AFFILIATE TERMS & CONDITIONS
PLEASE READ THE ENTIRE AGREEMENT.
YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND THE NIGHTINGALE
ORIGINALS, LLC. (DBA THENIGHTINGALEORIGINALS.COM)
BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT
YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND
THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
1. Overview
This Agreement contains the complete terms and conditions
that apply to you becoming an affiliate in Thenightingaleoriginals.com's
Affiliate Program. The purpose of this Agreement is to allow HTML linking
between your web site and the Thenightingaleoriginals.com web site. Please note
that throughout this Agreement, "we," "us," and
"our" refer to Thenightingaleoriginals.com, and "you,"
"your," and "yours" refer to the affiliate.
2. Affiliate Obligations
2.1. To begin the enrollment process, you will complete and
submit the online application at the Thenightingaleoriginals.com. The fact that
we auto-approve applications does not imply that we may not re-evaluate your
application at a later time. We may reject your application at our sole
discretion. We may cancel your application if we determine that your site is
unsuitable for our Program, including if it:
2.1.1. Promotes sexually explicit materials
2.1.2. Promotes violence
2.1.3. Promotes discrimination based on race, sex, religion, nationality,
disability, sexual orientation, or age
2.1.4. Promotes illegal activities
2.1.5. Incorporates any materials which infringe or assist others to infringe
on any copyright, trademark or other intellectual property rights or to violate
the law
2.1.6. Includes "The Nightingale Originals" or variations or
misspellings thereof in its domain name
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory,
obscene, harassing, or racially, ethnically or otherwise objectionable to us in
our sole discretion.
2.1.8. Contains software downloads that potentially enable diversions of
commission from other affiliates in our program.
2.1.9. You may not create or design your website or any other website that you
operate, explicitly or implied in a manner which resembles our website nor design
your website in a manner which leads customers to believe you are Thenightingaleoriginals.com
or any other affiliated business.
2.2. As a member of Thenightingaleoriginals.com's Affiliate
Program, you will have access to Affiliate Account Manager. Here you will be
able to review our Program’s details and previously-published affiliate
newsletters, download HTML code (that provides for links to web pages within
the Thenightingaleoriginals.com web site) and banner creatives, browse and get
tracking codes for our coupons and deals. In order for us to accurately keep
track of all guest visits from your site to ours, you must use the HTML code
that we provide for each banner, text link, or other affiliate link we provide
you with.
2.3. Thenightingaleoriginals.com reserves the right, at any
time, to review your placement and approve the use of Your Links and require
that you change the placement or use to comply with the guidelines provided to
you.
2.4. The maintenance and the updating of your site will be
your responsibility. We may monitor your site as we feel necessary to make sure
that it is up-to-date and to notify you of any changes that we feel should
enhance your performance.
2.5. It is entirely your responsibility to follow all
applicable intellectual property and other laws that pertain to your site. You
must have express permission to use any person's copyrighted material, whether
it be a writing, an image, or any other copyrightable work. We will not be
responsible (and you will be solely responsible) if you use another person's
copyrighted material or other intellectual property in violation of the law or
any third party rights.
3. Thenightingaleoriginals.com Rights and Obligations
3.1. We have the right to monitor your site at any time to
determine if you are following the terms and conditions of this Agreement. We
may notify you of any changes to your site that we feel should be made, or to
make sure that your links to our web site are appropriate and to notify further
you of any changes that we feel should be made. If you do not make the changes
to your site that we feel are necessary, we reserve the right to terminate your
participation in the Thenightingaleoriginals.com Affiliate Program.
3.2. Thenightingaleoriginals.com reserves the right to
terminate this Agreement and your participation in the Thenightingaleoriginals.com
Affiliate Program immediately and without notice to you should you commit fraud
in your use of the Thenightingaleoriginals.com Affiliate Program or should you
abuse this program in any way. If such fraud or abuse is detected, Thenightingaleoriginals.com
shall not be liable to you for any commissions for such fraudulent sales.
3.3. This Agreement will begin upon our acceptance of your
Affiliate application, and will continue unless terminated hereunder.
4. Termination
Either you or we may end this Agreement AT ANY TIME, with or
without cause, and notice to the other party. In addition, this Agreement will
terminate immediately upon any breach of this Agreement by you.
