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Affiliates
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The terms of this Agreement with AdoptionEd, LLC ("AdoptionED") who is the legal owner of TapestryBooks.com are shown below:
1. Definitions
Site: www.TapestryBooks.com.
Affiliate: A person or entity that has received an email confirmation from AdoptionED, as determined by AdoptionED at its sole discretion, that its website/agency/organization is included in the Program.
Program: Tapestry Affiliate Linking Program. The linking program is a service that Tapestry facilitates, to provide an adoption specific bookstore on the internet that can be used by affiliates to extend the functionality of their their website and provide additional benfit to their clients.
Trademarks: Tapestry Books, all names containing Tapestry Books and all other trademarks, service marks and logos displayed on the Site.
2. Referral Fees
AdoptionED will pay a fee up to 3.0% on sales to an Affiliate for finalized purchases.
Payment terms are subject to sections 3, 4 and 5 below, and under no circumstances will AdoptionED pay in any calendar month fees that result in the aggregate payments by AdoptionED to all of its Affiliates in connection with the Program to exceed $2000 during such month (in which case AdoptionED shall allocate all Referral Fees pro-rata among all Affiliates on the basis of the fees to which each Affiliate is entitled during the calendar quarter including such month).
3. Tracking; Payment
AdoptionED tracks, by the 10th of every month, how many finalized purchases were referred from the Affiliate's website (excluding visitors who disable the operation of AdoptionED' tracking device) and calculates the Referral Fees to which the Affiliate is entitled. Payment is sent via checks, after the end of each calendar quarter, provided that the balance is at a minimum of $75. If the balance does not meet the minimum $75 requirement, it will be carried over to the next quarter, without bearing any interest or fines. An Affiliate that has breached any of the terms of this Agreement, will not receive any payment whatsoever.
It is the Affiliate's sole responsibility to comply with any tax laws that apply to the Referral Fees, and Affiliate consents, to the extent required by any applicable law and regulations, that AdoptionED may provide information regarding Affiliate's fees to any government agency.
4. Additional Terms of Participation in the Program
Affiliate and its website may not be engaged, directly or indirectly, in conduct that AdoptionED, at its sole discretion, deems to be illegal, improper, unfair or otherwise adverse to the operation or reputation of the Site or detrimental to other users of the Site, including but not limited to, directly or indirectly (a) Operating a website that contains or promotes content that is libelous, defamatory, obscene, abusive, violent, bigoted, hate-oriented, illegal, indecent, deceptive, cracking, hacking or warez, or link to a website that does so; (b) Engaging in indiscriminate or unsolicited commercial advertising emails; (c) Placing links to the Site in newsgroups, message boards, unsolicited email, spam, banner networks, counters, chat rooms, guest books, IRC channels or through similar Internet resources; (d) Causing or enabling any clicks or traffic to the Site, to be made that are not in good faith, including among others by means of any device, program, robot, Iframes, hidden frames and redirects, and any other "bogus" traffic whether made by a program, a human or any other mean (in each case without derogating from other remedies AdoptionED may have in law, equity or otherwise); (e) Offering any person or entity any consideration or incentive (such as a "reward program", discounts, rebates or any other benefits) for using links on Affiliate's website to access the Site and any other activity that AdoptionED deems at its sole discretion to be of similar nature, or that allows third parties to place links to the Site; or (f) Diluting, blurring or tarnishing the value of Trademarks.
Furthermore, Affiliate will not sell, redistribute, sublicense or transfer, nor use in a manner intended to send sales to any website other than the Site, any data, images, text, or other information obtained by Affiliate from AdoptionED or the Site in connection with this Agreement.
5. Links; Trademarks; Data
Subject to the terms of this Agreement, and as long as this Agreement is not terminated, Affiliate may display a link to the Site only in the form provided in enhance site page, as may be updated by AdoptionED from time to time, on Affiliate's website that has been confirmed by AdoptionED as included in the Program. AdoptionED will promptly notify Affiliate in writing of any changes of the form or substance of the Link or Site so that Affiliate can comply with the requirements of this Section. Without derogating from the generality of the above, it is explicitly agreed that Affiliate will not utilize any redirecting or framing in connection with such link. AdoptionED grants to Affiliate, a nonexclusive, non-transferable, non-sublicensable license to display on such Affiliate's website the AdoptionED trademarks included in the form provided in enhance site page for the sole purpose of providing a link from such Affiliate's website to the Site's homepage. No framing of any webpage of the Site is permitted. The Trademarks are registered and unregistered trademarks of AdoptionED or others. Except as explicitly permitted in this Section 5 above, nothing in this Agreement or on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark. Affiliate agrees to follow AdoptionED Trademark Guidelines, as updated by AdoptionED from time to time.
Each party will retain sole ownership of data it collects on its website from visitors or on their use of such website. Affiliate further agrees that AdoptionED will access information relating to visitors referred from Affiliate's website and may use such information solely to fulfill orders placed by those visitors and for no other purposes.
