AFFILIATE AGREEMENT
This Agreement contains the complete terms and conditions
that apply to an individual's or entity's participation in the Giftapolis.com
Affiliates Program (the "Program"). As used in this Agreement, "we
or client" means giftapolis.com, and "you" means the applicant.
"Site" means a World Wide Web site and, depending on the context,
refers to any site that you will link to our site (and which you will identify
in your Program application).
1. Enrollment
in the Program
To begin the enrollment process,
you will submit a complete Program application via our site. 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 (in our sole
discretion) that your site is unsuitable for the Program. Unsuitable sites
include those that:
o
promote sexually explicit materials
o
promote violence
o
promote discrimination based on race, sex,
religion, nationality, disability, sexual orientation, or age
o
promote illegal activities
o
include giftapolis, shirtapolis or misspellings thereof in their domain names
o
otherwise violate intellectual property rights
If we reject your application, you are welcome to reapply to
the program. You should also note that if we accept your application and your
site is thereafter determined (in our sole discretion) to be unsuitable for the
Program, we may terminate this Agreement.
2. Links
on Your Site
Once you have been notified that your site has been accepted
into the Program, you may provide on your site one or more of the following
types of links to our site:
a.
Product Links: You may select one or more Products to
list on your site. A "Product" is any product listed on our site that
is fulfilled by us, or any product sold by a third party seller on our site;
but excluding any product offered through our site not sold and fulfilled by
us, such as a product sold by a third party through a site linked to from our
site. For each selected Product, you will display on your site a short
description, review, or other reference. You will be responsible for the
content, style, and placement of these references. You will provide a Special
Link (as defined below) from each Product reference on your site to the
corresponding Client website. Each such link will connect to our web site. You
may add or delete Products (and related links) from your site at any time
without our approval.
b.
General Link to Client Home Page: You may provide a
general link on your site to our home page at www.giftapolis.com.
c.
Client Recommend Link: If your site qualifies (as
determined by us in our sole discretion), you may place a Client Recommends
link on your site to enable Client to serve recommended content based on your
site's specialty or sales history directly to visitors to your site.
We will provide you with guidelines and graphical artwork to
use in linking to our home page. To permit accurate tracking, reporting, and
referral fee accrual, we will provide you with special "tagged" link
formats to be used in all links between your site and our site. 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." You will earn referral fees only 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 that
would otherwise be paid to you pursuant to this Agreement.
You acknowledge that, by participating in the Affiliates
Program and placing any of the above links within your site, Client may receive
information from or about visitors to your site or communications between your
site and those visitors. Your participation in the Client program constitutes
your specific and unconditional consent to and authorization for Client access
to, receipt, storage, use, and disclosure of any and all such information,
consistent with the policies and procedures set forth in the Client Privacy
Notices.
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 to reject orders
that do not comply with any requirements that we may establish periodically. We
will be responsible for all aspects of order processing and fulfillment. Among
other things, we will prepare order forms, process payments, cancellations, and
returns, and handle customer service. We will track sales made to customers who
purchase Products by using Special Links from your site to our site and will
make available to you reports summarizing this sales activity. The form,
content, and frequency of the reports may vary from time to time in our
discretion.
4. Referral
Fees
We will pay you (in accordance with Sections 5 and 8 below)
referral fees on certain Product sales to third parties. For a Product sale to
be eligible to earn a referral fee, the customer must click-through a Special
Link from your site to our site, and add the Product to his or her shopping
cart.
You may not purchase products during sessions initiated
through the links on your site for your own use, for resale or commercial use
of any kind. This includes orders for customers or on behalf of customers or
orders for products to be used by you or your friends, relatives, or Affiliates
in any manner. Such purchases may result (in our sole discretion) in the
withholding of referral fees or the termination of this Agreement. Products
that are eligible to earn referral fees under the rules set forth above are
referred to as "Qualifying Products."
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); (b) read, intercept, record,
redirect, interpret, or fill in the contents of any electronic form or other
materials submitted to us by any person or entity; (c) in any way modify,
redirect, suppress, or substitute the operation of any button, link, or other
interactive feature of our site; (d) make any orders or subscription requests,
or engage in other transactions of any kind on our site on behalf of any third
party, or authorize, assist, or encourage any other person or entity to do so;
(e) take any action that could reasonably cause any customer confusion as to
our relationship with you, or as to the site on which any functions or
transactions (e.g., search, order, browse, and so on) are occurring; or (f)
post or serve any advertisements or promotional content around or in
conjunction with the display of our site (e.g., through any "framing"
technique or technology or pop-up windows), or assist, authorize, or encourage
any third party to take any such action. If we determine, in our sole
discretion, that you have engaged in any of the foregoing activities, we may
(without limiting any other rights or remedies available to us) withhold any
referral fees otherwise payable to you under this Agreement and/or terminate
this Agreement.
