Affiliate Agreement

OVERVIEW

This Agreement contains the complete terms and conditions that apply to Affiliate’s participation in the 17th Avenue Affiliate Program (the “Program”). Carefully read these terms and conditions, which represent a legally binding agreement between 17th Avenue (“we”) and you (“you” or “Affiliate”). As used in this Agreement, “Site” means, depending on the context, either 17thavenuedesigns.com or the website owned or controlled by Affiliate, on which Affiliate will place Links (as defined below) to 17thavenuedesigns.com.

1. ENROLLMENT IN THE PROGRAM

Affiliate shall submit a completed Affiliate Program application through our Affiliate page to begin the enrollment process. 17th Avenue will evaluate your application and notify you if the application is accepted or rejected. 17th Avenue may reject Affiliate’s application for any reason, in 17th Avenue’s sole discretion, including if 17th Avenue determines that Affiliate’s Site is unsuitable for the Program. Unsuitable sites include, without limitation, those that contain illegal, offensive, infringing content or content that 17th Avenue otherwise deems offensive. If Affiliate is accepted into the Program, Affiliate shall notify 17th Avenue in writing of any significant changes to the content or structure of Affiliate’s Site within ten (10) days of such changes.

2. LINKS

For the purposes of this Agreement, “Link(s)” means the code that 17th Avenue makes available to Affiliate that is used for linking from your Site to web pages on 17thavenuedesigns.com, and may include banners, text, buttons, or other graphics or devices. 17th Avenue may, in its sole discretion, consider written requests to use other serving mechanisms, on a case by case basis. Affiliate shall not modify the Links in any way. 17th Avenue will not be responsible for errors that occur in the tracking of transactions if Affiliate has made or caused any such modification.

3. GENERAL LINKS TO 17TH AVENUE

Affiliate shall only post Links approved by 17th Avenue. Approved Links will be made available to Affiliate through the Affiliate Dashboard upon Affiliate’s acceptance into the Program. Any deviations from the guidelines and treatment described in this Agreement must be approved in advance and in writing by 17th Avenue. 17th Avenue may at any time, without prior notice, remove the Links described above or require Affiliate to remove the Links.

4. TRANSACTION PROCESSING

17th Avenue will process transactions placed by customers who follow Links from Affiliate’s Site to the 17th Avenue Site. 17th Avenue reserves the right to reject transactions that do not comply with any reasonable requirements that 17th Avenue may periodically establish. 17th Avenue will be responsible for all aspects of transactions processing and fulfillment. Among other things, 17th Avenue will prepare order forms; process payments, cancellations, and handle customer service. 17th Avenue will track transactions made with customers who purchase products using Links and generate reports summarizing this sales activity which will be available to Affiliate in the Affiliate dashboard. To permit accurate tracking, reporting, and fee accrual, Affiliate shall ensure that Links are properly formatted. 17th Avenue will not be responsible for improperly formatted Links.

5. QUALIFIED TRANSACTIONS

17th Avenue will pay Referral Fees (as defined below) to Affiliate for products purchased in Qualified Transactions (as defined below).

For the purposes of this Agreement, a “Qualified Transaction” means a transaction whereby a customer: (i) uses a Link to enter the 17th Avenue Site; (ii) purchases one or more 17th Avenue “Qualified Product” (as defined below) using 17th Avenue’s automated purchase system; and (iii) remits full payment to 17th Avenue.

A “Qualified Product” is any instant-download product we have available in our shop, which includes all WordPress Themes. Add-on items, upgrades, bundles/packages, installation, customizations, and custom design services are excluded from the Affiliate Referral Program.

If a customer initially visits the 17th Avenue Site using a Link, any transaction completed by that customer on the 17th Avenue Site within thirty (30) days, whether or not via a Link, will count as a Qualified Transaction if it otherwise meets the requirements of this Section and the Agreement. A purchase Affiliate makes using their own affiliate link is not considered a Qualified Transaction, and therefore no commission will be earned on such a transaction.

17th Avenue does not accept responsibility for customers who may delete or otherwise not accept cookies used to track return visits to the 17th Avenue Site and cannot be held to honor Referral Fees for such untracked return visits. 17th Avenue will not pay Referral Fees for any items other than purchased in Qualified Transactions (as defined in this Agreement). This means that 17th Avenue will not pay you for transactions that, among other things, result from a link directly to 17thavenuedesigns.com from any Internet site other than your Site, such as from a Sponsored Link as set forth in this Agreement. This also means that you will not be entitled to Referral Fees for products sold that are ultimately returned or refunded.

