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Legal - Affiliate Terms of Service

This Affiliate Agreement ("Agreement") is made by and agreed to between Animoto Inc., a California corporation, with a place of business at 214 Sullivan Street #2F, New York, NY 10012 USA (hereinafter referred to as “Animoto”), and you (hereafter “Affiliate” or "You"). By applying to Animoto’s Affiliate Program and indicating your acceptance to these terms during the application process, you consent and agree to the terms and conditions contained herein.

The Animoto website, including its site located at the URL http://animoto.com, as well as its application, widget, and gadget for social networks (including but not limited to Facebook Platform, MySpace Platform, Google OpenSocial and iPhone App Store), as well as Animoto’s video creation services made available through authorized third party websites (“Animoto Services”), provides Users with the ability to view or create a video (“Animoto Video”), which is automatically created by Animoto using uploaded photographs, graphics, or video clips set to a selected or uploaded music track. Collectively herein, the Animoto Services and the Animoto website and applications will be referred to as the “Site.” There are three types of Users of the Site: (1) paid members that have registered with Animoto or registered with an authorized third party that provides access to Animoto Services, (2) free users that have registered with Animoto, and (3) visitors of the site, such as someone invited to view another's video.

Animoto offers a program (“Affiliate Program”) by which an Affiliate may earn compensation (“Payouts”) for directing Users to the Site via an Internet connection (“Link”) to the Site from such Affiliate’s webpage or website (“Affiliate Site”). A “Transaction” occurs each time all of the following events occur: (1) a User accesses the Site via a Link from an Affiliate Site, (2) a User registers with Animoto during the session initiated from the Link, and (3) within one-hundred (100) days after such User registers, the User purchases a new Plus or Pro pass from Animoto. The Affiliate Program is subject to the terms and conditions contained herein, and any further details or clarifications of the Affiliate Program as described on the Site. Furthermore, all Affiliates are subject to Animoto’s site Terms of Service, which are incorporated herein.

This Affiliate Agreement was last updated on February 7, 2011. Animoto reserves the right, at any time, to modify the Site and/or the terms of this Agreement without prior notice. Animoto will Inform Affiliates of any modifications of this Agreement by sending a notice to Affiliate’s email of record. Upon receipt of such notice, Affiliate will have fifteen (15) days to object ("Notice of Objection") to any change in this Agreement. If Affiliate does not object within fifteen (15) days by sending a Notice of Objection to support@animoto.com, then Affiliate agrees to be bound by such revisions to this Agreement.

Affiliate Program Participation

  1. Potential Affiliates may apply to Animoto for acceptance in the Affiliate Program. Participation in the Affiliate Program is subject to approval by Animoto, which approval is at the sole discretion of Animoto. Animoto may refuse, terminate, or suspend participation in the Affiliate Program at any time, for any or no reason.
  2. Once Affiliate has been accepted into the Affiliate Program, Affiliate will be provided with instructions (“Instructions”) from Animoto to include Link on its Affiliate Site. Such Instructions will include a Link plug-in (“Plug-In”) for inclusion on Affiliate’s Site. Any failure by Affiliate to follow the Instructions or attempt by Affiliate to modify the Plug-In will result in immediate termination from the Affiliate Program.
  3. Participation in the Affiliate Program is limited to only (1) the Affiliate and not any of Affiliate’s employees, contractors, affiliates, partners, subsidiaries, parents, successors, or assigns; and (2) the Affiliate Site specified during the application process.
  4. Affiliate agrees to provide Animoto with accurate information, and to maintain up-to-date “Account” information (such as contact information, Web sites used, etc.). Affiliate represents and warrants that it has and will accurately, clearly and completely describe all promotional methods and Affiliate Site(s) used by Affiliate, and will provide Animoto any reasonable additional information as requested.
  5. Transactions qualifying for a Payout are defined by Animoto on its Site. Animoto may change the definition of Transactions covered by the Affiliate Program and/or any Payout rate upon notice to Affiliate to its email address of record with Animoto.
  6. From time to time, Animoto may enter into additional contractual relationships with Affiliates in the form of a click agreement (“Click Agreement”) through its Site. It is Affiliate’s obligation to review and accept or decline a Click Agreement. To the extent a Click Agreement conflicts with the terms herein, the terms of the Click Agreement shall prevail.
  7. If Affiliate is requested or notified by Animoto that an update to the Link or Plug-In is required, Affiliate must update the Link or Plug-In on Affiliate Site within ten (10) days of such notification. Failure to do so may result in failure to earn Payouts, and/or termination or suspension of Affiliate’s participation in the Affiliate Program.

