AFFILIATE AGREEMENT

This Agreement sets forth the terms and conditions for your participation in the Affiliate program by and between Fun Party Items.Com, Inc., an Illinois Corporation (“Fun Party”) and you, as a third party (“Affiliate”).

In consideration of the mutual promises set forth in this Agreement, the sufficiency of which is hereby acknowledged, Fun Party and Affiliate agree as follows:

1. Background. Fun Party operates a service which provides an internet store providing
Affiliate and others a forum, commonly known as a co-branded store (“Store”), in which to sell merchandise and/or services on the Store for which Affiliate receives from Fun Party a commission on sales from your Customers (as defined).

2. Customer Defined. A Customer is defined as Internet users who visit the Store using a web site link through your URL domain name. Affiliate may either utilize the Fun Party site as its sole internet site or may use the Fun Party web site which will link Affiliate’s site to the Store.

3. Affiliate Application. In order to become an Affiliate you must complete the attached Application. Completion and submission of the Application indicates Affiliates agreement to be bound by the terms and conditions of this Agreement. Fun Party, in its sole and absolute discretion, reserves the right, to accept or reject Affiliate’s application.

4. Internet Coordination. Subject to the terms and conditions of this Agreement, Fun Party will provide art for Affiliate to use on Affiliate’s web site which will link to the Store. In addition, Fun Party will provide graphics (“Links”) which may be utilized by Affiliate on its web site. The Links will allow Customers the following:

A. Customers will be enabled to visit the Store through a browser window to
Affiliate’s web site.
B. Customers will be enabled to return to the Affiliate’s home web site via Links on the Store web.

The name of the Store, as co-branded, will match the Affiliate’s name, allowing the Store to appear as an extension of Affiliate’s site. In addition, all e-mail communication, confirmations, shipping labels and the like, will contain Affiliate’s name.

5. Sales Processing. Fun Party will process orders and payments by Customers from the Store. Fun Party will also track the sales generated by the web site. Fun Party will pay commissions based upon purchases by your Customers on the Store. Merchandise returns will be processed requiring Return Merchandise Authorization Numbers, issued by Fun Party.

A. Affiliate will have secure access to review Customer’s order information
and commission. Access will be secured by a password protected web site.
All purchase orders entered on Affiliate’s site will be e-mailed to Affiliate
and Customer showing the purchased item, billing address, shipping address,
detail retail price and any special instructions. All information shall remain
available to Affiliate at the secure web site, in addition to commission and
ship date.

6. Commissions and Payments. Fun Party shall pay Affiliate a twenty-five (25.0%) percent commission on Net Sales. Net Sales is defined as retail price (in U.S. Dollars) of the amount paid by Customers to the web site less any taxes, duties, customs, shipping, handling costs as well as bad debts, credits for returned or damaged goods and/or chargebacks. The retail price upon which commissions are due shall include merchandise sold via the internet, to Customers utilizing the Store and shipped to a Customer, all for which full payment has been received and for which the item has not been returned or rejected by the Customer. Payment for commission shall be as follows:

A. The commission, as defined above, shall be paid on or before the 20th day
of the month following the merchandise shipment.
i. Commissions due that are less than $ 25 for any payment period may
be held until such cumulative commission exceeds the $ 25 amount.

B. In the event of a refund, credit and/or chargeback, such amount shall be
deducted from the next commission payment due Affiliate, until fully paid.
Notwithstanding anything to the contrary and at the sole and absolute
discretion of Fun Party, such amount due Fun Party may be billed and due immediately.

7. Permitted use of Links and Store Design. Fun Party shall provide to Affiliate certain graphic images containing, but not limited to, Fun Party logo, service marks and identification images, all herein referred to as Links. Affiliate may, at its discretion, utilize the Links into Affiliate’s web site to connect Customers to specific areas of the Store. The Store home page allows the use of Affiliate logo and business description. At the termination of this Agreement, for any reason, neither party shall have the right to use any Link, graphic images, service marks, logos or any related matter belonging to the other party.

8. Affiliate Limited License and Use of Mark. Affiliate is granted a non-exclusive, revocable right to use trade names, trademarks, service marks, logos and other identifying materials (“Marks”) for the sole purpose of Store promotion. Affiliate may not, in any manner alter or otherwise change any Marks of Fun Party or Store. Fun Party reserves the right, title and interest in any such Marks, whether expressly granted in this Agreement or not. Any right to use such Marks as defined herein shall be cancelable at any time by Fun Party and shall terminate, if not sooner, when Affiliate no longer participates as an Affiliate. Affiliate grants Fun Party a limited, non-exclusive license to utilize Affiliate’s trade names, trademarks, service marks, logos and other identifying materials (also referred to as “Marks”), to advertise, promote and in any other manner further the Store. The license granted hereunder shall immediately terminate upon termination of this Agreement.