6. REFERRAL FEE

A Referral Fee is the fee 17th Avenue will pay Affiliate when a Qualified Transaction is generated by the Affiliate Site. Affiliate will receive a 20% commission for each theme sale that is referred via Affiliate Link to the 17th Avenue Site. 17th Avenue does not make any guarantee of a minimum amount of business or that Affiliate will earn any amount of Referral Fees under this Agreement.

7. AFFILIATE REFERRAL FEE PAYMENT SCHEDULE

17th Avenue will pay Affiliate the Referral Fees on a rolling basis on or before the 20th of each month following a qualified transaction. For example, any referrals made in March would be paid on or before April 20th. There is no minimum payout amount, meaning Affiliate does not have to earn a certain amount of money before getting paid. Affiliate’s commission payments will be sent via PayPal. Affiliate may track the number of Qualified Transactions and associated Referral Fees through the Affiliate Dashboard.

8. POLICIES & PRICING

Customers who buy products through the Program will be deemed to be customers of 17th Avenue. Accordingly, all 17thavenuedesigns.com rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to such customers with respect to their transactions at 17thavenuedesigns.com. We may change our policies and operating procedures at any time consistent with applicable laws. Since prices and availability may vary from time to time, Affiliate may not display 17thavenuedesigns.com price information on Affiliate’s Site. 17thavenuedesigns.com will use commercially reasonable efforts to present current and accurate information, but cannot guarantee the availability or price of any particular event.

9. PROMOTION OF AFFILIATION WITH 17TH AVENUE

Affiliate may not in any manner misrepresent or embellish the relationship between the parties. While 17th Avenue requests that Affiliate identify itself on its Site as a member of the 17th Avenue Affiliate Program, Affiliate shall not otherwise engage in any promotions which name 17th Avenue or imply any relationship or affiliation between the parties including, but not limited to, 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. Any such promotion will be considered grounds for immediate termination of this Agreement and may invoke further legal action.

10. EMAILS FROM 17TH AVENUE

When you are accepted in the Program, you will be placed on a mailing list so we can send you periodic updates about the Program, including important changes and information about upcoming sales or promotions that may boost your success in the Program. We ask that you do not unsubscribe from this list so we can keep you informed as an Affiliate. You will not receive more than six emails per year.

11. LIMITED LICENSE FOR THE TERM OF THIS AGREEMENT

17th Avenue hereby grants to Affiliate a limited, non-exclusive, non-transferable, revocable license to use and display the Links and to access the 17th Avenue Site through the Links solely in accordance with the terms of this Agreement, and for the term of this Agreement.

12. OWNERSHIP

As between Affiliate and 17th Avenue, 17th Avenue shall own all right, title and interest, including all Intellectual Property Rights, in and to the 17th Avenue Site, the Program and the Links. 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.

13. 17TH AVENUE’S MARKETING AND PUBLICITY

17th Avenue may publicly refer to you, orally or in writing, as an Affiliate and we may publish your name and/or logo (with or without a link to your Application) on our Website, in press releases, and in promotional materials without your prior consent.

14. RESPONSIBILITY FOR AFFILIATE’S SITE

Affiliate will be solely responsible for the development, operation, and maintenance of Affiliate’s Site and for all content that appears on such Site. Such responsibility includes, without limitation: (i) the technical operation of Affiliate’s Site and all related equipment; (ii) the accuracy, timeliness and appropriateness of content posted on Affiliate’s Site; (iii) ensuring that posted materials do not violate or infringe upon the rights of any third party; (iv) ensuring that posted content is not libelous or otherwise illegal. Affiliate shall not use any 17th Avenue proprietary materials in a manner that is disparaging or that otherwise portrays 17th Avenue in a negative light.

15. SPONSORED LINKS

Affiliate shall not use, procure, bid on, or otherwise arrange for a Sponsored Link (defined below) on any Internet search engine, website, portal, sponsored advertising service or other search or referral service (a “Service”) which Sponsored Link uses or includes the terms “17th Avenue,” “17th Avenue Designs,” “17thavenuedesigns.com,” or any other trademarks, trade names, or service marks.
Affiliate shall not use, procure, or otherwise arrange for

16. USE OF LINKS

Affiliate can use their Affiliate Link on their own website, in a course, on social media, and in email newsletters.

