YOUR PARTICIPATION IN THE JAMES ALLEN AFFILIATE PROGRAM
IS CONDITIONED UPON YOUR ACCEPTANCE OF ALL THE TERMS AND CONDITIONS CONTAINED IN
THIS AGREEMENT.
|
1. Introduction.
|
|
The James Allen Affiliate Program Agreement contains the terms and conditions of
the James Allen Affiliate Program. Defined terms in this Agreement include the following:
(a) "you" or "your" shall mean you, the applicant applying to participate in the
Affiliate Program, and upon our acceptance of your application, the Affiliate, (b)
"we" or "us" or "our" shall mean James Allen, (c) "our Web site" shall mean the
James Allen Web site currently located at www.JamesAllen.com, (d) "your Web site"
shall mean the World Wide Web site from which you will link to our Web site, (e)
"Affiliate" shall mean a party accepted as a member of the Affiliate Program, (f)
"User" shall mean a customer who links from your Web site to our Web site, (g) "Products"
shall mean any merchandise offered for sale by us on our Web site and does not include
items offered for sale by third parties on our Web site, (h) "Affiliate Site" shall
mean an Affiliate Web site that has been accepted as an Affiliate of James Allen
and (i) "Link" or "Links" shall mean banner advertisements, buttons, data feeds,
storefronts, widgets, search boxes, links or text links that link to the James Allen
home page or other specific pages of the James Allen Web site, containing the James
Allen logo.
2. Program Enrollment.
To begin the enrollment process in the James Allen Affiliate Program, you must complete
the James Allen Online Application and accept the terms and conditions of this Agreement.
Once you have accepted this Agreement by clicking the "ACCEPT" button at the bottom
of the Online Application, we will review your completed Online Application in good
faith and inform you within a timely manner of whether or not you have been accepted
as an Affiliate. We reserve the right to accept or reject Affiliates in our sole
discretion. We may reject your application if we determine, in our sole discretion,
that your Web site is inappropriate or objectionable. Web sites that are objectionable
or inappropriate include sites that: Are unavailable or under construction Are aesthetically
unpleasing Contain hate/violent/sexually explicit/offensive content Promote excessive
drinking and/or drug use. Promote discrimination based on race, sex, religion, nationality,
disability, sexual orientation, or age. Are libelous, disparaging, or defamatory
Promotes violence or illegal activities Use James Allen's variations or misspellings
in its domain names Incorporates materials that infringe upon copyright, trademark
or other intellectual property rights If we temporarily reject your application,
you may not participate in the Affiliate Program, but you may reapply to be an Affiliate
at any time. If we permanently reject your site, you may not reapply to the program.
If your Web site is accepted, you will be eligible to link James Allen Links to
your Web site. We reserve the right in our sole discretion to reject an Affiliate
application even after we have communicated acceptance to you or may remove an Affiliate
from the Affiliate Program at any time for any reason.
3. Linking Requirements.
a. When you become an Affiliate Site in our Affiliate Program, we will provide you
with Links that will allow Users to your Web site to be transported directly when
they click on the Link to Products on our Web site. As an Affiliate, you may display
these Links on your Web site subject to the terms and conditions contained herein.
All Links are subject to our approval and we will provide you with the information
that you need to enable you to make appropriate Links to our Web site from your
Web site. By accepting the terms of this Agreement, you agree that you shall cooperate
fully with James Allen to maintain such Link or Links.
You further agree that (a) such Link or Links shall be displayed prominently throughout
your Web site as you see fit and with our consent, (b) no Link or Links shall be
modified, expanded or reduced in any way without our consent and (c) no Link or
Links on your Web site shall in any way modify the look, feel and/or functionality
of our Web site. We reserve the right to monitor your Web site at any and at all
times to make certain that you are in compliance with the terms and conditions of
this Agreement. You shall be fully responsible for all content, links and activities
conducted on your Web site. We disclaim all liabilities related to such matters.