5. Modification
We may modify any of the terms and conditions in this
Agreement at any time at our sole discretion. In such event, you will be
notified by email. Modifications may include, but are not limited to, changes
in the payment procedures and Thenightingaleoriginals.com's Affiliate Program
rules. If any modification is unacceptable to you, your only option is to end
this Agreement. Your continued participation in Thenightingaleoriginals.com's
Affiliate Program following the posting of the change notice or new Agreement
on our site will indicate your agreement to the changes.
6. Payment
Theningtingaleoriginals.com shall issue payments on a
monthly basis, provided that the account balance has reached or exceeded a
minimum threshold of USD 100.00 (one hundred dollars). The payment method will
be selected by you at the time of registration.
7. Access to Affiliate Account Interface
You will create a password so that you may enter Theningtingaleoriginals’
secure affiliate account interface. From there you will be able to receive your
reports that will describe our calculation of the commissions due to you.
8. Promotion Restrictions
8.1. You are free to promote your own web sites, but
naturally any promotion that mentions Thenightingaleoriginals.com could be
perceived by the public or the press as a joint effort. You should know that
certain forms of advertising are always prohibited by Thenightingaleoriginals.com.
For example, advertising commonly referred to as "spamming" is
unacceptable to us and could cause damage to our name. Other generally
prohibited forms of advertising include the use of unsolicited commercial email
(UCE), postings to non-commercial newsgroups and cross-posting to multiple
newsgroups at once. In addition, you may not advertise in any way that
effectively conceals or misrepresents your identity, your domain name, or your
return email address. You may use mailings to customers to promote Thenightingaleoriginals.com
so long as the recipient is already a customer or subscriber of your services
or web site, and recipients have the option to remove themselves from future
mailings. Also, you may post to newsgroups to promote Thenightingaleoriginals.com
so long as the news group specifically welcomes commercial messages. At all
times, you must clearly represent yourself and your web sites as independent
from Thenightingaleoriginals.com. If it comes to our attention that you are
spamming, we will consider that cause for immediate termination of this
Agreement and your participation in the Thenightingaleoriginals.com Affiliate
Program. Any pending balances owed to you will not be paid if your account is
terminated due to such unacceptable advertising or solicitation.
8.2. Affiliates that among other keywords or exclusively bid
in their Pay-Per-Click campaigns on keywords such as Thenightingaleoriginals.com,
The Nightingale Originals, www.thenightingaleoriginals.com, and/or any
misspellings or similar alterations of these – be it separately or in
combination with other keywords – and do not direct the traffic from such
campaigns to their own website prior to re-directing it to ours, will be
considered trademark violators, and will be banned from Merchant’s Affiliate
Program. We will do everything possible to contact the affiliate prior to the
ban. However, we reserve the right to expel any trademark violator from our
affiliate program without prior notice, and on the first occurrence of such PPC
bidding behavior.
8.3. Affiliates are not prohibited from keying in prospect’s
information into the lead form as long as the prospects’ information is real
and true, and these are valid leads (i.e. sincerely interested in The Nightingale
Originals products).
8.4. Affiliate shall not transmit any so-called
“interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance
Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or
“deceptive pop-ups and/or pop-unders” to consumers from the time the consumer
clicks on a qualifying link until such time as the consumer has fully exited The
Nightingale Originals’ site (i.e., no page from our site or any Thenightingaleoriginals.com’s
content or branding is visible on the end-user’s screen). As used herein a.
“Parasiteware™” and “Parasitic Marketing” shall mean an application that (a)
through accidental or direct intent causes the overwriting of affiliate and non
affiliate commission tracking cookies through any other means than a customer
initiated click on a qualifying link on a web page or email; (b) intercepts
searches to redirect traffic through an installed software, thereby causing,
pop ups, commission tracking cookies to be put in place or other commission
tracking cookies to be overwritten where a user would under normal
circumstances have arrived at the same destination through the results given by
the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture,
AltaVista, Hotbot and similar search or directory engines); (c) set commission
tracking cookies through loading of The Nightingale Original’s site in IFrames,
hidden links and automatic pop ups that open Thenightingaleoriginals.com’s
site; (d) targets text on web sites, other than those web sites 100% owned by
the application owner, for the purpose of contextual marketing; (e) removes,
replaces or blocks the visibility of Affiliate banners with any other banners,
other than those that are on web sites 100% owned by the owner of the
application.