Affiliate Program Participation

  1. Potential Affiliates may apply to Animoto for acceptance in the Affiliate Program. Participation in the Affiliate Program is subject to approval by Animoto, which approval is at the sole discretion of Animoto. Animoto may refuse, terminate, or suspend participation in the Affiliate Program at any time, for any or no reason.
  2. Once Affiliate has been accepted into the Affiliate Program, Affiliate will be provided with instructions ("Instructions") from Animoto to include Link on its Affiliate Site. Such Instructions will include a Link plug-in ("Plug-In") for inclusion on Affiliate's Site. Any failure by Affiliate to follow the Instructions or attempt by Affiliate to modify the Plug-In will result in immediate termination from the Affiliate Program.
  3. Participation in the Affiliate Program is limited to only (1) the Affiliate and not any of Affiliate's employees, contractors, affiliates, partners, subsidiaries, parents, successors, or assigns; and (2) the Affiliate Site specified during the application process.
  4. Affiliate agrees to provide Animoto with accurate information, and to maintain up-to-date "Account" information (such as contact information, Web sites used, etc.). Affiliate represents and warrants that it has and will accurately, clearly and completely describe all promotional methods and Affiliate Site(s) used by Affiliate, and will provide Animoto any reasonable additional information as requested.
  5. Transactions qualifying for a Payout are defined by Animoto on its Site. Animoto may change the definition of Transactions covered by the Affiliate Program and/or any Payout rate upon notice to Affiliate to its email address of record with Animoto.
  6. From time to time, Animoto may enter into additional contractual relationships with Affiliates in the form of a click agreement ("Click Agreement") through its Site. It is Affiliate's obligation to review and accept or decline a Click Agreement. To the extent a Click Agreement conflicts with the terms herein, the terms of the Click Agreement shall prevail.
  7. If Affiliate is requested or notified by Animoto that an update to the Link or Plug-In is required, Affiliate must update the Link or Plug-In on Affiliate Site within ten (10) days of such notification. Failure to do so may result in failure to earn Payouts, and/or termination or suspension of Affiliate's participation in the Affiliate Program.

Affiliate Uses of Links

  1. Affiliate may not place Links in third party newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chat rooms, or guest books. Affiliate may only place Links on Affiliate's Site as specified by Affiliate and approved by Animoto upon application to the Affiliate Program.
  2. Affiliate represents and warrants that (i) it will not mislead Users in any way, (ii) it shall not cause any Transactions to be made that are not bona fide transactions initiated by User, including, but not limited to, using any device, program, robot, Iframes, or hidden frames.
  3. Affiliate understands that it will not earn a Payout for Transactions where Affiliate or Affiliate’s owner, employee, agent, contractor, affiliate, or partner is a User. Furthermore, Affiliate may not earn a Payout, at Animoto’s discretion, for multiple Transactions from the same individual, entity or IP address.
  4. Affiliate represents and warrants that none of its promotional activities will infringe the proprietary rights of Animoto nor third parties, Affiliate will at all times during its participation in the Affiliate program, comply with all applicable laws, rules, and regulations.
  5. Affiliate represents and warrants that all promotional means used by it will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities).
  6. Affiliate represents and warrants it will: (i) use ethical and legal business practices, (ii) comply with Animoto’s Site Terms of Service and this Agreement, and (iii) maintain an industry standard privacy policy on Affiliate’s Site in compliance with all applicable laws, rules or regulations.
  7. Affiliate represents and warrants that it will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with any laws and/ or regulations that govern email marketing and/or communications.
  8. Affiliate represents and warrants that it will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by Affiliate Site content /site visit or by downloadable software applications for which Affiliate is the owner/operator. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results.
  9. Affiliate represents and warrants that it will not collect personally identifiable information of Users that would allow Animoto to personally identify Users.
  10. To the extent Affiliate uses Animoto’s Quickstart™ API, which allows Affiliate to populate for its Users certain musical or image / video content (collectively, “Pre-Populated Content”), Affiliate represents and warrants that such Pre-Populated Content is in compliance with Animoto’s Site Terms of Service. Furthermore, Affiliate represents and warrants that all such Pre-Populated content has been properly licensed for all contemplated uses of the resulting Animoto Video by User and Animoto, and neither User nor Animoto shall be required to make payments to any third parties for use of the Pre-Populated Content.
  11. Affiliate agrees to indemnify, defend, and hold harmless Animoto and its parents, subsidiaries, affiliates, officers and employees, harmless from any liabilities, claims, expenses or demands, including reasonable attorneys' fees and costs, made or alleged by any third party due to or arising out of Affiliate's Site or Affiliate's breach of its warranties and representations hereunder.

