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Revised on 03/08/2006
AmeriMark affiliate program agreement
This Agreement defines your relationship with AmeriMark Direct, LLC (herein after referred to as amerimark.com). This Agreement contains the terms and conditions that apply to a party's participation as an affiliate in the amerimark.com Affiliate Program (the "Program"). As used in this Agreement, "we" means amerimark.com and "you" means the applicant party. "Site" means a World Wide Website and, depending on the context, refers to the amerimark.com Website or to the site that you will link to our site (and which you will identify in your Program application).1. Enrollment in the Program
You may submit a completed Program application to begin the enrollment process. Submission of your application for enrollment into the Program implies acceptance of the terms set forth in this Agreement. We will evaluate your application in good faith and notify you of its acceptance or rejection. We may reject your application if, in our sole discretion, we determine for any reason that your Site is unsuitable for the Program. An unsuitable Site includes, but is not limited to, a Site that promotes: lewdness; pornography; obscenity; violence; discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; gambling; or illegal activities. Unsuitable Sites also include a Site that uses amerimark.com, amerimark.org, AmeriMark Direct, AmeriMark, Anthony Richards, anthonyrichards.com, Beauty Boutique, beautyboutique.com, timeformecatalog.com, Complements by Anthony Richards, Essentials by Anthony Richards, Healthy Living, Windsor Collection or variations or misspellings thereof in its domain names or otherwise violate intellectual property rights of AmeriMark Direct LLC. Further, we will reject your application if it is incomplete. If we reject your application, you may reapply to the Program at any time; however, you shall not link to our Site unless you are approved for the Program.2. Linking
Once you have been accepted into the Program, you will be provided with links that connect your Site to areas within our Site using special URLs specified in the Program (the "Links"). You may post as many Links to the Required URLs as you like on your Site. The position, prominence, and nature of Links on your Site shall comply with any requirements specified in this Agreement.In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. You also agree that you will display in your site only those graphic or textual images (indicating a Link) that are provided by us, and you will substitute such images with any new images provided by us from time to time throughout the term of this Agreement. All Affiliate Sites shall display such graphic and/or textual images prominently in relevant sections of their site. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. Each Link connecting users of your site to our site will in no way alter the look, feel, or functionality of our site.
We will refuse all applications or signups from affiliates which we believe participate in spyware, adware or parasiteware techniques for driving traffic. We reserve the right to research and investigate affiliates and their activities and, at our own discretion, determine whether or not these practices are in place. Affiliates found in violation of this policy will be immediately terminated from the program and will forfeit all commissions.
You may not link to products or pages that have been forbidden by amerimark.com. These products and pages may change without notice but will be listed on the amerimark.com affiliate information site. If a product or page you are linked to is added to the list of products and pages that may not be linked to, you must remove the links from your site immediately.
3. Order Processing
We will process product orders placed by customers who Link from your Site to our Site in accordance with applicable legal requirements. We reserve the right to reject orders that do not comply with any reasonable requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms; process payments, cancellations, and returns; and handle customer service. We will track sales made to customers who purchase products through a Link from your Site to our Site and you will be provided with reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time but for the most part will be on a weekly basis. To permit accurate tracking, reporting, and fee accrual, you must ensure that the Links between your Site and our Site are properly formatted.4. Referral Fees and Flat Fees
We will pay for marketing fees accrued on sales of certain products to third parties (the "Referral Fees"). For a product sale to generate a Referral Fee, a customer must visit our Site through a Link; place an order for any of the products on the amerimark.com site; accept delivery of the products at the shipping destination; and remit full payment to us (the "Qualified Sale"). We will pay a Referral Fee on any products that are added to the customer's shopping cart for up to 14 days after the customer used the Link from your Site or for any additional orders placed by a customer for up to 14 days after the customer used the Link from your Site. We will not pay Referral Fees if within the 14 day time period the customer enters our site through another affiliate's link or through another marketing effort being executed by amerimark.com.We may pay you additional Flat Fees for a Qualifying Sale made for certain items or product lines that we may offer from time to time.