6. Confidential Information
All information obtained in the manner described in Section 5 and all information, documents and other materials made available to AdoptionED or its employees by Affiliate in connection with this Agreement, including, but not limited to, any and all lists of Affiliate's clients and any information relating to Affiliate's business or clients will be considered Confidential Information Confidential Information will remain the exclusive property of Affiliate during and after the term of this Agreement. AdoptionED agrees to keep in strict secrecy and confidence all Confidential Information; not to disclose the Confidential Information to any third party; and will use the Confidential Information solely for the purposes described above. AdoptionED will protect the Confidential Information against disclosure using the same degree of care, but no less than a reasonable degree of care, as AdoptionED would use to protect its own confidential information of a similar nature. AdoptionED agrees to use all reasonable steps to ensure that the Affiliate's Confidential Information is not disclosed by AdoptionED's employees or agents in violation of this Section. AdoptionED will maintain all reasonable and appropriate administrative, physical, procedural, and technical safeguards to protect against all risks to Confidential Information, including without limitation, unauthorized access, loss or copying, whether physical or electronic, by AdoptionED's employees or other third-parties to databases, computer systems and networks, and other electronic storage devices and records and non-electronic and paper records containing Confidential Information.
Upon termination or expiration of this Agreement or upon request, AdoptionED will return all Confidential Information to Affiliate and certify in writing that it has returned all such information to Affiliate and has not kept copies thereof in any medium.
7. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY, ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE FOR LOST PROFITS OR DATA, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE, ADOPTIONED'S SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE), AND INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY FAILURE OR MALFUNCTION OF ANY SOFTWARE, HARDWARE, COMMUNICATION TECHNOLOGY OR OTHER SYSTEM
EXCEPT FOR BREACH OF SECTION 6 OR INDEMNITY OBLIGATIONS UNDER SECTION 8, THE PARTIES’ LIABILITY, AND THE LIABILITY OF THEIR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF REFERRAL FEES PAID BY ADOPTIONED TO AFFILIATE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO AFFILIATE.
8. NO WARRANTIES & INDEMNIFICATION
THE FOLLOWING DISCLAIMERS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PROGRAM, THE SITE, LINKS IN THE SITE, OR THE SITE BEING ACCESSIBLE OR FREE OF ERRORS.
Affiliate agrees to indemnify, defend and hold harmless AdoptionED and its subsidiaries, directors, officers, employees and suppliers from and against any and all third party liability, claims, costs, expenses, injuries and losses, including reasonable attorneys' fees and costs, arising directly or indirectly in connection with Affiliate's operations or website. AdoptionED will (1) upon learning of any such claim or lawsuit, promptly notify Affiliate in time to allow Affiliate to undertake the defense thereof; (2) provide Affiliate with the right to take exclusive charge of the defense or settlement of any claim or lawsuit at its sole cost and expense; (3) fully cooperate with Affiliate in the defense or settlement of any claim at Affiliates expense; and (4) not agree to any settlement without the prior written approval of Affiliate.
AdoptionED agrees to indemnify, defend and hold harmless Affiliate and its subsidiaries, directors, officers, employees and suppliers from and against any and all third party liability, claims, costs, expenses, injuries and losses, including reasonable attorneys' fees and costs, arising directly or indirectly in connection with AdoptionED's operations or website or out of any disputes between AdoptionED and any other party relating to this Agreement, the Site or to services provided by AdoptionED. Affiliate will (1) upon learning of any such claim or lawsuit, promptly notify AdoptionED in time to allow AdoptionED to undertake the defense thereof; (2) provide AdoptionED the right, to take charge of the defense or settlement of any claim or lawsuit at its sole cost and expense; (3) fully cooperate with AdoptionED in the defense or settlement of any claim at AdoptionED's expense; and (4) not agree to any settlement without the prior written approval of AdoptionED.
Miscellaneous
AdoptionED and Affiliate are independent contractors, and nothing in this Agreement creates any partnership, joint venture or agency relationship between them, grants to Affiliate authority to make any representation on AdoptionED's behalf or make public any information regarding AdoptionED, or prohibits AdoptionED from operating websites that are similar to or compete with Affiliate's website.
This Agreement comprises the entire agreement between Affiliate and AdoptionED, supersedes all prior oral and written agreements pertaining to this Agreement's subject matter, and applies in addition to any other term or condition of the Site (such as AdoptionED Privacy Policy), unless expressly provided otherwise in this Agreement.
AdoptionED or the Affiliate may terminate this Agreement at any time, with or without cause, by giving the other party a seven day prior written notice by email, or by posting a notice on the Site's affiliate program URL (http://www.tapestrybooks.asp/affiliates.asp) by AdoptionED if AdoptionED terminates this Agreement with all of its Affiliates, except if Affiliate violated any of the terms of this Agreement, in which case termination will be effective immediately. No fees paid by AdoptionED to Affiliate will be refunded in the event of termination or expiration of this Agreement.
Upon termination of this Agreement for any reason, Affiliate will immediately cease use of, and remove from Affiliate's website, all Trademarks and all links to the Site, sections 6, 7 and 8 of this Agreement shall survive such termination and the enforceability of the terms and conditions of this Agreement as they related to acts and omissions during the period before such termination shall survive such termination.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be construed, as nearly as possible, to reflect the original provision and the other provisions remain in full force and effect.
A party's failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
The section titles in this Agreement are used solely for convenience and may not be used in the interpretation of this Agreement.
AdoptionED may assign this Agreement to any party at any time.
LAST UPDATED October 17, 2008
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