Participation In The Program
Complete the WebbyShop Affiliate registration form and then read and agree to this Agreement. We will evaluate your application and notify you regarding the status of your website (“Site”) in the WebbyShop Affiliate Program (“Program”). We may reject your application if we determine, at our sole discretion, that your Site is unsuitable for the Program.
Unsuitable sites include, but are not limited to, those that:
- Infringe trademark rights or otherwise violate the rights of any third party.
- Contain sexually explicit materials.
- Contain hate/violent/offensive content.
- Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Promote illegal activities or otherwise violate any applicable laws.
- Violate any intellectual property rights.
- Do not clearly state an online privacy policy to its visitors.
- Otherwise are considered offensive or inappropriate at WebbyShop’s sole discretion.
You should note that if you are accepted to participate in the Program and your Site is thereafter determined, at our sole discretion, to be unsuitable based on the criteria above, we may terminate this Agreement.
Master Agreement
This Master Agreement (”Agreement”) is made between WebbyShop (”WebbyShop”) and you (”Affiliate”).
Background
Affiliate and WebbyShop each desire to establish the general terms and conditions which shall govern advertising and commission arrangements between Affiliate and WebbyShop.
Terms And Conditions
In consideration of the promises set forth below, we agree as follows:
1. Offers and Engagements.
1.1. From time to time, WebbyShop may post offers to pay participants a specified commission in return for certain advertising services leading to a Qualifying Link (defined below). 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. At any time prior to Affiliate providing a Qualifying Link, WebbyShop 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 WebbyShop for an Offer or an Engagement. Affiliate agrees to promptly implement any request from WebbyShop to remove, alter or modify any graphic or banner ad submitted by WebbyShop that is being used by Affiliate as part of an Engagement.
2. Affiliate’s Responsibilities.
2.1. Affiliate will link its site to areas within WebbyShop (“WebbyShop”) using special URLs specified in the Engagement (the “Required URLs”). Affiliate may post as many links to the Required URLs and the rest of WebbyShop as it likes on Affiliate’s site. The position, prominence and nature of links on the Affiliate’s site shall comply with any requirements specified in the Engagement and this Agreement, but otherwise will be in the discretion of Affiliate.
2.2. Affiliate agrees not to make any representations, warranties or other statements concerning WebbyShop, WebbyShop’s site, any of WebbyShop’s products or services, or WebbyShop’s site policies, except as expressly authorized by the Engagement.
2.3. Affiliate is responsible for notifying WebbyShop of any malfunctioning of the Required URLs or other problems with Affiliate’s participation in the Engagement. WebbyShop will respond within reasonable time to all concerns upon written notification by Affiliate.
3. Commissions.
3.1. WebbyShop agrees to pay Affiliate the commission specified in the Engagement if WebbyShop sells to a visitor to WebbyShop (a “Customer”) a product or service that is the subject of the Engagement and if that Customer has accessed WebbyShop and purchased the product or service via a Qualifying Link.
3.2. A “Qualifying Link” is a link from Affiliate’s site to WebbyShop using one of the Required URLs or any other URL provided by WebbyShop if it is the last link to WebbyShop that the Customer uses during a Session where a sale of a product or a service to Customer occurs. A “Session” is either (a) a period of 24 hours from the time of a Customer’s initial contact with WebbyShop via a link from the Affiliate’s site or the Engagement expires or is terminated or (b) if a Customer links to WebbyShop from more than one affiliate site within a 24-hour period, then the period of time beginning from a Customer’s initial contact with WebbyShop via a link from the Affiliate’s site and terminating when the Customer either returns to WebbyShop via a link from a site other than Affiliate’s site or the Engagement expires or is terminated.
3.3. WebbyShop shall have the sole right and responsibility for processing all orders made by Customers. Affiliate acknowledges that all agreements relating to sales to Customers shall be between WebbyShop and the Customer.
3.4. All determinations of Qualifying Links and whether a commission is payable will be made by WebbyShop and will be final and binding on both WebbyShop and Affiliate. Prices for the products will be set solely by WebbyShop in its 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. WebbyShop grants Affiliate a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology provided by WebbyShop solely for the purpose of creating links from Affiliate’s site to WebbyShop during Engagements. Except as expressly set forth in this Agreement or permitted by applicable law, Affiliate may not copy, distribute, modify, reverse engineer, or create derivative works from the same. Any good will resulting from Affiliate’s use of WebbyShop’s name, logos, trademarks, service marks and trade dress will inure solely to the benefit of WebbyShop and will not create any right, title or interest for Affiliate. Affiliate 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. Affiliate may use only the logos, trademarks, service marks, trade dress, banners, text links, coupon codes, etc. (“Creative”) that is provided by WebbyShop. Affiliate shall not use the Creative in connection with any activity that disparages WebbyShop, or its products or services, or that damages the reputation for quality inherent in the same. The use of Creative that is posted on other sites, found in other emails or other sources, manipulated in any way or derived from any means is not permitted. If Affiliate does not fully comply with this provision WebbyShop may withhold commissions, immediately terminate this Agreement and/or permanently remove Affiliate from the program.