5. Fee Schedule
You will earn Referral Fees based on the sale price of amerimark.com products, according to fee schedules to be established by us. "Sale price" means the cost listed on the amerimark.com Site and excludes costs for shipping, handling, rebates, and taxes. The fee schedule to which you agree is listed in this agreement. All percentages listed are of "Net Receipts" for those sales of amerimark.com products via a Link from your Site(s)."Net Receipts" shall mean the (a) revenues generated by all sales of amerimark.com products to those customers who (i) "clicked" a Link from your Site during the term of this Agreement, and (ii) then purchased amerimark.com product(s) via amerimark.com's shopping cart, less (b) refunds, returns, cancellations and charge backs and shall not include costs or revenues affiliated with sales taxes and shipping and handling. Net Receipts shall not include any other sale or service which amerimark.com subsequently makes to such customer after the 14 day return period has expired.
You will earn commissions (referral fees) based on "Net Receipts" revenue according to the commissions schedules to be established by us. The current commission schedule is:
Monthly Sales Commission $0-$500 8% of total sales $500.01-$1500 9% of total sales $1500.01 -$5000 11% of total sales $5000.01 + 15% of total sales 6. Fee Payment
When the total commissions due to you (based of qualifications listed in section 5) exceed $25.00, we will send you a commission check of the applicable amount and a statement of activity to you. Commission checks and statements of activity will be sent within 30 days after the end of every month. If the balance of your account is less than $25.00, we will roll over the balance to the next month. Amounts rolled over in your fee account will not bear interest.7. Anti-SPAM Policy
We do not and will not tolerate the sending of unsolicited email messages and will prosecute all offenders to the fullest extent of the law. By agreeing to the terms and conditions of this agreement, you also agree to the following.
a) e-mails promoting AmeriMark shall not contain or include a falsified sender domain name or falsified IP address;
b) e-mails promoting the AmeriMark advertisements shall not be routed or relayed through servers that the sender does not have explicit authorization to use;
c) e-mails promoting the AmeriMark advertisements shall not contain or include a false or misleading subject line that attempts to disguise or conceal the content of the e-mail;
d) all e-mails shall contain or include valid and responsive contact information of the sender, list manager or list owner; This includes your physical address.
e) no e-mails promoting AmeriMark shall be sent for the purpose of harvesting the e-mail addresses in order to send future unsolicited e-mails;
f) all e-mails promoting AmeriMark will be sent to individuals who have given you their "Affirmative Consent" as defined in Sec. 3.1 of the "CAN-SPAM Act of 2003" (viewable at GPOAccess.gov) which by its reference is incorporated into this document.
g) every e-mail promoting AmeriMark advertisements shall contain a functioning return electronic mail address or other Internet-based mechanism clearly displayed that a recipient may use to submit in a manner specified in the message a reply electronic mail message or other form of Internet-based communication requesting not to receive future e-mail messages from you
h) you shall process any and all opt-out requests within 5 business days, or less of the request.
i) unless otherwise directed by AmeriMark in writing, you shall not use AmeriMark, or it's represented advertisers names (including any abbreviation thereof) or any trademark, trade name, service mark, logo or other AmeriMark identifying information in the originating or return e-mail address line, header or subject line of any e-mail transmission and that all e-mail transmissions shall contain language in the body and both the "from" line as well as the "re:" line that clearly announces that the offer embedded in the e-mail is being sent by you for the benefit of your users.