9. Affiliate Warranties and Representations. Affiliate represents and warrants to Fun Party that Affiliate: a) has full right and authority to bind itself and/or entity to the terms and conditions of this Agreement and that this Agreement has been duly and validly executed and delivered by Affiliate constituting Affiliate’s legal, written, valid and binding obligation, enforceable against Affiliate in accordance with its terms; b) by execution, delivery and performance of this Agreement and the transactions contemplated hereby will not, with or without notice, lapse of time, conflict or any combination thereof, violate i) any provision of law, regulation, or rule to which Affiliate is subject, ii) , any order, judgment or decree applicable to Affiliate or binding upon Affiliate iii) any provision of Affiliate’s by-laws or incorporation certificate, or iv) any other agreement or instrument applicable to or binding upon Affiliate. Affiliate further represents that Affiliate is the sole and exclusive owner of and has the right and power to grant Fun Party a license to use the Affiliate Marks as set forth herein, the use of which will not i) conflict with, violate, breach or otherwise constitute a default under any agreement or instrument or ii) infringe upon any trademark, trade name, service mark, copyright or other proprietary right of any other person or entity. Affiliate further represents and warrants that Affiliate is solely responsible for its web site and all contents thereof and that the web site is in strict compliance with all regulations, rules and applicable laws including, but not limited to, all copyright, trademark and export laws. Affiliate grants Fun Party the right (but not the obligation) to monitor such compliance. Affiliates failure to comply, as determined in Fun Party’s sole and absolute discretion, shall result in the immediate termination of this Agreement.

10. Confidentiality and Non-Circumvention. Affiliate acknowledges and agrees that it will be privy to and learn confidential and Proprietary information belonging to Fun Party, including but not limited to the terms of this Agreement, business and financial information, Customer lists, vendor and supplier lists, pricing and sales information, and technological information, among other things (“Proprietary information”). This Proprietary information is and shall remain the sole and exclusive property of Fun Party. Disclosure to Affiliate shall not confer any rights, interest or license of any kind in or to such Proprietary information, except as provided under this Agreement and to the extent as provided herein. Affiliate agrees it shall use reasonable care and keep all such information confidential. Affiliate shall not use or disclose Confidential information, directly or indirectly, whether for its own purpose or another, except for the purpose and subject to the terms of this Agreement. Except as limited by law, Affiliate agrees that all such Trade Secrets shall remain a Trade Secret as the law provides and that confidential information shall remain confidential during the term of this Agreement and for a period of no less than such information is considered in the public domain. For purposes of this Agreement, Proprietary information includes Trade Secrets, Confidential Information, Graphic design and Marks. Trade Secrets include trade secrets as defined under Illinois law and Confidential Information includes all other information other than Trade Secrets.

11. Fun Party Disclaimer and Liability Limitation. FUN PARTY MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED WITH RESPECT TO ANY SERVICES AND/OR MERCHADISE SOLD THROUGH THE STORE. FUN PARTY MAKES NO REPRESENTATION OR WARRANTY AS TO ANY SERVICE OR MERCHANDISE TO BE FIT FOR A PARTICULAR PURPOSE, MERCHANTANTABILITY, NONINFRINGEMENT, OR ANY IMPLIED WARRANTY AS TO PERFORMANCE, DEALING OR TRADE USAGE.
NO REPRESENTATION IS MADE AS TO THE OPERATION OF THE STORE OR THAT THE OPERATION OF THE STORE WILL BE UNINTERRUPTED, ACCURATE, OR FREE OF ERRORS. AFFILIATE AGREES THAT FUN PARTY IS AND SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY INTERRUPTIONS, INACCURACIES OR ERRORS.

NEITHER FUN PARTY, ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS OR REPRESENTATIVES SHALL BE LIABLE TO AFFILIATE OR AFFILIATE’S CUSTOMERS FOR ANY INDIRECT, SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF DATA, LOSS OF ANY INTANGIBLE VALUE, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

AFFILIATE ACKNOWLEDGES AND AGREES, REGARDLESS OF THE NATURE OF THE CLAIM, THAT FUN PARTY DAMAGES SHALL BE LIMITED TO THE AMOUNT OF TOTAL COMMISSION THEN DUE AND OWING TO AFFILIATE UNDER THIS AGREEMENT.