You agree to indemnify James Allen and hold us harmless (as well as our employees,
officers, agents, directors and affiliated entities) from all liability claims,
damages and expenses (including, without limitation, attorneys' fees) relating to
the development, operation, maintenance, activities, contents and links of your
Web site.
b. Use of forced or automated clicks and/or cookies. You agree that You shall not:
Place or use any Link of James Allen except with the intention of delivering valid
sales, leads, clicks or other specified compensable actions;
Inflate the number of applications, accounts, clicks or other specified compensable
actions or any impressions of the James Allen web site, by any method or using any
hidden frames, java pop ups, Web bot, robot, automatic redirecting of users, auto
spawning of browsers, or any other technique or means of generating automated click-throughs,
requiring visitors to click on James' Allen Link before entering any area of Your
Site(s), by placing or including Promotions or links on pages of Your Site that
automatically reload or go to another page without interaction from the user (for
example, client pull or server push technology, METATAG reload, or refresh command
on page html) or on any page that is not generally accessible to all Web users (for
example, pop-up windows and hidden frames);
Affiliates using any of the aforementioned techniques or methods to establish a
click, and/or place a cookie on a users computer will be terminated without notice
and forfeit all outstanding and future commissions.
4. Order Processing.
All orders, customer service and fulfillment of such orders will be handled by and
through James Allen. You may not take orders, perform customer service or deliver
Products on our behalf. We will process orders from any Users directed by you through
your Web site, but we reserve the right to reject any orders that do not comply
with any requirements that we may periodically impose. We will be solely responsible
for all aspects of Product order processing and fulfillment, including order entry,
payment processing, shipping, cancellations, returns and related customer service.
James Allen will be responsible for tracking the number of Products sold to Users
who are directed from your Web site to our Web site and will make available to you
reports, summarizing your sales activity through James Allen. The form, content
and frequency of the reports may vary from time to time in our sole discretion.
We are not responsible for ensuring that your Web site contains proper Links and/or
linking to the James Allen Web site to ensure that Accurate tracking, reporting
and sales accrual can occur. You are responsible for making certain that the Links
between your Web site and our Web site are formatted properly. We reserve the right
to change the prices of any or all of our Products at any time in our Sole discretion
without notice. We cannot ensure that if an order is placed that any Product will
be available to the User or that a stated price for a Product will be accurate.
We do not honor misquoted prices. All personal information regarding the User is
the sole and exclusive property of James Allen and shall not be provided to you
as is required pursuant to James Allen's privacy policy.
5. Referral Fees and Commissions.
We will pay you on all net sales based on the amount of net revenue achieved in
a given month. The Commission shall be equal to a percentage of the Net Sales of
Products purchased by a User utilizing the links between your Web site and our Web
site (the "Commission"). "Net Sales" shall mean the gross sale price of a Product,
excluding amounts collected by us for gift certificates, sales taxes, duties, shipping,
handling, fraud, charge-backs, exchanges, credit card processing fees, taxes and
similar charges. The current Commission fee schedule is as follows.
Commissions:
All Affiliates that sign up to the James Allen Affiliate program will receive a
7% Commission on all sales.
The maximum commissionable revenue per order is $10,000.
6. The Referral Fees and the Commission rates are subject to change
at any time in our sole discretion without notice. In order for you to generate
a Referral Fee or Commission, the User must follow a link from your Web site to
our site, and within 30 days purchase the product using either our automated ordering
system or by contacting one of our diamond and jewelry consultants, accept the delivery
of the Product at the shipping destination, remit full payment to us and not cancel
the order. You will not be eligible for a Referral Fee or Commission under the following
circumstances:
A party comes to James Allen through you and does not purchase anything and then
returns to James Allen via another Affiliate or partner at a later date and then
makes a purchase, the second Affiliate or partner will receive the credit for the
ultimate purchase.
A party comes to James Allen through your Web site and returns more than 30 days
later by entering our url directly, then you will not receive credit for that later
purchase.
The User has prevented cookies from being saved on his, her or its' hard drive.
The User does not provide our diamond and jewelry consultant with your Affiliate
tracking number for any reason.
If a User to our Web site cannot be tracked by our online ordering system for any
reason.
A party comes to James Allen through your Web site but purchases using a "reference
code" or "discount code" that discounts their purchase, unless the code is provided
to you directly from the James Allen Affiliate Manager.
