Affiliate Program Agreement
This Affiliate Program Agreement ("Agreement") contains the complete terms and conditions that apply to your participation in the HearthSong Affiliate Program and the establishment of links from your web site to the HearthSong web site located at www.hearthsong.com"(the "Web Site"). You may also be referred to herein as "PARTICIPANT", "You" or "Party". HearthSong. may also be referred to as "HearthSong.", "hearthsong.com", "We" or "Us".
1. The Affiliate Program:
(a) As a PARTICIPANT, we will make available to you via the Web Site a variety of graphic, product, textual and other links as determined by HearthSong. (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions of this Agreement, you may display as often and in as many areas of your web site as you desire. The Links will serve to identify your site as a PARTICIPANT of our Affiliate Program and will establish a link from your site to the Web Site for your participation in the Affiliate Program. You agree that you will display on your Web Site only those Links that are provided to you by HearthSong. through the LinkShare Network.
(b) To commence the process of enrolling as a PARTICIPANT in the Affiliate Program, you will submit an Enrollment Application via our Web Site or as otherwise authorized by HearthSong. We will evaluate your application and notify you of your acceptance or rejection; which determination shall be in our sole discretion.
(a) This Agreement is conditioned upon and will become effective on our acceptance of your Enrollment Application and your acceptance of the terms of this Agreement. By joining or participating in the Affiliate Program you are acknowledging that You have read this Agreement and are agreeing to abide by all the terms of this Agreement, which may be amended from time to time in the sole discretion of HearthSong. We will notify You of any amendment by posting a notice on the Web Site or, in our sole discretion, by E-mail and Your continued participation in the Affiliate Program after such notice is posted or sent via E-mail shall constitute your binding and legally enforceable agreement to such amendment and acceptance of the Agreement as amended. Either party may terminate this Agreement at any time, with or without cause by giving the other party notice of termination. The first twelve months following the date this Agreement becomes effective and every twelve months thereafter that this Agreement remains in full force and effect are each a "Term Year". You fully understand that this Agreement creates legally binding obligations on Your part.
(b) PARTICIPANT is only eligible to earn commissions on sales which are completed during the term of this Agreement, and commissions earned through the date of termination will be payable only if the related purchases are not canceled or returned. HearthSong. may withhold PARTICIPANT'S final payment for a reasonable time to ensure that the correct amount is paid.
(a) For products that are purchased by consumers upon linking to the Web Site directly from your web site, or other approved promotional tools (e.g. emails), utilizing a URL(s) approved by HearthSong. and or which HearthSong. has delivered the ordered products and received full payment (each a "Qualifying Purchase(s)"), PARTICIPANT will receive the following commission which will be based on "Net Sales" of Qualifying Purchase(s):an 8% commission on all monthly Net Sales. "Net Sales" is defined as the gross sales price of a Qualifying Purchase less taxes, service charge, shipping, relay and handling charges, discounts, gift certificates, promotional offers (e.g., airline miles, points, e-money etc.), credit card processing fees, credits, refunds, rebates and chargebacks. We may make other offers available to You through The LinkShare Network from time to time; which offers may be changed, suspended or discontinued by HearthSong. at any time without notice. PARTICIPANTS are responsible for inserting a tracking code in the manner designated by HearthSong. to ensure accurate tracking of Qualifying Purchases.
(b) HearthSong. will pay you or cause you to be paid, through the LinkShare Network, within thirty (30) days after the end of each calendar month in accordance with the above mentioned commission structure provided total commissions due to you for such month exceed Twenty-Five Dollars ($25). The check (or other alternate payment method as selected by HearthSong.) will be for the applicable commission (less any taxes required to be withheld pursuant to applicable law). For any calendar month in which your commissions do not exceed $25, HearthSong. shall have the option to pay same or to withhold such payment and add such commissions to the next calendar month for which you are entitled to receive a commission payment. Furthermore, you will be given a user name and password which will enable you to receive your sales statistics on a reasonable basis. All payment inquiries must be directed to the LinkShare Network.
4. Legal Compliance; Representations and Warranties:
5. Maintenance; Representations and Warranties:
(a) PARTICIPANT shall monitor and periodically test the general availability and operation of its web site. PARTICIPANT represents and warrants that its web site will perform adequately so that customers will be able to shop for HearthSong's products.
