VULTURE KULTURE STORE AFFILIATE PROGRAM AGREEMENT
Please read the agreement document below before registering.
This Affiliate Agreement ("Agreement") contains the
complete terms and conditions between us, Vulture Kulture, and you, regarding
your application to participate as an affiliate of the Vulture Kulture Store
Affiliate Program ("Affiliate"), and the establishment of links from
your Web site to our Web site, "Vulture Kulture."
BY SUBMITTING AN APPLICATION TO JOIN THE VULTURE KULTURE
STORE AFFILIATE PROGRAM, YOU ARE CONFIRMING THAT YOU HAVE READ THIS OPERATING
AGREEMENT AND AGREED TO BE BOUND BY ITS TERMS AND CONDITIONS.
Vulture Kulture Store Affiliate Program Agreement Definitions
"We", "Our", "Us", "Merchant"
– Vulture Kulture and Vulture Kulture Store (collectively, "Vulture
"You", "Your" - The business,
individual or entity applying for participation in the Vulture Kulture Store
"Affiliate" - The business, individual
or entity that displays the Merchant's products, services and/or promotions
on its internet site and/or through offline representation through the affiliate
tracking code in exchange for receiving remuneration from the Merchant for sales
resulting from such display.
"Affiliate Site" - The Affiliate's
Internet site which displays the Merchant's products, services and/or promotions.
“Program” – The Vulture
Kulture Store Affiliate Program.
"Vulture Kulture's Products" –
Products listed under the Qualifying Products section and that are displayed
on the Vulture Kulture Store.
1. Enrollment in the Program
To begin the enrollment process, you must submit a complete Program application
via our site. The Application can be found by registering at the Affiliate
Program Section. 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 (at our sole discretion) that your site is unsuitable for the Program.
Unsuitable sites are those including, but not limited to, inclusion of content
that is, in our opinion, unlawful, harmful, threatening, defamatory, illegal,
obscene, harassing, promote violence or terrorism, promote sexually explicit
materials, violate intellectual property rights or that is racially, ethnically,
or otherwise objectionable.
If we reject your application, you are welcome to reapply to the Program 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 Program,
we may terminate this Agreement.
2. Promotion of Our Affiliate Relationship
a. If you qualify and agree to participate as an Affiliate
Site, we will make available to you guidelines and a variety of graphic and
textual links (each of these links sometimes being referred to herein as "Links"
or, individually, as a "Link"), which are subject to the terms and
conditions hereof. All the links provided will be special "tagged"
link formats to be used in all links between your site and our site, which will
permit accurate tracking, reporting, and commission fee accrual. 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." The Special Links will serve to identify your
site as a member of the Vulture Kulture Store Affiliate Program and will establish
a link from your site to ours. The links may connect to any area of our site
and may be one or more of the following types of links to our site:
* Product Links
* Category Links
* General Link to Vulture Kulture Store Home Page
b. You will only earn commission fees 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 which would otherwise be paid to you pursuant to this Agreement.
You will, however, earn commission fees with respect to all product purchases
on our site once from that “tagged” link.
c. In utilizing the links, you agree that you will cooperate
fully with us in order to establish and maintain such links. You also agree
that you will display on your site only those graphic or textual images (indicating
a link) provided by us in the Banners and Other Links and Qualified Products
sections or text messages approved in writing by Vulture Kulture. All Affiliate
Sites shall display such graphic and/or textual images prominently in relevant
sections of their site. Any information with respect to us that is going to
be displayed on your site must be provided by us or approved by us in writing
in advance of any display. All Links may be modified and/or expanded from time
to time throughout the term of this Agreement pursuant to the mutual agreement
of the parties hereto. You are not allowed to post any coupon information
unless we have given you written permission. Each link connecting users
of your site to the pertinent area of our site will in no way alter the look,
feel, or functionality of our site. In addition, we encourage (but do not require)
you to include a Link to the home page of our main site: www.vulturekulture.com.
3. Order Processing
We will process product orders placed by customers who follow special links
from your site to our site. We reserve the right, in our sole discretion, to
reject orders that do not comply with any requirements that we periodically
may establish. All aspects of order processing and fulfillment, including order
form preparing, customer service, shipping, cancellation, processing, returns
and payment processing will be our responsibility. We will track sales made
to customers who purchase products using special links from your site to our
site and will make available to you reports summarizing this sales activity.