7. Referral Fees and Commission Payments.
We will pay your Referral Fees and Commission payments on a monthly basis for merchandise
purchased by a User directed from your Web site provided all of the conditions in
Section 6 have been met. Referral Fees and Commission payments for items that have
been returned 90 days from purchase will be deducted in the month that the items
are returned. Payments will be made in US dollars, and are paid once a month, 45 days
after the end of the month of which they were earned. For example commissions earned
during the month of August will be paid out on October 15th. We will send you a check
for the Referral Fees and Commissions earned for
Products that we shipped during the applicable period less any returned items during
that applicable period less any taxes on such Commissions that we are required by
law to withhold, provided you have (a) not breached any terms or conditions of this
Agreement, (b) met the conditions set forth in Section 12 hereof and (c) you have
previously provided to us a valid mailing address to which the payment may be mailed.
James Allen will also hold payment if any affiliate payment report is a negative
number or any future payment reports are negative. We shall withhold such payment
until the next affiliate payment report is a positive number.
8. Policies and Pricing.
Users who purchase Products through the Affiliate Program will be deemed to be customers
of James Allen. Accordingly, all of our rules, policies, and operating procedures
concerning customer orders, customer service and sales will apply to those Users.
We may change our policies and operating procedures at any time in our sole discretion
without notice. Products, availability of our Products and our pricing of such Products
may vary from time to time. We will use commercially reasonable efforts to present
accurate information, but we cannot guarantee the availability or the price of any
particular Product.
9. Licenses.
A Non-Exclusive, Limited License to James Allen Logo and Trademarks: You agree to
display the James Allen logo (the "Logo") on your homepage or other promotional
location of your Web site. We hereby grant to you a non-exclusive, non-transferrable,
revocable, limited license to use our Logo, name, url and trademarks in such a manner
and to otherwise display our Logo, name, url and trademarks (collectively, the "Licensed
Trademarks") on your Web site.
You acknowledge and agree that such license is limited and that all right, title,
ownership and interest in the Licensed Trademarks shall remain with us at all times.
You shall use the Licensed Trademarks in exactly the form provided to you for your
use. Your use of such Licensed Trademarks shall comply with any trademark usage
policies that we may adopt from time to time.
You shall not take any action inconsistent with our ownership of or goodwill associated
with the Licensed Trademarks, including, without limitation, applying for registration
of any of our trademarks (or any mark similar thereto) anywhere in the world. You
agree that any benefits and goodwill arising from your use of the Licensed Trademarks
shall inure solely to our benefit. You agree that you shall not engage, participate
or otherwise become involved in any activity or course of action that diminishes
and/or tarnishes the image and/or reputation of James Allen.
You also agree that you shall not use the Licensed Trademarks in any manner that
is disparaging or that otherwise portrays us in a negative light. We reserve all
of our rights in the Licensed Trademarks and all other intellectual property rights.
You shall obtain no rights in or to the Licensed Trademarks in the event of the
termination of this Agreement. You shall not create, publish, distribute or permit
any written materials that make reference to us, without first submitting such material
to us and receiving our written consent. We may revoke your license at any time.
You shall obtain no rights in and to the Licensed Trademarks in the event of the
termination or expiration of this Agreement.
This license shall terminate upon the effective date of the expiration or termination
of this Agreement.
Non-Exclusive Limited License and Use of Affiliate Logos and Trademarks: You grant
us a non-exclusive license to utilize your names, titles, logos, trademarks and
urls (collectively, the "Affiliate Trademarks") to advertise, market, promote and
publicize in any manner our rights hereunder; provided, however, we shall not be
required to advertise, market, promote or publicize your Web site.
You hereby represent and warrant that you are the sole and exclusive owner of the
Affiliate Trademarks and have the right and power to grant us the license to use
the same contemplated in this Agreement and that such grant does not and will not
(a) breach, conflict with or constitute a default under any agreement or other instrument
applicable to you or binding upon you or (b) infringe upon any trademark, trade
name, service mark, copyright or other proprietary right of any other person or
entity. This license shall terminate upon the effective date of the expiration or
termination of this Agreement.
Use of James Allen's Trademarks on Third-Party Web Sites: Affiliate Partner agrees
not to bid on Merchant trademarks or variations thereof, including, but not limited
to: James Allen, JamesAllen, or JamesAllen.com, within any and all pay-for-placement,
paid inclusion and other search engines. In addition, Affiliate may not claim to
be JamesAllen.com. in any pay-for-placement, paid inclusion or other search engines,
and must clearly state the nature of the Affiliate relationship.