(b) PARTICIPANT is solely responsible for the development, operation and maintenance of its web site and for all materials and content that appear on PARTICIPANT'S web site. Such responsibilities include, but are not limited to, the technical operation of PARTICIPANT'S web site and all related equipment; the accuracy and propriety of all materials and content posted on PARTICIPANT'S web site; and ensuring that materials and content posted on its web site will not (i) violate any laws, rules or regulations; (ii) violate or infringe upon the rights of any third party including, without limitation, copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (iii) be lewd, pornographic, sexually explicit, or obscene; (iv) violate any laws regarding unfair competition, anti-discrimination or false advertising; (v) promote violence or contain hate speech, (vi) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious program routines; or (vii) be libelous, harmful, threatening, abusive, harassing, defamatory, derogatory or otherwise illegal or objectionable to HearthSong.; (viii) be a homepage or a personal website created through free webspace offered by third parties; (ix) use or promote promotion codes, coupon codes or any discount offers unless specifically authorized by HearthSong.; (x) contain promotional materials about HearthSong. or the Affiliate Program unless specifically authorized by HearthSong. and (xi) be operated in a language other than English. PARTICIPANT shall not (a) include any of the Marks as defined in Section 8, or variations or misspellings thereof in any of Participant's domain names or any metatags; (b) send any emails or other promotional or marketing materials which mention HearthSong., the Affiliate Program or the Web Site without the prior written consent of HearthSong.; (c) shall not make any press releases or other public statements regarding the Affiliate Program or HearthSong. or the Web Site without first obtaining the express written approval from HearthSong.; (d) take any action that could reasonably cause any customer confusion as to our relationship with You, or as to the web site on which any functions or transactions (e.g., search, order, browse, etc.) are occurring; (e) post or serve any advertisements or promotional content around or in conjunction with the display of the Web Site (e.g., through any "framing" technique or technology or pop-up windows; (f) purchase or bid for placement any of HearthSong's trademarked company names, including any variation of our trademarked names, service marks, or copyrighted terms and logos, where the use of such trademarks is in the title, description, or display URL of the paid ad; (g) utilize software downloads that potentially enable diversions of commission from other affiliates in our program; (h) ulitze pop-up, pop-under, or automatic redirects to the HearthSong website.
(c) HearthSong. disclaims all liability for all matters set forth in Section 4 and 5(b). Further, PARTICIPANT will indemnify and hold HearthSong., its parent company, subsidiaries, affiliates and their respective officers, directors, shareholders and employees free and harmless against and from all claims, damages, losses, liabilities and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of PARTICIPANT'S web site.
(d) HearthSong. reserves the right, in its sole discretion, to monitor PARTICIPANT'S Web Site, at any time and from time to time, to ascertain whether PARTICIPANT is in compliance with the terms of this Agreement.
HearthSong. will fulfill all fully paid orders for products in accordance with HearthSong's customary business practices. HearthSong. shall be solely responsible for fulfilling all orders placed by a customer as a direct result of the Links. HearthSong's products offered through the Links will be supported by the same favorable warranty and return policy for such products as offered through other HearthSong's channels. Customers who purchase through the Affiliate Program are deemed to be customers of HearthSong. Accordingly, all of HearthSong's rules, policies, and operating procedures concerning customer orders, customer service, and use of customer names and information, will apply to those customers.
(a) Any promotional or advertising activities you may wish to engage in requires the prior written consent of HearthSong. PARTICIPANT shall not create, publish, distribute, or permit any written material, including, without limitation, promotion codes, coupons and discount offers that make reference to HearthSong. and/or its parent company, subsidiaries, affiliates and their respective web sites without first submitting such material to HearthSong. and receiving prior written consent thereto. When engaging in any direct promotional or advertising activities with consumers, PARTICIPANT shall (a) identify Participant's complete name and physical postal address, (b) clearly, conspicuously, and truthfully indicate the nature of the communication, (c) provide a reasonable method by which consumers can eliminate or limit ("opt-out") of such communications, (d) timely and in accordance with applicable laws, honor consumer requests to "opt-out" of such communications, (e) maintain reasonable records with regard to such "opt-out" requests, and (f) do not sell, rent, share, transfer, or disclose any personal information regarding consumers who "opt-out" except to process their orders and requests.
