Affiliate
Agreement
This affiliate
agreement ("Agreement") contains the complete terms and conditions
that apply to your participation as an affiliate ("Affiliate" or
"you") in the affiliate program (the "Affiliate Program")
of Buddy Gift, LLC (the "Company", "us" or
"we"), and the establishment of links from your Affiliate website
to one or more of our websites buddygift.com (the "Sites"). 1.
Enrollment in the Affiliate Network. First,
you need to submit a complete affiliate application. We will evaluate your application
and will notify you of your acceptance or rejection in a timely manner. We
may reject your application if we determine (at our sole discretion) that
your site is unsuitable for the Affiliate Program for any reason. If
we reject your application, you are welcome to reapply to the Affiliate
Program at any time. 2.
Prohibited Sites. Prohibited
Sites for advertising Company products or services: o
Sites that promote sexually explicit material or violence. o
Sites that promote discrimination based on race, sex, religion,
national origin, or physical disability. o
Sites that promote illegal activities. 3.
Spam. Affiliate
agrees to not utilize unsolicited communications, or "spam"
(defined below), in promoting the Company or its Sites. This action may
result in the immediate suspension or termination of your Affiliate account
with a cancellation of any pending commissions. Affiliate will also be in
violation of this Agreement and subject to legal action and be held liable
for any financial loss incurred by the Company. Any service interruptions to
as a result of Affiliates spamming will be billed to Affiliate at US$200 per
hour until service is restored. For
the purpose of this Agreement, "spam" is defined as emailing, in
bulk or by single mailing, to anyone who has not specifically requested such
information directly from Affiliate regarding the Company, its Sites or
products. The ONLY exceptions to this definition are: a.
Mailing to APPROPRIATE OPT-IN mailing lists where the source does
the mailing on Affiliate's behalf. However, use extreme caution when choosing
an opt-in mailing list company! Using anything but the most reputable sources
could generate spam complaints against Affiliate resulting in suspension or
termination. b.
You may include information on the Company or the Sites in email
acknowledgement messages for orders and inquiries that you receive so long as
it is stated upfront that you will be sending them an acknowledgement. The
Company also considers ANY type of advertisement about the Company or the Sites
posted to a newsgroup to be spam. Violators will be fined at US$50 per
incident. 1.
Promotion of Our Affiliate Relationship. As
an Affiliate Site, we will make available to you banner and text links to our
Sites via your affiliate member panel (each of these links sometimes being
referred to herein as "Links" or, individually, as a
"Link"), which, subject to the terms and conditions hereof, you may
display as often and in as many areas on your site as you desire. The Links
will serve to identify your site as a member of our Affiliate Program and
will establish a link from your site to the applicable Site via the LinkShare Network. a.
Banner and Text Links: Subject
to the terms of clause b. below, we will provide you Links which will consist
of a graphic image provided by us (and subject to change from time to time in
our sole discretion) containing the Company's or any of the Sites' logos and
certain promotional text and images. This Link will connect your site
directly to our product sales transaction area. By utilizing this Link, users
of your site will be able to order, directly from us, any products that were
described or referenced on our Site. b.
Agreements Regarding Links: 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 in
your site only those graphic images (indicating a Link) that are provided by
us, and you will substitute such images with any new images provided by us
from time to time throughout the term of this Agreement. All Affiliate sites
shall display such graphic images prominently in relevant sections of its
site. 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. 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. 2.
Our Responsibilities. We
will be responsible for providing all information necessary to allow you to
make appropriate Links from your site to our Sites. We will be solely
responsible for processing every order placed by a customer following a
special Link from your site, for tracking the volume and amount of sales
generated by your site, and for providing information to Affiliate sites
regarding sales statistics. We will be responsible for order entry, payment
processing, shipping, cancellations, returns, and related customer service. 3.
Other Responsibilities and Opportunities of Affiliate Sites. a.
Display of Links: If
you qualify and agree to participate as an Affiliate, you shall display Links
prominently throughout your site as you see fit and with our consent. b.
Contests and Promotions:
i.
As an Affiliate, you will be entitled to participate and promote on
your site sweepstakes, contests, and special promotions we may offer. In
addition, you will be entitled to earn commissions as set forth in sections 7
and 8 below.
c.
Compliance with the Agreement: 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. d.
Update to Company search policy:
i.
Affiliates may not use any of the Company's or the Sites' visible
URLs - you must not represent yourself as, for example, the Buddy Gift Site
(i.e., Affiliates can't use www.buddygift.com, www.buddygifts.com,
www.buddy-gift.com, but they can use www.affiliatesamplesite.com).
ii.
Affiliates may not use any of the Company's trademarks, service
marks, or copyrighted materials without prior permission.
iii.
Affiliates may not outbid the Company within any online or automated
search mechanisms with regard to any branded terms of the Company or of any
of the Sites. Our branded terms are: Buddy Gift, buddygift.com.
iv.
Violation of the above terms will result in your termination from
the Affiliate Program immediately. 4.
Commission Determination. The
purchase price of Site products will count toward the total sales during the
calendar month in which such Site's products are sold. Only products that are
sold by us (to users of your site linked to our Site), shipped to a customer,
and for which we have received full payment will qualify for a commission.