4.4. Affiliate’s use of WebbyShop’s name, logos, trademarks, service marks, and trade dress pursuant to Section 4.2 and 4.3 must be in a manner that is clearly less prominent than that of Affiliate’s name, logos, trademarks, service marks, trade dress, products and/or site name. Affiliate is prohibited from creating an impression that there is an association or affiliation between WebbyShop and Affiliate beyond the arrangement outlined in this Agreement.
4.5. Affiliate shall always maintain the quality of its services at a level satisfactory to WebbyShop. WebbyShop shall at times have the right to review Affiliate’s activities related to this Agreement.
4.6. Affiliate shall immediately cease using WebbyShop’s name, logos, trademarks, service marks, trade dress, proprietary technology and any Creative upon the termination or expiration of this Agreement.
4.7. Affiliate grants WebbyShop a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Affiliate solely for co-branding purposes or as a return link from WebbyShop’s site to Affiliate’s site. WebbyShop will remove such graphic or banner ad upon Affiliate’s request.
5. Confidentiality.
5.1 Except as otherwise provided in this Agreement or with our prior written consent, Affiliate agrees that all information including, without limitation, the terms of this Agreement, WebbyShop’s business and financial information, its customer lists, and its pricing and sales information, shall remain strictly confidential and shall not be utilized, directly or indirectly, by Affiliate 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 Affiliate. Notwithstanding the foregoing, Affiliate may deliver a copy of any such information (a) pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process.
5.2 WebbyShop shall own and retain all right, title and interest in all names, addresses and other identifying information of customers visiting WebbyShop’s sites (”Customer Data”) which is collected by WebbyShop, including without limitation, customers who access WebbyShop’s sites through Qualifying Links, and Affiliate shall have no right to use any such Customer Data.
6. Privacy.
6.1. Affiliate shall not send out any emails, directly or indirectly, that advertise or promote WebbyShop, it products, services, web sites or Offers without WebbyShop’s prior express written consent.
6.2. Affiliate agrees not to send any email or other form of electronic message or advertisement containing WebbyShop’s name, product or service, web site address, metatag or any other type of identifier to any recipient unless the recipient has directly consented to receive such communication from Affiliate or Affiliate has a pre-existing business relationship with the recipient. In addition, Affiliate agrees to provide a recipient of such communication with the ability to “opt out” of further communications from Affiliate either by calling a toll free number or by sending an “unsubscribe” email to Affiliate.
7. Termination.
7.1. Either party may terminate any Engagement at any time. Termination of an Engagement shall not terminate this Agreement or any other Engagement.
7.2. Either party may terminate this Agreement at any time, for any reason, provided that they provide at least five day’s prior written notice of such termination to the other party. In addition, WebbyShop shall be entitled to terminate this Agreement immediately if Affiliate materially breaches or violates any terms or conditions of this Agreement, or if WebbyShop determines, in its sole discretion, that there are technical or operational issues (e.g. interruptions caused by or shifts in online/Internet technology) that adversely affect compliance with this Agreement, or the orders/referrals were obtained fraudulently or through misrepresentation, in which case WebbyShop reserves the right to withhold payment of commissions pending an investigation of the suspected fraud or misrepresentation. Termination of this Agreement shall also terminate any outstanding Engagements. However, all rights to payment, causes of action and any provisions, which by their terms are intended to survive termination, shall survive termination of this Agreement.
7.3. This Agreement shall commence as of the date last executed below and shall terminate as per the terms of sections 4.3 and 7.2 above.
8. Representations.
8.1. Each party represents to the other that it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby.
8.2. Affiliate represents that: (a) the contents of its website do 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) contain defamatory or libelous material; (iv) contain lewd, pornographic or obscene material; (v) violate any laws regarding unfair competition, antidiscrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, or other similar harmful or deleterious programming routines; and (b) that Affiliate has and complies with a privacy policy consistent with federal and state laws and regulations, which is prominently displayed on its website.
8.3. 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 MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. Indemnification.
9.1. Affiliate agrees to indemnify, defend and hold harmless WebbyShop 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.
10. Limitation of Liability.
10.1. Except for Section 9.1 (“Indemnification”), 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.
11. General.
11.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
11.2. WebbyShop may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or and giving you notice of the modification through a subsequent written agreement between the parties. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, ITS ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. AFFILIATE’S CONTINUED COMPLIANCE WITH THIS AGREEMENT FOLLOWING WEBBYSHOP’S POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON ITS SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
11.3. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of Connecticut. Any disputes arising out of this Agreement shall be brought in the federal or state courts located in Fairfield County, Connecticut.
11.4. 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.
11.5. 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.