(b) PARTICIPANT may not bid on any keyword in pay per click search engines (PPCSES) that is a merchant brand term, (or derivative of a trademark, service mark, copyrighted terms and logos, or any other word or term that is likely to cause confusion regarding its affiliation with Merchant), as defined in Section 8. Some examples of these keywords include, but are not limited to: hearthsong.com, HearthSong, harthsong, or any variations or misspellings of the Marks, with any search engine. The forgoing list is for guideline purposes only; in other words, it is not a complete list of prohibited keywords which infringe or may infringe Merchant’s trademark. Merchant may, at its sole discretion, modify this list from time to time to include any other word or phrase. Failure to comply with this section may result in suspension or termination from Merchant’s affiliate program, as described in Section 5. Furthermore, HearthSong, hereby reserves all legal and equitable remedies it may have for Participant's violation of Sections 7(b) and 8 and for any misuse or infringement of the Marks by Participant. (h) If PARTICIPANT is an entity incorporated in New York State, an individual who maintains a permanent place of abode in New York State, or any corporation, association, partnership or other entity doing business or maintaining place of business in New York State, PARTICIPANT shall not engage in any solicitation activity in New York State targeted at potential New York State customers on behalf of HearthSong beyond the mere maintenance of websites links between PARTICIPANT'S and HearthSong websites. PARTICIPANT acknowledges and agrees it shall not engage in any such solicitation activity through any marketing channels including, but not limited to, distributing flyers, coupons, newsletters and other printed promotional materials, or electronic equivalents (e.g. paid search, email, lead generation, mobile marketing, telemarketing); and verbal solicitations (e.g. in-person referrals). Each such PARTICIPANT shall be required to submit to HearthSong, on an annual basis, a signed certification stating that such PARTICIPANT has not engaged in any prohibited solicitation activities in New York State, as described above, at any time during the previous year. Furthermore, if such PARTICIPANT is an organization (as opposed to a business), the PARTICIPANT organization shall include in its certification a statement that its website informs its members of the prohibition against engaging in the above described prohibited solicitation activities. Lastly, the required annual certification may be submitted to HearthSong in electronic or paper form and shall be signed by an authorized person and acknowledge that the information so provided is subject to an audit by the NYS Department of Taxation and Finance.
(c) PARTICPANT shall not, in any manner, misrepresent or embellish the relationship between PARTICIPANT and HearthSong or expressly 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 expressly or implying that HearthSong. supports, endorses, or contributes money to any charity or other cause).
(d) Software applications: PARTICIPANT in utilizing software applications (e.g. TopMoxie etc) will comply with all provisions of the LinkShare Affiliate Agreement, the LinkShare Affiliate Agreement Addendum, and the HearthSong. Affiliate Agreement. In addition PARTICIPANT will only receive credit for those transactions generated by users after clicking the software applications messaging window on the user's screen. Credit will not be given for transactions on hearthsong.com that are generated through internet locations where the software applications have been downloaded but the user has not clicked on the applications messaging window prior to purchase. PARTICIPANT will ensure that the applications it uses to promote hearthsong.com will not do so on pages that are displayed on users screens through Tracking URL's generated using the Linkshare system and/ or containing "lynksynergy.com". PARTICIPANT will ensure that the application does not overwrite, and/or redirect URLs generated through other tracking systems including , but not limited to, the LinkShare system and/ or containing "lynksynergy.com".
(a) HearthSong grants to PARTICIPANT a limited, non-exclusive, non-transferable, royalty-free, revocable license to (i) access the Web Site through the Links solely in accordance with the terms of this Agreement and (ii) solely in connection with such Links, to use HearthSong's and its parent company's, subsidiaries' and affiliated companies' logos, trade name, trademarks, service marks and similar identifying material (collectively the "Marks"), for the sole purpose of selling Products on your Web Site for hearthsong.com (but only in the form(s) as they appear on the Web Site). You may not alter, modify, amend, or change the Marks in any way. You are only entitled to use the Marks to the extent that this Agreement provides and only while this Agreement remains in full force and effect The use of any such Marks requires the prior written approval of HearthSong in all instances.