Payouts

  1. Animoto shall determine (where possible) actual Payouts that should be credited to Affiliate for Transactions. Failure by an Affiliate to properly follow Animoto’s Instructions for embedding the Plug-In in an Affiliate Site may result in a failure by Animoto to track Transactions. Payouts will neither be earned nor paid for Transactions which could not be tracked due to Affiliate’s failure to follow Animoto’s Instructions, or due to Affiliate’s modification of the Plug-In.
  2. Payouts will be credited to Affiliate’s account. For Affiliate account balances of over one hundred dollars ($100 USD) as of the last day of each month, Animoto will issue payment to Affiliate within forty-five (45) days of such last day of each month. Animoto may set-off the Payout by any amounts due to Animoto by Affiliate, as well as refunds and charge-backs. The number or amount of Transactions, credits for Payouts, and debits for any refunds or charge-backs, as calculated by Animoto, shall be final and binding on Affiliate.
  3. Animoto may apply a debit to Affiliate’s account in an amount equal to a Payout previously credited to Affiliate in circumstances of: (i) duplicate entry or other clear error; (ii) non-bona fide Transactions; or (iii) Affiliate’s failure to comply with Animoto’s Affiliate Program terms or this Agreement.
  4. Animoto may, at its discretion, provide Affiliate with access to a tracking and reporting tool relating to Transactions and Payouts under the Affiliate Program.
  5. Animoto will provide reasonable support for the Affiliate Program on-line through the "Contact Us" area on the Site.
  6. If Affiliate’s account has not been credited with a valid, compensable Transaction that has not been charged-back during any rolling, six consecutive calendar month period (“Dormant Account”), a dormant account fee at Animoto’s then-current rate shall be applied to Affiliate's Account each calendar month that such account remains an open yet Dormant Account or until the balance reaches a zero balance, at which time the account shall become deactivated. Transactions will not be counted if the Transaction subsequently becomes a charge-back.
  7. Affiliate may have a negative balance if its account is debited for set-offs, refunds or charge-backs and Affiliate does not have an adequate account balance to cover the set-off, refund, or charge-back amounts. Affiliate must immediately remit payment to Animoto to bring the account to a zero balance, or Animoto reserves the right to charge 1.5% interest per month on the negative balance, compounded monthly.
  8. At each yearly anniversary date of Affiliate’s participation in the Affiliate Program, if Affiliate’s account balance has not exceeded one hundred dollars ($100 USD) during the previous year, the Affiliate’s account balance will be reset to zero dollars ($0 USD).

Animoto's Intellectual Property Rights

  1. Upon Affiliate’s acceptance in the Affiliate Program, and for the duration of Affiliate’s participation in the Affiliate Program at Animoto’s discretion, Animoto grants the Affiliate the nonexclusive, nontransferable, limited, royalty-free, right to display and Link to the Animoto Site in accordance with the Affiliate Program terms and subject to this Agreement. Affiliate’s right hereunder is expressly conditioned upon (i) Affiliate’s compliance with this Agreement; (ii) Affiliate’s compliance with Animoto’s Instructions regarding embedding Link in Affiliate’s Site; (iii) Affiliate’s agreement to refrain from copying or modifying the Plug-In, and/or any trademarks, logos, icons, buttons, banners, graphics files, code, or content contained in the Link, including but not limited to refraining from removing or altering any copyright or trademark notices. Any use of Animoto’s proprietary information, including but not limited to logos, trademarks, copyrighted material, code, or content, except as provided by Animoto in the Plug-In, is expressly prohibited.
  2. Except as set forth in Paragraph 4(a), nothing contained herein shall be construed as granting Affiliate any rights by implication or estoppel to any of Animoto’s intellectual or proprietary rights. Animoto retains all ownership right, title, and interest in and to its intellectual property rights, and al goodwill arising as a result of such rights, whether registered or unregistered. Affiliate agrees not to challenge the validity of Animoto’s proprietary rights.
  3. Animoto owns all rights in and to all information regarding the Users that Affiliates refer to Animoto.
  4. Affiliate grants Animoto the nonexclusive, perpetual, worldwide, royalty-free right to use Affiliate's trademarks, service marks, trade names, and/or copyrighted material that Affiliate voluntarily provides to Animoto.
  5. Affiliate agrees not to adopt or use in any manner any trademarks, service marks, trade names, slogans, and/or URLs that are the same or confusingly similar to, or are combined with, those of Animoto. Affiliate further agrees not to degrade, defame or tarnish Animoto, its reputation, or its trademarks, service marks, trade names, slogans, and/or URLs.