Commission rates will vary based upon the volume of sales made on your site. Commission
rates will begin at eight percent (5%) and could reach as high as fifteen
percent (10%) of Net Sales (defined below) depending on the amount of sales
generated by Affiliate. Commissions are up to the sole discretion of the
Company and are eligible for change at any time. For purposes of this
Agreement, "Net Sales" shall mean amounts collected by us from
customers purchasing products directly through your Affiliate Links,
excluding all sales taxes, duties, shipping, handling, and similar charges,
amounts due to credit card fraud and bad debt, orders placed for same day
delivery through our "Florist Express" service, international delivery
or similar services, order replacements and credits for returned goods
("Net Sales"). 5.
Commission Payment. Based
on Net Sales received by us in connection with sales of products purchased by
your users through a Link to our Sites, We will send a commission fee check (or
paypal payment) for the applicable commission fee
(less any taxes required to be withheld under applicable law). 6.
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. 7.
Your Responsibilities. You
are solely responsible for ensuring that reviews, descriptions, and articles
on your site comply with applicable copyright and other laws. You must have
express permission to use another party's copyrighted or other proprietary
material. We are not responsible for violations. 8.
Policies and Pricing. Customers
who buy flowers through the Affiliate Program will be deemed to be customers
of the Company. Accordingly, all of our rules, policies, and operating
procedures concerning customer orders, customer service, and 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 the Affiliate 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 should not include price information in your product descriptions. 9.
Publicity. You
shall not create, publish, distribute, or permit any written material that
makes reference to us without first submitting such material to us and
receiving our written consent. 10.
Licenses and Use of Company Logos and Trademarks. a.
WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS IN ACCORDANCE WITH
THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS AND
UNDER THE CONDITIONS PROVIDED FOR HEREIN, TO USE OUR LOGOS, TRADE NAMES,
TRADEMARKS, AND SIMILAR IDENTIFYING MATERIAL RELATING TO US (COLLECTIVELY,
THE "LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF SELLING OUR
PRODUCTS ON YOUR SITE FOR THE COMPANY. YOU MAY NOT ALTER, MODIFY, OR CHANGE
THE LICENSED MATERIALS IN ANY WAY WITHOUT WRITTEN PERMISSION. YOU ARE ONLY
ENTITLED TO USE THE LICENSED MATERIALS WHILE YOU ARE A MEMBER IN GOOD
STANDING OF THE AFFILIATE PROGRAM. b.
You shall not make any specific use of any Licensed Materials for
purposes other than selling our products on your site for the Company,
without first submitting a sample of such to us and obtaining the prior
written consent of your account executive here at the Company. 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. c.
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. This
license shall terminate upon the effective date of the expiration or
termination of this Agreement. 11.
Obligations Regarding Your Site. a.
You will be solely responsible for the development, operation, and
maintenance of your site and for all materials that appear on your site. Such
responsibilities include, but are not limited to, the technical operation of
your site and all related equipment; creating and posting flowers, descriptions,
and references on your site and linking those descriptions to our site; the
accuracy and propriety of materials posted on your site (including, but not
limited to, all product-related materials); ensuring that materials posted on
your site do not violate or infringe upon the rights of any third party and
are not otherwise illegal. b.
We disclaim all liability for all such matters. Further, you will
indemnify and hold us harmless from all claims, damages, and expenses
(including, without limitation, attorneys' fees) relating to the development,
operation, maintenance, and contents of your site. 12.
Term of the Agreement. The
term of this Agreement will begin upon our acceptance of your Affiliate
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. You are only eligible
to earn commission fees on sales occurring during the term, and fees earned
through the date of termination will remain payable only if the related
product orders are not cancelled. We may withhold your final payment for a
reasonable time to ensure that the correct amount is paid. 13.
Modification. We
may modify any of the terms and conditions contained in this Agreement, at
any time in our sole discretion. Modifications may include, but are not
limited to, changes in the scope of available commission fees, commission
schedules, payment procedures, and Affiliate Program rules. If any
modification is unacceptable to you, your 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 Sites will constitute
binding acceptance of the change. 14.
Relationship of Parties. You
and the Company 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. 15.
Disclaimers. We
make no express or implied warranties or representations with respect to the Affiliate
Program or any product sold through the Affiliate Program (including, without
limitation, warranties of fitness, merchantability, or any implied warranties
arising out of course of performance, dealing, or trade usage). 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. 16.
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 in
accordance with its terms. b.
The execution, delivery, and performance by you of this Agreement
and the consummation by you of the transactions discussed herein 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 you or your
assets. 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 (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
discussed herein. 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. 17.
Confidentiality. Except
as otherwise provided in this Agreement or with the consent of the other
party hereto, each of the parties hereto 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, concerning us or you, respectively, or any of our affiliates
provided by or on behalf of any of them shall remain strictly confidential
and secret and shall not be utilized, directly or indirectly, by such party for
its own business purposes or for any other purpose except and solely to the
extent that any such information is generally known or available to the
public through a source or sources other than such party hereto or its
affiliates. 18.
Limitation of Liability. WE
WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL 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. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS
AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSION FEES
PAID OR PAYABLE TO YOU FOR THE PREVIOUS THREE MONTHS UNDER THIS AGREEMENT. 19.
Indemnification. You
hereby agree to indemnify and hold harmless the Company, and its parents,
subsidiaries and affiliates, and their directors, officers, employees,
agents, stockholders, 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, content therein not
attributable to us. 20.
Independent Investigation. YOU
ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND
CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF
PARTICIPATING IN THE AFFILIATE NETWORK AND ARE NOT RELYING ON ANY
REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET 21.
Governing Law. This
Agreement will be governed by the laws of the |