(b) PARTICIPANT shall not make any specific use of any Marks for purposes other than selling HearthSong's products on PARTICIPANT'S web site for HearthSong. No use of the Marks can be made without first submitting a sample of such proposed use to HearthSong, and obtaining the prior written consent of HearthSong. PARTICIPANT agrees not to use the Marks in any manner that is disparaging or otherwise portrays HearthSong in a negative light. HearthSong reserves all of its rights in the Marks and all of its other proprietary rights. No right, property, license or interest in any Marks is intended to be given to or acquired by PARTICIPANT by the execution or the performance of this Agreement. HearthSong may revoke this license at any time, by giving you written notice. PARTICIPANT may not alter, modify, or change the Marks in any way. All goodwill arising from the use of the Marks shall inure solely to the benefit of HearthSong and its parent, subsidiary or affiliated companies, as applicable.
(c) All intellectual and proprietary property and information, supplied or developed by HearthSong shall be and remain the sole and exclusive property of HearthSong. Upon termination of this Agreement, PARTICIPANT shall immediately cease using and return to HearthSong any and all such property and information it receives from HearthSong and, without limiting the foregoing, immediately cease use of HearthSong's Marks. Participant agrees not to contest or challenge the Marks or to use any confusingly similar marks.
(d) PARTICIPANT grants to HearthSong a non-exclusive, non-transferable, royalty-free license to access the PARTICIPANT web site through the Links; and (ii) use PARTICIPANT'S trade name, titles, logos, trademarks, service marks, products and similar identifying material relating to PARTICIPANT (the "PARTICIPANT'S Marks"), to advertise, market, promote and publicize in any manner this Agreement, the transactions contemplated hereunder or HearthSong's rights hereunder; provided, however, that HearthSong. shall not be required to advertise, market, promote or publicize, in any manner, this Agreement, the transactions contemplated hereunder, or PARTICIPANT'S Marks.
Pursuant to this Agreement, the Parties may disclose to one another certain information ("Information") which is considered by the disclosing party to be proprietary or confidential information, including, without limitation, the term of this Agreement, business, marketing and financial information, customer and vendor lists, and pricing and sales information. All such Information shall remain the sole property of the disclosing party, and its confidentiality shall be maintained and protected by the receiving party with the same degree of care as the receiving party uses for its own confidential and proprietary Information and the receiving party shall not disclose such Information to any third party without the prior written consent of the disclosing party. The restrictions of the use or disclosure of any Information shall not apply to any information: (i) after it has become generally available to the public without breach of this agreement by the receiving party; (ii) is independently developed by receiving party; (iii) is rightfully in the receiving party's possession prior to disclosure to it by the disclosing party; (iv) is rightfully received by receiving party from a third party without duty of confidentiality; or (v) is disclosed under operation of law or pursuant to legal or regulatory process.
NEITHER HearthSong NOR ITS PARENT COMPANY, SUBSIDIARIES, OR ITS AFFILIATED COMPANIES SHALL HAVE ANY LIABILITY HEREUNDER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT OR BUSINESS OPPORTUNITIES, WHETHER OR NOT hearthsong.com KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGE MIGHT BE INCURRED. FURTHERMORE, HearthSong'S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREUNDER WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF RECOVERY SHALL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO PARTICIPANT UNDER THIS AGREEMENT.
PARTICIPANT agrees to indemnify, defend and hold harmless HearthSong its parent company, subsidiaries, affiliated companies, successors and assigns and their respective officers, directors, shareholders and employees, from and against any and all losses, liabilities, damages, actions, claims, expenses and costs including, without limitation, reasonable attorneys' fees, which result or arise from or are based on (i) the negligence of PARTICIPANT, its agents, servants and/or employees, (ii) PARTICIPANT'S breach of this Agreement or any of the terms hereunder, (iii) any breach of a representation or warranty, or breach of a covenant or agreement made by PARTICIPANT herein, or in the Enrollment Application, (iv) any claim that HearthSong's use of PARTICIPANT'S Marks infringe on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, or (v) any claim related, in any way, to PARTICIPANT'S web site, including, without limitation, content therein not contributed directly by HearthSong, as well as, any and all promotional and advertising activities conducted by, or on the behalf of, PARTICIPANT.
12. Independent Parties:
Nothing contained herein shall imply any partnership, joint venture or agency relationship between the Parties and neither Party shall have the power to obligate or bind the other in any manner whatsoever, except to the extent herein specifically provided.