Confidentiality

  1. Affiliate or Animoto may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential ("Confidential Information"). The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement as demonstrated by the records of the receiving party. Upon termination of this Agreement, Affiliate must destroy or return to Animoto any Confidential Information provided by Animoto to Affiliate under this Agreement.
  2. Affiliate agrees that Animoto may delegate its responsibilities hereunder to a third party for the purpose of monitoring, tracking and administering the Transactions and Payouts to Affiliate hereunder (“Purpose”). Affiliate consents to such delegation, and understands and agrees that Animoto may provide Affiliate’s account detailed information to such third party for the Purpose.

Term and Termination

  1. This Agreement shall commence upon the date signed by the last of both Parties below and shall continue until terminated in accordance with the terms of this Agreement. This Agreement may be terminated by either Party for any or no reason, upon seven (7) days’ notice. This Agreement may be terminated immediately upon notice for Affiliate’s breach of this Agreement or the Site Terms of Service. Affiliate’s account may be deactivated during investigation of breach of this Agreement. If this Agreement is terminated based upon Affiliate’s breach, Affiliate shall not be eligible to enter into a new Affiliate Agreement, and any attempt to do so shall be null and void.
  2. Upon termination of this Agreement, or in case of deactivation of Affiliate’s account, Affiliate shall no longer accrue Payouts, including but not limited to Transactions which occurred prior to termination.
  3. The Affiliate Program and/or Payouts thereunder may be modified or discontinued at any time.
  4. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for Animoto, via registered mail, return receipt requested or via an internationally recognized express mail carrier to attn: Chief Executive Officer, Animoto, 214 Sullivan Street #2F, New York, NY 10012 USA (effective upon actual receipt); and, (ii) for Affiliate, at the email or physical address registered with Animoto (effective upon sending as long as Animoto does not receive an error message regarding delivery of the email) or five (5) days after mailing first class U.S. Mail.
  5. Upon termination of this Agreement, any rights or permissions granted under this Agreement to Affiliate will terminate, and Affiliate must immediately remove all Plug-Ins and Links from its Site. All intellectual property ownership provisions, warranties, indemnification obligations, limitations of liability, and obligations of confidentiality shall survive any expiration of this Agreement.

Warranties and Limit of Liability

  1. In addition to the warranties by Affiliate provided for elsewhere herein, each Party represents and warrants to the other Party as to itself that the person executing this Agreement is authorized to do so on such party's behalf. IF AFFILIATE IS AN INDIVIDUAL, AFFILIATE REPRESENTS AND WARRANTS THAT AFFILIATE IS AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
  2. ANY OBLIGATION OR LIABILITY OF ANIMOTO UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF AFFILIATE'S PAYOUTS PAID TO AFFILIATE BY ANIMOTO UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM. AFFILIATE AGREES THAT ANIMOTO SHALL NOT BE LIABLE TO AFFILIATE, OR ANY THIRD PARTY, FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
  3. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ANIMOTO DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT ANIMOTO'S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE LINK, PLUG-IN, OR SITE. ALL INFORMATION AND COMPUTER PROGRAMS PROVIDED TO AFFILIATE UNDER THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH AFFILIATE.

Miscellaneous

  1. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor.
  2. This Agreement is governed by the laws of the State of California (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Oakland, California. The parties consent to such venue and jurisdiction and waive any right to a trial by jury. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs. Animoto controls and operates its Site from its offices in the USA and access or use where illegal is prohibited.
  3. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
  4. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
  5. Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, Affiliate's consent shall not be required for assignment or transfer made by Animoto (1) due to operation of law, or (2) to an entity that acquires substantially all of Animoto's stock, assets or business, or (3) to a related entity (e.g. parent or subsidiary of parent). Furthermore, Animoto may contract with third parties to delegate its duties hereunder without prior written permission of Affiliate.
  6. This Agreement, including Animoto's site Terms of Service, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated therein.
  7. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click through" acknowledgement of assent.

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