This Agreement contains the Terms and Conditions applicable to an individual's or an entity's participation in the CrystalGraphics Pay-to-View Program (the "Program"). As used in this Agreement, "we", "us" or "our" refers to CrystalGraphics. "You" or "your" refer to the participant in the program. "Participant" shall mean a PowerShow.com user who has designated a presentation to be viewable on PowerShow.com to people who pay a fee. All dollars ($) shall mean United States dollars.
1. Participation in the Pay-to-View Program
Participation in the program is on a presentation by presentation basis. Participants will have the opportunity to declare each presentation they upload as being viewable on PowerShow.com for free or for a fee. They can change this setting at any time. Participants set the price that will be charged. The price will be in United States dollars.
We hold the right to evaluate your presentation and will notify you if your presentation is deemed to be unsuitable for the program. Unsuitable presentations include ones that:
- Promote violence
- Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- Promote unlawful activities
- Promote the use of bulk e-mail or "Spam"
- Contain content that is threatening, defamatory, fraudulent, obscene or harassing
- Violate intellectual property rights
If we determine a presentation is unsuitable for the program, you are welcome to resubmit it as a pay-to-view presentation after you have updated your presentation to remove content we have determined to be unsuitable.
3. Order Processing
a. Order Processing: We will be responsible for processing every order placed by a customer who pays the fee to view a presentation. Those responsibilities include order forms, payment processing, shipping, cancellations, returns and related customer service. Our rules, operating procedures and policies regarding customer orders and accounts apply to orders we receive. We reserve the right to reject any order for any reason, including any order that does not comply with our rules, operating procedures and policies or that violates applicable law.
b. Tracking of Sales: We will track sales made to customers who pay a fee to view a presentation. We may use fee-based order processing services.
c. CrystalGraphics Policy Applies to All Orders: Every customer who pays a fee through this program is deemed to be a customer of CrystalGraphics. You do not have the authority to make or accept any offer on our behalf. All of our policies regarding customer orders, including availability and problem resolution, will apply to these customers. We are not responsible for any representations you make which conflict with our policies.
d. Pricing: You will set the price that customers will be charged. The price is set on a presentation by presentation basis.
4. Commission Fees
a. Commission Fee Amount: We will pay the participant a 50% commission on net sales of the presentation, less returns and charge-backs. Net sales are gross sales minus the fees we pay for order processing.
b. Commission Fee Payment: We will send you a check for your unpaid commission fees and a statement of sales activity within 45 days after the end of each calendar quarter that your total accumulated unpaid commission fees equal or exceed $25.00. Amounts less than that will be held until the first calendar quarter in which the referral fees due equal or exceed $25.00, or until this Agreement is canceled, whichever comes first.
c. Returns and Cancellations: If a sale is later cancelled by the customer, its commission fee will be deducted from the next quarterly payment sent to you. If there is no next quarterly payment, you will be billed for this amount which is owed to us.
5. Monthly fee
You agree to pay a small monthly fee for each presentation you have in the program.
6. Responsibility for the presentations you upload
You will be solely responsible for the content of the presentations that you upload. And you will be solely responsible for the descriptive information that you register on PowerShow.com about the presentation: The title, description and tags. For example, you will be responsible for the accuracy and appropriateness of the title, descriptions and tags that you input when you upload or modify the settings of a presentation on PowerShow.com. And it is your responsibility to only upload presentations to PowerShow.com that do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy or other personal or proprietary rights) and for ensuring that they are not libelous or otherwise illegal.
a. We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages and expenses (including, without limitation, attorneys' fees) relating to the content or descriptive elements of your presentation.
7. Limited License
a. We grant you a non-exclusive, revocable right to participate in the Program. We reserve all of our rights in the PowerShow.com website and any of our trade names, trademarks and copyrights and all other intellectual property rights. We may revoke your license at any time by giving you written notice. Upon cancellation or termination of this Agreement, you agree to cease using all material created by PowerShow.com.
8. General Provisions
Website Service Interruption: CrystalGraphics will make every effort to keep its Website operational. However, certain technical difficulties may, from time to time, result in temporary service interruptions. You agree not to hold us liable for any of the consequences of such interruptions.
a. Term of the Agreement: You may only receive commission fee payments for orders that are properly placed during the term of this Agreement. This term will begin on the date that we notify you that you participate in the program and shall end when canceled or terminated by either party as provided below. Unless otherwise canceled or terminated, the Agreement will be for one (1) year and automatically renewed annually. Commission fees earned through the date of cancellation or termination of this Agreement will remain payable only if the sales are not returned or canceled from their orders. Payment of the final commission fee payment to you may be withheld for a reasonable time in order to ensure that the correct amount is paid.
b. Modifications: 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. Modifications may include, for example, changes in the scope of available commission fees, fee rates, payment procedures, and program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
c. Effect of Termination: Upon termination or expiration of this Agreement, Participant shall have no right or license to use the CrystalGraphics trademarks, copyrights, etc. in any manner. CrystalGraphics shall have no obligation to pay Participant any fees or charges, including Commission Fees, for sales after the expiration or termination of this Agreement for any reason. All provisions of this Agreement which by their nature are intended to service the expiration or termination of this Agreement shall survive and remain in full force and effect.
d. Cancellation of This Agreement: Either party may choose to cancel or terminate this Agreement at any time and for any reason by written notice of cancellation or termination to the other.
e. WARRANTY DISCLAIMER: WE MAKE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS WITH REGARD TO THE PROGRAM OR ANY PRODUCTS SOLD THEREUNDER, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ANY IMPLIED WARRANTY ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
f. LIMITATION OF DAMAGES: WE SHALL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE PROGRAM, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE PROGRAM SHALL IN NO EVENT EXCEED THE TOTAL COMMISSION FEES PAID OR PAYABLE BY US TO YOU UNDER THIS AGREEMENT.
g. Independent Contractors: You are an independent contractor and nothing in this Agreement is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative or employment relationship with us.
h. Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of California, excluding its conflict of laws principles. Any lawsuit relating to this Agreement must be brought in the federal or state courts located in Santa Clara, California.
i. Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreement.
j. Assignment. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent from CrystalGraphics. 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.
k. Waiver: 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.
l. Free to Contract with Others: You understand that we may at any time (directly or indirectly) solicit sales on terms that may differ from those contained in this Agreement or provide presentations that are similar to or compete with your presentation.
m. Independent Investigation: You have independently evaluated the desirability of participating in the program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
9. ACKNOWLEDGMENT AND ACCEPTANCE OF THE TERMS: BY CHECKING THE BOX ON THE WEB PAGE THAT YOU HAVE READ AND AGREE TO THESE TERMS AND CONDITIONS, YOU ACKNOWLEDGE THAT YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY AND AGREE TO ALL ITS TERMS AND CONDITIONS.