AFFILIATE PROGRAM TERMS & CONDITIONS
This Master Agreement is made between BabyDirect and its affiliate partners.
BACKGROUND
Partner and BabyDirect are each enrolled in The Shareasale Network.
Partner and BabyDirect each desire to establish the general terms and
conditions which shall govern advertising and commission arrangements
between Partner and BabyDirect which result from their participation in
The Shareasale Network.
TERMS AND CONDITIONS
To begin the enrollment process, you need to submit a complete
Program application at the Shareasale Site located at
www.Shareasale.com. We will evaluate your application and will notify
you through the Shareasale Site of your acceptance or rejection. We may
reject your application for any reason, including, but not limited to our
determination, in our sole discretion, that your Site is unsuitable for the
Program. Unsuitable Sites include, but are not limited to, those that: (a)
contain or link to nudity or pornography or promote sexually explicit
materials; (b) promote violence; (c) promote discrimination based on race,
sex, religion, nationality, disability, sexual orientation, or age; (d) promote
illegal activities; (e) infringe our intellectual property rights or those of any
third party or otherwise violate the rights of any third party; (f) contain, in
our sole judgment, material that is defamatory, fraudulent, or harassing to
us or any third party; (g) promote the use of any pyramid or similar schemes;
or (h) include "BabyDirect®" or variations or misspellings thereof,
in their domain names or in any metatags or other hidden text.
If we accept your application, Shareasale will provide you with access to
its affiliate gateway on the Shareasale Network. You should also note that
if we accept your application and your Site is determined in our sole
discretion to be unsuitable for the Program, we may terminate this
Agreement at any time. If we temporarily reject your application,
you are welcome to reapply to the Program after 14 days. If we
permanently reject your application, you are unable to reapply to
the Program.
In consideration of the promises set forth below, we agree as follows:
1. Offers and Engagements.
1.1. From time to time, BabyDirect may post on The Shareasale Network
offers to pay to other participants a specified commission in return for certain
advertising services leading to a Qualifying Link (defined below). If such offers
receive an identification number from The Shareasale Network they shall be
deemed to be an "Offer" for purposes of this Agreement. The term "Offer" shall
also include any counter-offers resulting from an Offer.
1.2. If an Offer made by one party is accepted by the other party in accordance
with the Offer's terms via The Shareasale Network, an "Engagement" will have
been formed. Each Engagement shall have the same identification number as the
original Offer that lead to the Engagement and shall be governed by the terms and
conditions of this Agreement. However, in the event of any inconsistency between
the terms of the specific Engagement and the terms of this Agreement, the terms
of the Engagement shall govern.
1.3. At any time prior to Partner providing a Qualifying Link, BabyDirect may with
or without notice (a) change, suspend or discontinue any aspect of an Offer or an
Engagement or (b) remove, alter, or modify any graphic or banner ad submitted
by BabyDirect for an Offer or an Engagement. Partner agrees to promptly
implement any request from BabyDirect to remove, alter or modify any graphic
or banner ad submitted by BabyDirect that is being used by Partner as part of an
Engagement.
2. Partner's Responsibilities.
2.1. Partner will link its site to areas within BabyDirect's site using special URLs
specified in the Engagement (the "Required URLs"). Partner may post as many
links to the Required URLs and the rest of BabyDirect's site as it likes on Partner's
site. The position, prominence and nature of links on the Partner's site
shall comply with any requirements specified in the Engagement, but
otherwise will be in the discretion of Partner.
2.2. Partner agrees not to make any representations, warranties or other statements
concerning BabyDirect, BabyDirect's site, any of BabyDirect's products or services, or BabyDirect's site policies, except as expressly authorized by the Engagement.
2.3. Partner is responsible for notifying BabyDirect and The Shareasale Network
of any malfunctioning of the Required URLs or other problems with Partner's
participation in the Engagement. BabyDirect will respond promptly to all concerns
upon notification by Partner.
2.4. Partner agrees to abide by the BabyDirect privacy policy posted on
BabyDirect's site here: http://www.babydirect.com/t-affiliates.aspx
2.5. Partner agrees that it shall in no way engage in cybersquatting tactics. This includes but is not limited to domain squatting, trademark squatting, and misspellings of trademarked names.