13. Binding Effect; Benefit:
This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any person or entity other than the Parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
If any provision of this Agreement shall be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement shall not be affected and shall remain in full force and effect.
Any notices required or permitted under this Agreement shall be sent electronically to you at your web site or the email address as provided in the LinkShare Network and to HearthSong at "email@example.com" and shall be deemed duly made and received when sent.
16. Force Majeure:
Except as otherwise expressly provided in this Agreement, HearthSong shall not be liable for any breach of this Agreement or for any delay or failure of performance resulting from any cause beyond such Party's reasonable control, including without limitation, the weather, strikes or labor disputes, war, terrorist acts, riots or civil disturbances, government regulations, acts of civil or military authorities, or acts of God.
17. Entire Agreement:
This Agreement constitutes (a) the binding agreement between the Parties; (b) represents the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements; and (c) may not be modified or amended except in a writing signed by the Parties. Notwithstanding anything to the contrary contained herein, HearthSong may modify and change any of the terms and conditions of this Agreement, at any time in its sole discretion. We will notify You of any such modification or change as provided for in Section 2 (a) hereof. Modifications and changes may include, without limitation, changes in the scope of available commission fees and payment procedures. If any modification or change is unacceptable to PARTICIPANT, PARTICIPANT'S only recourse is to terminate this Agreement. Your continued participation in the Program after the notice is posted or sent pursuant to Section 2(a) hereof, will constitute Your legally binding acceptance of the modification or change.
18. Governing Law:
This Agreement shall be governed by, and construed in accordance with the laws of the Commonwealth of Virginia without regard to conflicts of law principles thereof.
19. Arbitration; Venue;
Each Party hereby agrees to submit to binding arbitration in Charlottesville, Virginia, all disputes or controversies arising out of or in conjunction with this Agreement in accordance with the commercial arbitration rules of the American Arbitration Association (AAA) then in effect and judgment upon the award shall be final and unappealable and may be entered in any court having jurisdiction thereof. If the AAA does not have an office in Charlottesville, Virginia, then the arbitration shall be held in an office of the AAA in the Commonwealth of Virginia. Nothing contained herein shall, however, be construed to limit or preclude HearthSong from bringing any action in any court of competent jurisdiction for injunctive or other provisional relief as HearthSong. may deem to be necessary or appropriate against conduct or threatened conduct by PARTICIPANT. Venue for purposes of any action brought in connection with or arising out of this Agreement shall be conclusively presumed to be in the Commonwealth of Virginia and the Parties hereby irrevocably consent to jurisdiction in said courts.
20. INDEPENDENT INVESTIGATION:
PARTICIPANT ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND AGREES TO ALL OF ITS TERMS AND CONDITIONS. IT UNDERSTANDS THAT HearthSong MAY AT ANY TIME, DIRECTLY OR INDIRECTLY, SOLICIT CUSTOMER REFERRALS AND ENTER INTO SIMILAR AGREEMENTS ON TERMS THAT MAY BE THE SAME, SIMILAR OR DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR ENTER INTO AN AGREEMENTWITH COMPETITORS OF PARTICIPANT, OR MAY OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH PARTICIPANT'S WEB SITE. PARTICIPANT HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE TRANSACTIONS CONTEMPLATED HEREUNDER AND IT IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
21. NO GUARANTEE:
HearthSong MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH REFERENCE TO THE TRANSACTIONS AND SERVICES CONTEMPLATED HEREUNDER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF PERFORMANCE, DEALING, OR TRADE USAGE. IN ADDITION, HearthSong MAKES NO REPRESENTATION THAT THE OPERATION OF HearthSong's WEB SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND HearthSong. WILL NOT BE LIABLE FOR ANY CONSEQUENCES WHATSOEVER OF ANY INTERRUPTIONS OR ERRORS. FURTHERMORE, HearthSong MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE AMOUNT OF COMMISSIONS TO BE PAID TO PARTICIPANT HEREUNDER, OR AS TO ANY ASSET OR PROFITABILITY, IF ANY, OR OTHER BENEFIT PARTICIPANT MAY DERIVE HEREUNDER, IF ANY.
Sections 4, 5, 6, the last two sentences of Section 7, 8(c), 10, 11, 18, 19, 20 and 21 of this Agreement shall survive the termination or expiration of this Agreement.