To permit accurate tracking, reporting, and fee accrual, you must ensure that
the links between your web site and our web site are properly formatted.
We will pay you (in accordance with Sections 5 and 6 below) commission fees
on certain Product sales to third parties. For a Product sale to be eligible
to earn a commission fee, the customer must follow a Special Link from your
site to our site, select and purchase the Qualifying Product(s) using our automated
ordering system, accept delivery of the Product at the shipping destination,
and remit full payment to us.
5. Commission Determination
a. Only Vulture Kulture Products that are (i) sold by us, (ii)
purchased by customers linking to our site from your site pursuant to a Link,
(iii) shipped and/or supplied by us, and (iv) fully paid for will qualify for
a commission (each, a "Qualifying Revenue"). "Qualifying Revenues"
are revenues derived by us from our sales of Qualifying Products including metal
sculptures and all related metal artwork products, as well as Vulture Kulture
Brand Products (included, but not limited, to clothing, accessories, and home
and kitchen products.) “Qualifying Revenues” do not include shipping
& handling, gift-wrapping, taxes, and service charges.
b. Vulture Kulture pays monthly commissions of 7% of all Qualifying
Revenues of metal art and furniture and 10% on all Qualifying Revenues of Vulture
Kulture brand products.
c. Vulture Kulture, in its sole discretion, reserves the right
to withhold indefinitely or reject any affiliate commission for any account/sale
which has not been in an approved status as an account of Vulture Kulture for
a period of at least thirty (30) days. Vulture Kulture also retains the right
to review all commissions for possible fraud, including but not limited to the
use of software that generates real and fictitious information, the use of fictitious
ID and/or address and the use of a fictitious Tax ID Number or Social Security
Number. Any incidence of fraud constitutes a breach of this Agreement, and Vulture
Kulture retains full authority to terminate this Agreement immediately.
6. Commission Fee Payment: We will pay you
commission fees on a monthly basis. 15 days following the end of each calendar
month, we will send you a check for the commission fees earned on your sales
of Qualifying Products that were sold during that month, less any taxes that
we are required by law to withhold. However, if the commission fees payable
to you for any month are less than $25.00, we will hold those commission fees
until the total amount due is at least $25.00 or (if earlier) until this Agreement
is terminated. If a Product that generated a commission fee is returned by the
customer, we will deduct the corresponding commission fee from your next monthly
payment. If there is no subsequent payment, we will send you an invoice for
the commission fee. Vulture Kulture, in its sole discretion, reserves the right
to modify the terms of this commission payment method or schedule.
7. Reports of Sales
You will be given a password and have the ability to enter a password-protected
site to receive your sales statistics on a daily basis. Customer status information
will be included in your report.
8. Obligations Regarding Your Site
a. You will be solely responsible for the development, operation,
and maintenance of your site and for all the materials that appear on your site.
Such responsibilities include, but are not limited to, the technical operation
of your site and all related equipment; the accuracy and propriety of materials
posted on your site (including, but not limited to, all Vulture Kulture Products
and related materials); ensuring that materials posted on your site do not violate
or infringe upon the rights of any third party (including, but not limited to,
copyrights, trademarks, privacy, or other personal or proprietary rights) and
are not libelous or otherwise illegal. We disclaim all liability and responsibility
for such matters.
b. We have the right in our sole discretion to monitor your
site at any time and from time to time to determine if you are in compliance
with the terms of this Agreement. If you are not in compliance we may terminate
this Agreement immediately.
9. Vulture Kulture Responsibilities
We will be responsible for providing all information necessary to allow you
to make appropriate Links from your site to our site. Vulture Kulture will solely
be responsible for order processing for orders/sales placed by a customer following
a special Link from your site, for tracking this customer for the following
30 days to their first visit, for tracking the volume and amount of sales generated
by your site, and for providing information to Affiliate Sites regarding sales
statistics. Vulture Kulture will be solely responsible for all order processing,
including but not limited to payment processing, shipping, cancellations, returns
and related customer service. Any determination made by Vulture Kulture regarding
the foregoing shall be binding absent manifest error.