2.6 Partner agrees that they will not engage in any keyword bidding on BabyDirect's
trademark names, misspellings or similar spellings, which include the following:
BabyDirect, babydirect, babydirect.com, baby direct
2.7 Partner agrees that they will not engage in any email activity that is not in accordance
with the U.S. Federal Government’s Can Spam Act of 2003.
2.9 Partner agrees that they will not engage in any keyword bidding on the trademarked names of BabyDirect's competitors in an attempt to direct traffic to websites owned by BabyDirect.
2.10 Partner agrees to not market any erroneous and/or unauthorized coupon codes. Affiliate will forfeit any commission/s earned through the use of unauthorized coupon codes via manual adjustment to the affiliate invoice at the end of each pay period.
2.11 Partner agrees that they will not use any BabyDirect vendor name brands in their website domain name (for example, www.strollioutlet.com). The current list of BabyDirect’s vendors can be found at: http://www.babydirect.com/manufacturers.aspx.
3. Commissions.
3.1. BabyDirect agrees to pay Partner the commission specified in the Engagement
if BabyDirect sells to a visitor to BabyDirect's site (a "Customer") a product or
service that is the subject of the Engagement and if that Customer has accessed
BabyDirect's site and purchased the product or service via a Qualifying Link.
3.2. A "Qualifying Link" is a link from Partner's site to BabyDirect's using one
of the Required URLs or any other URL provided by BabyDirect for use in
The Shareasale Network if it is the last link to the BabyDirect's site that the
Customer uses during a Session where a sale of a product or a service to
Customer occurs.
A "Session" is the period of time beginning from a Customer's initial contact
with BabyDirect's site via a link from the Partner's site and terminating when
the Customer either returns to the BabyDirect's site via a link from a site other
than Partner's site or the Engagement expires or is terminated.
3.3. BabyDirect shall have the sole right and responsibility for processing all
orders made by Customers. Partner acknowledges that all agreements
relating to sales to Customers shall be between BabyDirect and the Customer.
3.4. All determinations of Qualifying Links and whether a commission is
payable will be made by The Shareasale Network and will be final and
binding on both BabyDirect and Partner. Prices for the products will be set
solely by BabyDirect in its discretion.
3.5 No commission may be earned for purchases made from other stores
operated by third parties that may be accessible from Partner's site.
3.6 Commission may be earned only on credit card or gift card transactions. Purchases
paid by other methods are not eligible for commissions. Additionally, BabyDirect
does not pay commission on the sale of giftcards.
3.7 In the event BabyDirect, in its sole discretion, suspects fraud or other
unlawful conduct by partner or by any third party accessing BabyDirect's
site through links on Partner's site, BabyDirect shall be entitled to suspend
or deny payments in whole or in part to Partner in BabyDirect's sole
discretion.
4. Ownership and Licenses.
4.1. Each party owns and shall retain all right, title and interest in its
names, logos, trademarks, service marks, trade dress, copyrights and
proprietary technology, including, without limitation, those names, logos,
trademarks, service marks, trade dress, copyrights and proprietary
technology currently used or which may be developed and/or used by
it in the future.
4.2. BabyDirect grants Partner a revocable, non-exclusive, worldwide
license to use, reproduce and transmit the name, logos, trademarks,
service marks, trade dress and proprietary technology, as designated
in the Engagement or during the registration process in The Shareasale
Network, on Partner's site solely for the purpose of creating links
from Partner's site to BabyDirect's site during Engagements. Except as
expressly set forth in this Agreement or permitted by applicable law,
Partner may not copy, distribute, modify, reverse engineer, or create
derivative works from the same. Partner may not sublicense, assign
or transfer any such licenses for the use of the same, and any attempt
at such sublicense, assignment or transfer is void.
4.3. Partner grants BabyDirect a non-exclusive, worldwide, royalty-free
license to use, reproduce and transmit any graphic or banner ad
submitted by Partner solely for co-branding purposes or as a return
link from BabyDirect's site to Partner's site. BabyDirect will remove such
graphic or banner ad upon Partner's request.