Affiliates violating this policy may be terminated without notice and forfeit all
outstanding and future commissions.
Ownership: The Links and all User data collected pursuant to this Agreement are,
as between us and you, our property and we own all right, title and interest in
the Licensed Trademarks (as described in Section 8(a) above) and User data.
11. Affiliate Partner Responsibilities.
You will be solely responsible for the development, technical operation and maintenance
of your Web site and for all materials that appear on your Web site. You shall be
solely responsible for ensuring that materials posted on your Web site do not violate
or infringe upon the rights of any third party, including copyright, trademark,
privacy or other personal or proprietary rights, and ensuring that materials posted
on your Web site are not libelous or otherwise illegal. You must have express written
consent to use another party's copyrighted or proprietary material.
We disclaim all responsibility if you use another party's copyrighted or other proprietary
material in violation of the law. Further, you will indemnify us and hold us harmless
from all liability, claims, damages and expenses (including, without limitation,
attorneys' fees) relating to the development, operations, maintenance and contents
of your Web site.
12. Affiliate Representations and Warranties.
You hereby represent and warrant to us that this Agreement has been duly executed
and validly approved by your authorized agent and that such Agreement has been validly
executed and delivered by you and constitutes your legal, valid and binding obligation,
enforceable against you in accordance with its terms and that the execution, delivery
and performance of this Agreement are within your legal capacity and power, have
been duly authorized by all requisite action on your part, require the approval
or consent of no other persons and neither violate nor constitute a default under
the provision of any law, rule, regulation, order, judgment or decree to which you
are subject or which is binding upon you, or the terms of any other agreement, document
or instrument applicable to you or binding upon you.
13. Agreement Term.
The term of this Agreement shall begin upon our acceptance of your Online Application
and will end when terminated by either party. Either you or we may terminate this
Agreement at any time, with or without cause, by giving the other party written
notice of termination. Notice by e-mail to your address on our records is considered
sufficient notice for termination of this Agreement.
If this Agreement is terminated because (a) you violated the terms of this Agreement
or (b) because your Web site is deemed by us to be objectionable (as described in
accordance with Section 2 hereof), you are not eligible to receive any Referral
Fees or Commission payments, even for Referral Fees or Commissions that you earned
prior to the date of your termination. If this Agreement is terminated for any other
reason, then you shall be eligible to receive only those Referral Fees and Commissions
generated prior to the termination of this Agreement.
Referral Fees and Commissions earned through the termination of the Agreement shall
remain payable only if the related Product orders are not canceled or returned.
We reserve the right to withhold your final payment for a reasonable period of time
to ensure that the correct amount is paid to you. 14. Agreement Modification.
We may modify any of the terms and conditions contained in this Agreement, at any
time and in our sole discretion, by posting a change notice or new agreement on
our site. Notice of any change to this Agreement delivered by e-mail, to your address
on our records, or the posting of a new agreement on our Web site is considered
sufficient notice for notifying you of a modification to the terms and conditions
of this Agreement. Modifications may include, but are not limited to, changes in
the scope of available Referral Fees, the Commission schedule, payment procedures
and Affiliate Program rules.
All such modifications shall take effect 48 hours after we serve notice as provided
above, unless we indicate otherwise. If a modification is unacceptable to you, your
sole recourse is to terminate this Agreement. Your continued participation in the
Affiliate Program following our posting of a change will constitute binding acceptance
by you of such change.
15. Relationship of the Parties to this Agreement.
Each party shall act as an independent contractor and nothing set forth in this
Agreement will create any partnership, joint venture, agency, franchise, sales representative
or employment relationship between the parties. 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 otherwise, that reasonably would contradict anything in
this Section 14.
16. Unsolicited Commercial e-mail ("spam").
Partner understands that the use of unsolicited commercial e-mail ("spam") by affiliates
is absolutely prohibited. Your participation in the James Allen's affiliate program
constitutes your specific and unconditional agreement to abide this anti-spam policy.
Proper e-mail solicitation, however, can be an important means of advertising your
site and your relationship with James Allen. The following rules represent best
practices, which are permitted under this agreement:
If an "opt-In" system exists for your line of business and target market, you may
use it. (Opt-In systems are those where the user specifically requests to be placed
on a mailing list.)