10. Policies and Pricing
Customers who buy products through this Program will be deemed to be customers
of www.vulturekulture.net. Accordingly, all of Vulture
Kulture's 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 Program
in accordance with our 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 may not 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 at any time.
11. Emails and Publicity
You shall not create, publish, transmit or distribute, under any circumstances,
any bulk electronic mail messages (also known as "SPAM"), as defined
in the new Federal spam law, the CAN-SPAM Act of 2003 [the "Act"],
with respect to the Program. Additionally, you may only send emails containing
a Vulture Kulture Affiliate link and or a message regarding Vulture Kulture
or Vulture Kulture's Affiliate Program to persons who have been previously registered
on your Web site and consented to be added to your mailing list, and/or that
have been previously contacted and whom consented to the fact that the affiliate
will be sending an email containing Vulture Kulture information or information
about the Vulture Kulture affiliate program, provided that the recipients have
the option to remove themselves from future mailings. Failure by you to abide
by this section, in any manner, will be deemed a material breach of this Agreement
by you and foreclose any and all rights you may have to any commissions. Any
incidence of SPAM constitutes a breach of this Agreement, and Vulture Kulture
retains full authority to terminate this Agreement immediately.
12. Licenses and Use of the Vulture Kulture Logos and
a. We grant you a non-exclusive, non-transferable, revocable
right to (i) access our site (www.vulturekulture.net) through the links solely
in accordance with the terms of this Agreement and (ii) solely in connection
with such links, to use the Vulture Kulture trademark and logo and similar identifying
material relating to us (but only in the form(s) that they are provided by us)
(collectively, the "licensed materials"), for the sole purpose of
identifying your site as a Program participant and to assist in generating Vulture
Kulture product sales on your site for Vulture Kulture. You may not alter, modify,
or change the licensed materials in any way. You are only entitled to use the
licensed materials to the extent that you are a member in good standing of the
Vulture Kulture Store Affiliate Program. We reserve all of our rights in the
Licensed Materials, any other images, our trade names and trademarks, and all
other intellectual property rights. We may revoke your license at any time by
giving you written notice.
b.The Licensed Materials do not include any images that are not found in the Banners and Other Links and Qualified Products section. This includes, but is not limited to, all the images found in the Vulture Kulture Web site (www.vulturekulture.com) such as: the Monster Garage Panels, the Monster Garage Wall Art, any photography related to the show Monster Garage, and the Monster Garage name and logo; the Rolling Stone Magazine panel, name, and logo; the Entertainment Weekly's It List Party's name and images; the Driveshaft logo, furniture and set images; the Original Productions name and images; Monster House, Great Biker Build-Off, Boom! and Plastic Surgery: Before & After names, logos, images, and panels; Dan Statler's image and all other images in any of the other sections of the site. The Monster Garage and Monster House trademarks are property of Discovery Communications, Inc. and Monster Cable Products, Inc.; the Biker Build-Off trademark is property of Discovery Communications, Inc.; the Boom! trademark is property of Network Enterprises Inc. All the above mentioned companies are solely responsible for granting any kind of license connected with the commercial use of the trademark and any materials or images related to it.
c. You shall not make any specific use of any Licensed Materials
for purposes other than selling Vulture Kulture Products, without first submitting
a sample to us and obtaining the prior written consent of Vulture Kulture, which
consent shall not be unreasonably withheld. You agree not to use the Licensed
Materials in any manner that is disparaging or that otherwise portrays Vulture
Kulture or any Vulture Kulture project, client, affiliate, employee or representative
in a negative light. We reserve all of our rights in the Licensed Materials
and of our other proprietary rights. We may revoke your license at any time,
by giving you written notice. If not revoked, this license shall terminate upon
expiration or termination of this Agreement.
d. You grant to us a non-exclusive license to utilize your
names, titles, and logos, as the same may be amended from time to time (the
"Affiliate Trademarks"), to advertise, market, promote, and publicize
in any manner our rights hereunder; provided, however, that we shall not be
required to so advertise, market, promote, or publicize the Affiliate Trademarks.
This license shall terminate upon the expiration or termination of this Agreement.