5. Termination.
5.1. Either party may terminate any Engagement at any time by deleting
their acceptance of the Engagement through The Shareasale Network.
Termination of an Engagement shall not terminate this Agreement or any
other Engagement.
6. Representations.
6.1. Each party represents to the other that (a) it has the authority to enter
into this Agreement and sufficient rights to grant any licenses granted hereby,
and (b) any material which is provided to the other party and displayed on the
other party's site will not (i) infringe on any third party's copyright, patent,
trademark, trade secret or other proprietary rights or right of publicity or
privacy; (ii) violate any applicable law, statute, ordinance or regulation;
(iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v)
violate any laws regarding unfair competition, anti-discrimination or false
advertising; (vi) promote violence or contain hate speech; or (vii) contain
viruses, trojan horses, worms, time bombs, cancelbots or other similar
harmful or deleterious programming routines.
6.2. EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER
PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES
TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO,
ANY IMPLIED WARRANTIES OF BabyDirect ABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
7. Cross-Indemnification.
7.1. Each party hereby agrees to indemnify, defend and hold harmless the
other party and its affiliates, directors, officers, employees and agents,
from and against any and all liability, claims, losses, damages, injuries or
expenses (including reasonable attorneys' fees) brought by a third party,
arising out of a breach, or alleged breach, of any of its representations or
obligations herein.
8. Shareasale Required Provisions.
8.1. BabyDirect and Partner jointly and severally hereby agree to indemnify,
defend, and hold harmless The Shareasale Network and Shareasale
Corporation and its affiliates, officers, directors, employees and agents
(collectively, "Shareasale") from and against any and all liability, claims,
losses, damages, injuries or expenses (including reasonable attorneys' fees)
directly or indirectly arising from or relating to any Offer, Engagement, any
other matter related to this Agreement or the subject matter hereof any
dispute relating thereto.
8.2. The parties agree that Shareasale may rely on any data, notice,
instruction or request furnished to Shareasale by either party which is
reasonably believed by Shareasale to be genuine and to have been sent
or presented by a person reasonably believed by Shareasale to be
authorized to act on behalf of one of the parties. In the event of any
dispute between the parties, the parties agree that to the extent the
parties contact and involve Shareasale, Shareasale may consult with
and use counsel of its own choice in connection with such dispute and
the reasonable fees and disbursements of Shareasale's counsel shall be
within the costs and disbursements covered by the indemnity specified
in Section 8.1 above.
8.3. The parties acknowledge and agree that this Agreement and the
Engagements are only made possible due to Shareasale and that the
parties shall not, for the duration of this Agreement and for twelve (12)
months thereafter, enter into any advertising, collaborations or other
commercial arrangements with each other in connection with their sites
on the World Wide Web except via The Shareasale Network.
9. Limitation of Liability.
9.1. In no event shall either party be liable to the other party for any
direct, indirect, special, exemplary, consequential or incidental damages,
even if informed of the possibility of such damages.
9.2. The parties agree that The Shareasale Network and Shareasale
Corporation and its affiliates, officers, directors, employees and agents
shall not be liable to either party for any direct, indirect, special,
exemplary, consequential or incidental damages, even if informed of
the possibility of such damages.
10. General.
10.1. Each party shall act as an independent contractor and shall have
no authority to obligate or bind the other in any respect.
10.2. The parties agree that The Shareasale Network and Shareasale
Corporation are intended third party beneficiaries under this Agreement.
10.3. This Agreement has been made in and shall be construed and
enforced in accordance with the laws of the state of BabyDirect's
headquarters. Any action to enforce this Agreement shall be brought
in the federal or state courts located in that state. If you need to send
official correspondence, send it via registered mail to BabyDirect's
headquarters to the attention of BabyDirect's legal department.
10.4. This Agreement may be agreed to in more than one counterpart,
each of which together shall form one and the same instrument. The
parties agree that execution may be achieved in any format convenient
to the parties.
10.5. The provisions of this Agreement are independent of and
separable from each other, and no provision shall be affected or
rendered invalid or unenforceable by virtue of the fact that for any
reason any other or others of them may be invalid or unenforceable
in whole or in part.
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