9. Grant of Licenses
9.1. We grant to you a non-exclusive, non-transferable,
revocable right to (i) access our site through HTML links solely in accordance
with the terms of this Agreement and (ii) solely in connection with such links,
to use our logos, trade names, trademarks, and similar identifying material
(collectively, the "Licensed Materials") that we provide to you or
authorize for such purpose. You are only entitled to use the Licensed Materials
to the extent that you are a member in good standing of Thenightingaleoriginals.com's
Affiliate Program. You agree that all uses of the Licensed Materials will be on
behalf of Thenightingaleoriginals.com and the good will associated therewith
will inure to the sole benefit of Thenightingaleoriginals.com.
9.2. Each party agrees not to use the other's proprietary
materials in any manner that is disparaging, misleading, obscene or that
otherwise portrays the party in a negative light. Each party reserves all of
its respective rights in the proprietary materials covered by this license.
Other than the license granted in this Agreement, each party retains all right,
title, and interest to its respective rights and no right, title, or interest
is transferred to the other.
10. Disclaimer
THENIGHTINGALEORIGINALS.COM MAKES NO EXPRESS OR IMPLIED
REPRESENTATIONS OR WARRANTIES REGARDING THENIGHTINGALEORIGINALS.COM SERVICE AND
WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES
OF THENIGHTINGALEORIGINALS.COM ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. 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.
11. Representations and Warranties
You represent and warrant that:
11.1. This Agreement has been duly and validly executed and
delivered by you and constitutes your legal, valid, and binding obligation,
enforceable against you in accordance with its terms;
11.2. You have the full right, power, and authority to enter
into and be bound by the terms and conditions of this Agreement and to perform
your obligations under this Agreement, without the approval or consent of any
other party;
11.3. You have sufficient right, title, and interest in and
to the rights granted to us in this Agreement.
12. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY
OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR
GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL THENIGHTINGALEORIGINALS.COM'S
CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR
EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS
AGREEMENT.
13. Indemnification
You hereby agree to indemnify and hold harmless Thenightingaleoriginals.com,
and its subsidiaries and affiliates, and their directors, officers, employees,
agents, shareholders, partners, members, and other owners, against any and all
claims, actions, demands, liabilities, losses, damages, judgments, settlements,
costs, and expenses (including reasonable attorneys' fees) (any or all of the
foregoing hereinafter referred to as "Losses") insofar as such Losses
(or actions in respect thereof) arise out of or are based on (i) any claim that
our use of the affiliate trademarks infringes on any trademark, trade name,
service mark, copyright, license, intellectual property, or other proprietary
right of any third party, (ii) any misrepresentation of a representation or
warranty or breach of a covenant and agreement made by you herein, or (iii) any
claim related to your site, including, without limitation, content therein not
attributable to us.
14. Confidentiality
All confidential information, including, but not limited to,
any business, technical, financial, and customer information, disclosed by one
party to the other during negotiation or the effective term of this Agreement
which is marked "Confidential," will remain the sole property of the
disclosing party, and each party will keep in confidence and not use or
disclose such proprietary information of the other party without express
written permission of the disclosing party.
15. Miscellaneous
15.1. You agree that you are an independent contractor, and
nothing in this Agreement will create any partnership, joint venture, agency,
franchise, sales representative, or employment relationship between you and Thenightingaleoriginals.com.
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 any other
of Your Site or otherwise, that reasonably would contradict anything in this
Section.
15.2. Neither party may assign its rights or obligations
under this Agreement to any party, except to a party who obtains all or
substantially all of the business or assets of a third party.
15.3. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California without regard to the
conflicts of laws and principles thereof.
15.4. You may not amend or waive any provision of this
Agreement unless in writing and signed by both parties.
15.5. This Agreement represents the entire agreement between
us and you, and shall supersede all prior agreements and communications of the
parties, oral or written.
15.6. The headings and titles contained in this Agreement
are included for convenience only, and shall not limit or otherwise affect the
terms of this Agreement.
15.7. If any provision of this Agreement is held to be
invalid or unenforceable, that provision shall be eliminated or limited to the
minimum extent necessary such that the intent of the parties is effectuated,
and the remainder of this agreement shall have full force and effect.