You may generate your own opt-In list through forms on your web site, as long as
you disclose that users will receive emails from you.
Terms and Conditions
The Use of an "opt-out" system is strictly prohibited.
Use of any lists, whether purchased or created, compiled by means of automated tools
are not permitted. This includes, for example, lists developed by scanning UseNet,
e-mail archives, or Web pages for e-mail addresses, regardless of whether the scan
was "targeted." You must use valid e-mail headers at all times.
You must give the Web address of the opt-in system used and tell the user receiving
your mail that such e-mails can be stopped by visiting that opt-in site.
If anyone contacts you and asks to be removed from your list you will do so within
96 hours and send an e-mail acknowledging the removal.
Violation of these rules will result in the suspension or termination of your affiliate
relationship with James Allen's including the forfeiture of any commissions from
the date of the offending e-mailing.
17. Limitations on Liability.
We will have no liability of any sort arising from any interruptions or errors in
our Web site. WE WILL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES OR ANY LOST REVENUES, DATA OR PROFITS ARISING UNDER OR WITH
RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE WERE ADVISED OR SHOULD
HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY REMEDY.
Further, our aggregate liability arising under or with respect to this Agreement
or the Affiliate Program shall in no event exceed the total amount of Referral Fees
and Commissions paid or payable by us to you under this Agreement. 18. Warranty
Disclaimers.
WE HEREBY DISCLAIM, AND YOU HEREBY RELEASE US, FROM ANY AND ALL LIABILITY FOR DOWNTIME
OR OTHER INTERRUPTIONS IN SERVICE REGARDING THE LINKS AND/OR OUR WEB SITE LIMITING
THE FOREGOING, THE LINKS, THE LICENSED TRADEMARKS ARE PROVIDED TO YOU "AS IS" WITHOUT
ANY WARRANTY OR ANY KIND. WE MAKE NO WARRANTIES OR REPRESENTATIONS OF ANY KIND WITH
REGARD TO THE AFFILIATE PROGRAM OR ANY PRODUCTS, EXPRESS OR IMPLIED, STATUTORY,
ARISING BY LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES
OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. WE DO
NOT WARRANT THAT OUR WEB SITE OR PRODUCTS WILL BE ERROR FREE, FUNCTION WITHOUT INTERRUPTION
OR THAT ANY ERRORS WILL BE CORRECTED. IF AS A MATTER OF LAW WE MAY NOT DISCLAIM
ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMISSIBLE
UNDER APPLICABLE LAW.
19. Indemnification.
You hereby agree to indemnify, defend and hold harmless us and our stockholders,
officers, directors, employees, agents, affiliates, successors and assigns, from
and against any and all claims, losses, liabilities, damages or expenses (including
attorneys' fees) of any nature whatsoever incurred or suffered by us (the "Damages")
insofar as such Damages (or actions in respect thereof) arise out of or are based
upon (a) any claim or threatened claim that our use of the Affiliate Trademarks
infringes on the rights of any third party, (b) the breach of any representation
or warranty or covenant made by you in this Agreement or (c) or any claim related
to your Web site.
20. Independent Investigation.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS
AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY)
SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS
AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETITIVE WITH YOUR WEB
SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE
PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER
THAN AS SET FORTH IN THIS AGREEMENT.
Miscellaneous:
This Agreement shall be governed by the laws of the United States and of the State
of New York, as applied to agreements made, entered into and performed entirely
within the State of New York, notwithstanding your actual state of residence or
principal business location.
Any action relating to this Agreement must be brought in federal or state courts
located in New York County, New York and you irrevocably consent to the jurisdiction
of such courts. You may not assign this agreement, by operation or law or otherwise,
without our prior written consent, any such purported assignment shall be null and
void. Subject to such restriction, this Agreement will be binding upon, inure to
the benefit of and be enforceable against the parties and their respective successors
and assigns. If any provision herein is held to be invalid or unenforceable for
any reason, the remaining provisions will continue in full force without being impaired
or invalidated in any way. Our failure to enforce your strict performance of any
provision of this Agreement will not constitute a waiver of our right to subsequently
enforce such provision or any other provision of this Agreement. This Agreement
constitutes the entire agreement between the parties regarding its subject matter,
supersedes any other agreements or understandings between them, and may only be
amended by a writing signed by us.
|
|