12. Affiliate Indemnification. Affiliate agrees to indemnify and hold Fun Party harmless, its subsidiaries and related entities, shareholders, directors, officers, employees, agents and the like, against all claims, actions, demands, losses, judgments, damages, settlements, costs and expenses (including reasonable attorney fees) resulting from any third party claim or suit against Fun Party, to the extent such claim or suit results from any acts or omissions by Affiliate, Affiliate’s agents, employees and the like. Such claim or suit shall include, but not be limited to any claim that relates to the Fun Party use of Affiliate’s trademark, trade name, service mark, copyrights, license, or any other proprietary rights or the like, any claim related to Affiliate’s web site and/or any breach by Affiliate of the terms of this Agreement.

13. Term and Termination of Agreement. The term of this Agreement shall commence upon the acceptance of Affiliate’s Application and shall end upon termination of this Agreement as provided herein. This Agreement may be terminated, by either party, with or without cause, upon written notice to the other party. In the event of termination, Affiliate shall receive all commission and fees, if any, due Affiliate for sales in accordance with Section 6 of this Agreement provided Affiliate is not in breach of this Agreement.
A. Affiliate is eligible to earn commissions on sales occurring during the term of this Agreement and shall be paid provided the related orders are not returned or cancelled, or as otherwise provided under this Agreement.
i. Final payment due Affiliate may be withheld up to sixty days
in order to balance the commissions for returns and/or allowances.

14. Policies and Procedures. All changes to policies and/or operating procedures shall be posted on the Party Fun web site. Fun Party will use reasonable care to present accurate information on the Store, but cannot guarantee the price and/or availability of all merchandise. As long as this Agreement is in effect, promotions or contacts to Customers at the Store will be sent via e-mail to your Store.

15. Relationship of Affiliate and Fun Party. Affiliate and Fun Party are independent contractors. Affiliate has no authority to make, accept or in any manner modify Fun Party representations on behalf of Fun Party. Nothing in this Agreement will, or is intended to, create any employment, partnership, joint venture, agency, franchise or representative relationship between the parties.

16. Modification of Terms and Conditions. Fun Party reserves the right to modify the terms and conditions of this Agreement, including commission rates at any time. All such changes will be posted on its web site. In the event such modification is not acceptable to Affiliate, Affiliate shall have three business days to notify Fun Party, or it shall be presumed that Affiliate accepts such modification. In either event, Affiliate’s sole recourse is to terminate this Agreement in accordance with this Agreement.

17. Assignment. Without written consent, Affiliate may not assign, by operation of law or otherwise, this Agreement. Failure of Fun Party to strictly enforce the provisions of this Agreement shall not constitute a waiver of any provision of this Agreement and the terms and conditions of this Agreement shall inure to the benefit of and shall be enforceable against the parties to this Agreement and their successors and/or assigns.

18. Notices. Any notice required under this Agreement shall be deemed made as a written notice by e-mail, with a copy of such e-mail sent first class mail to the last known address to the other party.

19. Entire Agreement. This Agreement, including all modifications hereof, constitutes
the entire agreement between the parties and supercedes all prior Agreements, whether written or oral. This Agreement shall be considered signed when Affiliate clicks on the “I have read and accept this Affiliate Agreement” button and shall be considered an original document when printed from the electronic files maintained in the ordinary course of business. The parties agree not to contest the validity or enforceability of this Agreement under the provisions of any applicable law, including the requirement that such agreements are to be written and signed by the party to be bound hereby. Any and all provisions, terms and obligations intended by their nature, effect or enforceability to survive the termination of this Agreement shall survive this Agreement and remain binding upon and for the benefit of the parties hereto.
A. In the event any one or more of the provisions of this Agreement should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability or the remaining provisions shall not be affected or impaired.

20. Other.
A. All headings are for convenience only and are not to be construed as a part of
this Agreement or be used or interpreted to limit or define the scope of
any term in this Agreement.

B. This Agreement shall be deemed made in and governed by the laws of
the State of Illinois, County of Lake, regardless of the rules governing
choice of laws. Any action arising out of this Agreement must be brought
exclusively in the federal or state courts located in the County of Lake,
State of Illinois. Affiliate irrevocably consents to such personal
jurisdiction and venue in such courts and that service of process may
be effected by registered or certified mail.

C. Neither party shall be considered in default or liable to the other due to non- performance or delays due to causes beyond the reasonable control of the
party, including but not limited to fire, boycott, war, labor or civil disturbance, riots, acts of God, governmental orders or regulations.

21. Signature and Acknowledgment. Affiliate acknowledges that Affiliate has read this Agreement and agrees to be bound by the terms and conditions herein. Affiliate further acknowledges that Affiliate has evaluated its participation in this Co-branded Store, has made its own independent investigation and is not relying upon any representation, statement or guarantee by Fun Party, not set forth in this Agreement.

Go To Applicaton