5. Referral
Fee Schedule
You will earn referral fees based on Qualifying Revenues
according to referral fee schedules to be established by us. "Qualifying
Revenues" are revenues derived by us from our sales of Qualifying
Products, excluding costs for shipping, handling, , taxes, service charges,
credit card processing fees, returns and bad debt. The current referral fee
schedule is 8% of Qualifying Revenues from each sale of Client's products.
6. Commissions
Payment
We will pay you when your commissions due are at least $20. In
calculating referral fees, we will deduct the corresponding referral fee from
your next monthly payment if a Product that generated a referral fee is
returned by the customer. If there is no subsequent payment, we will send you a
bill for the referral fee. We will also deduct a $.50 processing fee per check
issued.
Policies and Pricing
Customers who buy products through this Program will be
deemed to be customers of Client. 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. We will use commercially
reasonable efforts to present accurate information, but we cannot guarantee the
availability or price of any particular product.
7. Identifying
Yourself as an Affiliate
You may not issue any
press release with respect to this Agreement or your participation in the
Program; such action may result in your termination from the Program. 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 Client supports, sponsors,
endorses, or contributes money to any charity or other cause).
8. Limited
License
We grant you a nonexclusive, revocable right to use the
graphic image and text described in Section 8 and such other text or images for
which we grant express permission, solely for the purpose of identifying your
site as a Program participant and to assist in generating Product sales. You
may not modify the graphic image or text, or any other of our images, in any way.
We reserve all of our rights in the graphic image and text, any other images,
our trade names and trademarks, and all other intellectual property rights. You
agree to follow our Trademark Guidelines, as those guidelines may change from
time to time. We may revoke your license at any time by giving you written
notice.
9. Responsibility
for Your Site
You will be solely responsible for
the development, operation, and maintenance of your site and for all materials
that appear on your site. For example, you will be solely responsible for:
o
the technical operation of your site and all
related equipment
o
creating and posting Product descriptions on
your site and linking those descriptions to our catalog
o
the accuracy and appropriateness of materials
posted on your site (including, among other things, all Product-related
materials)
o
ensuring that materials posted on your site do
not violate or infringe upon the rights of any third party (including, for
example, copyrights, trademarks, privacy, or other personal or proprietary
rights)
o
ensuring that materials posted on your site are
not libelous or otherwise illegal
o
ensuring that your site accurately and
adequately discloses, either through a privacy policy or otherwise, how you
collect, use, store, and disclose data collected from visitors, including,
where applicable, that third parties (including advertisers) may serve content
and/or advertisements and collect information directly from visitors and may
place or recognize cookies on visitors' browsers.
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 development,
operation, maintenance, and contents of your site.
10. 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, and all Client trademarks, trade dress,
and logos, and all other materials provided by or on behalf of us to you
pursuant hereto or in connection with the Program. You are eligible to earn
referral fees only on our sales of Qualifying Products that occur during the
term, and referral 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 the correct
amount is paid.
11. Modification
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 referral fees, referral fee schedules,
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.
12. Relationship
of Parties
You and we 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.
13. Limitation
of Liability
We will not be liable for indirect, special, or consequential
damages (or any loss of revenue, profits, or data) arising in connection with
this Agreement or the 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 Program will not exceed the total referral fees paid or
payable to you under this Agreement.
14. Disclaimers
We make no express or implied warranties or representations
with respect to the Program or any products sold through the 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
site will be uninterrupted or error-free, and we will not be liable for the
consequences of any interruptions or errors.
15. Independent
Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE
TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME
(DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER
FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO
OR COMPETE WITH YOUR WEB SITE. 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
16. Arbitration
Any dispute relating in any way to this Agreement (including
any actual or alleged breach hereof), any transactions or activities under this
Agreement or your relationship with us or any of our affiliates shall be
submitted to confidential arbitration in Denver, Colorado, except that, to the
extent you have in any manner violated or threatened to violate our
intellectual property rights, we may seek injunctive or other appropriate
relief in any state or federal court in the state of Colorado (and you consent
to non-exclusive jurisdiction and venue in such courts) or any other court of
competent jurisdiction. Arbitration under this agreement shall be conducted
under the rules then prevailing of the American Arbitration Association. The
arbitrator's award shall be binding and may be entered as a judgment in any
court of competent jurisdiction. To the fullest extent permitted by applicable
law, no arbitration under this Agreement shall be joined to an arbitration
involving any other party subject to this Agreement, whether through class
arbitration proceedings or otherwise.
17. Miscellaneous
This Agreement will be governed by
the laws of the