13. Identifying Yourself as an Affiliate
a. You may not make any press release with respect to this
Agreement or your participation in the Program without our prior written consent,
which may be given or withheld in our sole discretion. 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 Vulture Kulture Store supports, sponsors,
endorses or contributes money to any charity or other cause).
14. Resale and Special Incentive Restrictions
a.You may not purchase products during sessions initiated through
the links on your site for resale or commercial use of any kind. This includes
orders for customers or on behalf of customers. Such purchases may result (in
our sole discretion) in the withholding of commission fees or the termination
of this Agreement. Products that are eligible to earn commission fees under
the rules set forth above are referred to as "Qualifying Products."
b. 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" program for persons or entities who use Special Links
on your site to access our site). If we determine, in our sole discretion, that
you have offered any person or entity any such consideration or incentive, we
may (without limiting any other rights or remedies available to us) withhold
any commission fees otherwise payable to you under this Agreement and/or terminate
15. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your 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. Upon the termination of this Agreement for any
reason, you will immediately cease use of, and remove from your site, all links
to our site, product images from our database, and all Vulture Kulture advertisements,
trademarks, trade dress and logos, and all other Licensed Materials provided
by or on behalf of us to you pursuant hereto or in connection with the Program.
You are only eligible to earn commission fees on our sales of Qualifying Products
occurring during the term, and commission fees earned through the date of termination
will remain payable only if the related orders are not canceled or returned.
We may withhold your final payment for a reasonable time to ensure that no overpayment
is made. Upon termination of this Agreement, all rights and obligations of the
parties under this Agreement will be extinguished, except for those rights and
obligations that either by their express terms survive or that are otherwise
necessary for the enforcement of the Agreement.
16. W-9 Information
You agree to deliver, via fax (310-3010305) or postal mail (P.O. Box 2937, Venice,
CA 90291), to the Vulture Kulture Affiliate Program Manager a completed W-9
form, attached hereto as http://www.irs.gov/pub/irs-pdf/fw9.pdf
no later than 7 days from date of your application. Notwithstanding
anything in this agreement to the contrary, if you fail to deliver the completed
W-9, Vulture Kulture may withhold any and all bounty payments due to you until
such time as you complete the Form. You acknowledge that Vulture Kulture
needs this completed form in order to comply with IRS regulations and therefore
agree that withholding payment is a reasonable remedy for Vulture Kulture to
utilize upon your failure to deliver the completed W-9.
We 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 our site. Vulture Kulture, in its sole discretion, reserves the right to
notify you by email and further reserves the right to withhold notification
of any changes made to this Agreement. Modifications may include, but are not
limited to, changes in the scope of available commission fees, commission fee
schedules, payment procedures, and Affiliate Program rules. If any modification
is unacceptable to you, your only recourse is to terminate this agreement. Your
continued participation in the Affiliate Program following our posting of a
change notice or new agreement on our site will constitute binding acceptance
of the change.
18. Relationship of Parties
You and Vulture Kulture 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.
19. Limitation of Liability
We will not be liable for indirect, special, incidental, or consequential damages,
or any loss of revenue, profits, or data, arising in connection with this agreement
or the affiliate program, even if we have been advised of the possibility of
such damages. We will not be liable for any legal disputes from third parties
that may arise in connection with the use of any unlicensed materials, included,
but not limited to, the Monster Garage, Driveshaft, Rolling Stone Magazine and
Entertainment Weekly trademarks. Further, our aggregate liability arising with
respect to this agreement and the affiliate program will not exceed the total
commissions paid or payable to you under this agreement.
You hereby agree to indemnify and hold harmless Vulture Kulture and our subsidiaries
and Affiliates, and their directors, officers, employees, agents, shareholders,
partners, members, and other owners, against any and all claims, actions, demands,
liabilities, losses, damages, judgments, settlements, costs, and expenses (including
reasonable attorneys' fees) (any or all of the foregoing hereinafter referred
to as "Losses") insofar as such Losses (or actions in respect thereof)
arise out of or are based on (i) any claim that our use of the Affiliate Trademarks
infringes on any trademark, trade name, service mark, copyright, license, intellectual
property, or other proprietary right of any third party, (ii) any misrepresentation
of a representation or warranty or breach of a covenant and agreement made by
you herein, or (iii) any claim related to your site, including, without limitation,
it's development, operation, maintenance and content therein not attributable
We make no express or implied warranties or representations with respect to
the Affiliate Program or any products or services or other items sold through
the Affiliate 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, we make no representation that the operation
of our Web site will be uninterrupted or error-free, as from time to time we
will perform maintenance on our website and we will not be liable for the consequences
of any interruptions or errors.
