws. Affiliate may not assign this Agreement, by operation of law or otherwise, without Eye Games 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. Eye Games’ failure to enforce Affiliate’s strict performance of any provision of this Agreement will not constitute a waiver of Eye Games right to subsequently enforce such provision or any other provision of this Agreement.