17th Avenue does not permit use of Affiliate Links on deals sites, coupon sites, reviews sites, or similar sites. Affiliate shall not use, procure, or otherwise arrange for an Affiliate Link to be placed on any site that is not their own or could be described as a deals, coupon, or reviews site. If Affiliate is found to have placed an Affiliate Link on a prohibited site after acceptance into the Affiliate Program, Affiliate will be removed from the Program.

17. INDEMNITY

Affiliate shall defend, indemnify and hold 17th Avenue harmless from all claims, damages, and expenses (including, without limitation, reasonable attorneys’ fees) relating to: (i) the development, operation, maintenance, and content of Affiliate’s Site; or (ii) breach of this Agreement.

18. TERM AND TERMINATION

Affiliate’s acceptance of the terms and conditions of this Agreement shall be evidenced by Affiliate’s submission of a completed Program application, provided, however, that this Agreement shall not be effective unless and until 17th Avenue has accepted Affiliate into the Program. The term of this Agreement will begin upon 17th Avenue’s acceptance of Affiliate into the Program and will end when terminated by either party (the “Term”). Either party may terminate this Agreement at any time, with or without cause, by giving the other party prior written notice. Upon termination, Affiliate shall promptly remove all Links and Program-related content from Affiliate’s Site. Affiliate is only eligible to earn Referral Fees on Qualified Transactions occurring during the Term (including all steps required for a transaction to be a Qualified Transaction under this Agreement. In the event that an overpayment is made by 17th Avenue, Affiliate agrees to promptly remit such excess payment upon notification by 17th Avenue. 17th Avenue may withhold Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid.

19. MODIFICATIONS

17th Avenue may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the 17th Avenue Site. If any modification is unacceptable to Affiliate, Affiliate’s only recourse is to terminate this agreement. Affiliate’s continued participation in the Program following our posting of a change notice or new agreement on the 17th Avenue Site and/or sending you the change notice via e-mail will constitute binding acceptance of the change.

20. RELATIONSHIP OF PARTIES

The parties 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 our behalf. Affiliate will not make any statement, whether on the Affiliate Site or otherwise, that reasonably would contradict anything in this Section.

21. LIMITATION OF LIABILITY

17TH AVENUE SHALL NOT BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (HOWEVER ARISING, AND REGARDLESS OF THE THEORY OF RECOVERY). 17TH AVENUE’S TOTAL LIABILITY TO AFFILIATE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNTS PAID BY 17TH AVENUE TO AFFILIATE DURING THE TWELVE (12) MONTHS IMMEDIATELY BEFORE THE FIRST REOCCURRENCE OF EVENTS GIVING RISE TO THE IMPOSITION OF LIABILITY UNDER THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING LIMITATIONS, SO THEY MAY NOT APPLY TO AFFILIATE.

22. DISCLAIMERS

17th Avenue makes no express or implied warranties or representations with respect to the Program or any products sold through the Program. In addition, 17th Avenue makes no representation that the operation of the 17th Avenue Site will be uninterrupted or error-free, and we will not be liable for any such interruptions or errors.

23. INDEPENDENT INVESTIGATION

Affiliate acknowledges that it has read this Agreement and agrees to all its terms and conditions. Affiliate understands that 17th Avenue 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 Affiliate’s site. 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.

24. MISCELLANEOUS

All rights not expressly granted herein by 17th Avenue to Affiliate are reserved by 17th Avenue. There are no implied rights.

Except as set forth in Section 19, “Modifications,” this Agreement may be amended or supplemented only by a writing that is signed by duly authorized representatives of 17th Avenue. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.

If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.

This Agreement shall be governed by and construed under the laws of the State of Oregon, without regards to its conflict of laws principals.

17th Avenue may assign this Agreement without restriction, provided that assignee agrees in writing to be bound by the terms of this Agreement. Affiliate may not assign this Agreement or any rights, duties, or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of 17th Avenue and any attempt to do so without such consent will be void. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.

The titles and headings herein are for reference purposes only and shall not in any manner limit the construction of this Agreement, which shall be considered as a whole.

Except as may be otherwise specifically provided in this Agreement, this Agreement is not intended to and shall not confer upon any other person or business entity, other than the parties hereto, any rights or remedies with respect to the subject matter hereof.

This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations and agreement, whether written or oral.

Updated June 2021