Each of the parties here to agrees that all information including, without limitation,
the terms of this Agreement, business and financial information, customer and
vendor lists, and pricing and sales information, shall remain strictly confidential
and shall not be utilized for any purpose outside the terms of this Agreement
except and solely to the extent that any such information is (a) already lawfully
known to or independently developed by the receiving party, (b) disclosed in
published materials, (c) generally known to the public, or (d) lawfully obtained
from any third party any obligation of confidentiality to the discloser hereunder.
Notwithstanding the foregoing, each party is hereby authorized to deliver the
copy of any such information (a) to any person pursuant to a valid subpoena
or order issued by any court or administrative agency of competent jurisdiction,
(b) to its accountants, attorneys, or other agents on a confidential basis,
and (c) otherwise as required by applicable law, rule, regulation, or legal
process including, without limitation, the Securities Exchange Act of 1933,
as amended, and the rules and regulations promulgated thereunder, and the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
23. Representations and Warranties
You hereby represent and warrant to us as follows:
a. This Agreement has been duly and validly executed and delivered
by you and constitutes your legal, valid, and binding obligation, enforceable
against you in accordance with its terms.
b. The execution, delivery, and performance by you of this
Agreement and the consummation by you of the transactions contemplated hereby
will not, with or without the giving of notice, the lapse of time, or both,
conflict with or violate (i) any provision of law, rule, or regulation to which
you are subject, (ii) any order, judgment, or decree applicable to you or binding
upon your assets or properties, (iii) any provision of your by-laws or certificate
of incorporation, or (iv) any agreement or other instrument applicable to you
or binding upon your assets or properties.
c. You are the sole and exclusive owner of the Affiliate Trademarks
and have the right and power to grant to us the license to use your trademarks
in the manner contemplated herein, and such grant does not and will not (i)
breach, conflict with, or constitute a default under any agreement or other
instrument applicable to you or binding upon your assets or properties, or (ii)
infringe upon any trademark, trade name, service mark, copyright, or other proprietary
right of any other person or entity.
d. No consent, approval, or authorization of, or exemption
by, or filing with, any governmental authority or any third party is required
to be obtained or made by you in connection with the execution, delivery, and
performance of this Agreement or the taking by you of any other action contemplated
e. There is no pending or, to the best of your knowledge, threatened
claim, action, or proceeding against you, or any Affiliate of yours, with respect
to the execution, delivery, or consummation of this Agreement, or with respect
to your trademarks, and, to the best of your knowledge, there is no basis for
any such claim, action, or proceeding.
f. During the term of the Agreement, you will not include in
your site content that is, in our opinion, unlawful, harmful, threatening, defamatory,
obscene, harassing, racially, ethically, or otherwise objectionable.
g. You are at least eighteen (18) years of age.
23. Independent Investigation
YOUR APPLICATION SUBMISSION ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT AND
AGREE TO BE BOUND BY ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY
AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER RELATIONSHIPS ON TERMS
THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT. WE MAY ALSO SOLICIT
CUSTOMER RELATIONSHIPS WITH ENTITIES THAT OPERATE WEB SITES THAT ARE SIMILAR
TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY
OF PARTICIPATING IN THE VULTURE KULTURE STORE AFFILIATE PROGRAM AND ARE NOT
RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH
IN THIS AGREEMENT.
24. Governing Law
The laws of the United States and the State of California will govern this Agreement,
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 Los
Angeles County, Los Angeles, California, 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.
I INDICATE MY APPROVAL OF THIS AGREEMENT AND DESIRE
TO BECOME AN AFFILIATE UNDER THESE TERMS AND CONDITIONS BY FILLING OUT AND SUBMITTING