j) you agree and affirm to comply with all the rules and regulations set forth in the "CAN-SPAM Act of 2003" as well as all obligations and provisions herein.8. Anti-Spyware Policy
AmeriMark does not employ nor endorse spyware of any kind, and does not allow affiliates using or promoting spyware in our program. Any potential affiliate will be denied if found to use or endorse spyware. Any existing affiliate who is suspected of using or endorsing spyware will be suspended pending investigation, and subsequently removed if suspicions are confirmed. If an affiliate is found to use spyware, no commissions will be paid to the affiliate.9. Policies and Pricing
Customers who buy products through this Program will be deemed to be customers of amerimark.com. Accordingly, all amerimark.com rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time in a manner consistent with applicable law. For example, we will determine the prices to be charged in accordance with our own pricing policies. Product prices and availability may vary from time to time. Because the price of any product is subject to change at any time, you may not include price information on your Site. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.10. Terms of the Agreement
The terms of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party in accordance with this Section 10. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party prior written notice of termination. We reserve the right to terminate your participation in the Program at any time if we determine, in our sole discretion, that your Site is unsuitable for the Program. Upon the termination of this Agreement for any reason, you must immediately cease use of, and remove from your Site(s), all links to our Site, and all amerimark.com trademarks, trade dress and logos, and all other materials provided by or on behalf of us to you in connection with the Program. If you have been found to have been in violation of this Agreement and if after a written warning you have not corrected the violation or if after a written warning you resume the violation, we will terminate your participation from the Program and any fees or commissions owed to you at that time will be forfeited. If we terminate your participation in the Program for reasons other than violations of the terms of this Agreement, you are only eligible to earn Referral fees on Qualifying Sales occurring during the term, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. In the event overpayment is made by us, you agree to promptly remit such excess payment upon notification by us. We reserve the right to withhold your final payment for 60 days, a reasonable time to allow any cancellation or return and ensure the correct amount is paid.11. Limited License
We grant you a nonexclusive, revocable right to use the Link(s) and any graphic image and text necessary to establish a Link to the amerimark.com Site from your Site and such other images for which we grant express permission, solely for the purpose of identifying your Site as an affiliate and to assist in generating sales. You may not modify a Link, any graphic image or text, or any other of our images, in any way. We reserve all of our rights in the graphic image and text, any other images, our trade names and trademarks, and all other intellectual property rights. We may revoke your license at any time by providing written notice.You agree to follow our Trademark Guidelines (set forth below), as those guidelines may change from time to time. These Trademark Guidelines apply to your use of amerimark.com and other trademarks and service marks belonging to amerimark.com (the “Trademark(s)”):
1. You may use Trademarks only for purposes expressly authorized in this Agreement or expressly authorized in writing by us.
2. You may not modify the Trademarks in any manner. For example, you may not change the proportion, color, or font of the Trademarks.
3. You may not display Trademarks in any manner that implies endorsement of your Site or business by amerimark.com outside of your involvement in the Program.
4. You may not use Trademarks to disparage amerimark.com, its products or services, or in a manner that, in our reasonable judgment, may diminish or otherwise damage our goodwill in the service mark.
5. You must use Trademarks in proper registration form by using the TM or circle R symbol as applicable next to the Trademarks.
6. You acknowledge that all rights to the Trademarks are our exclusive property and all goodwill generated through your use of the Trademarks will inure to our benefit.
7. You may not use the Trademarks, or any variation thereof, in metatags
8. You may not use the Trademarks, or any variation thereof, in hidden text or source code.
9. You may not use the Trademarks, or any variation thereof, in your domain name or any other part of your Universal Record Locator (URL).You cannot make any use of any Trademarks or any Pre-approved Images for purposes other than Links without first submitting a sample to us and obtaining our prior written consent. You agree that you will not in any way dispute, or do anything to impair the validity of our rights in our Trademarks, our ownership and right to use and control the use of our Trademarks. You further agree that all use of our Trademarks by you shall inure to our benefit of and on behalf of us and agree that nothing in this Agreement shall give you any right, title or interest in our Trademarks other than to use the Trademarks in connection with this Agreement. You agree not to use the Trademarks in any manner that is disparaging or that otherwise portrays us in a negative light. We may revoke your license at any time by giving you written notice. This license shall terminate upon the effective date of the expiration or termination of this Agreement.
We reserve the right in our sole discretion to modify the Trademark Guidelines at any time. We reserve the right to take action against any use that does not conform with the Trademark Guidelines.
12. Pay Per Click Bidding (PPC) & Search Engine Keywords
We reserve all rights in our trade names and trademarks; therefore you agree not to purchase keywords including, but not limited to amerimark.com, amerimark.org, AmeriMark Direct, AmeriMark, Anthony Richards, anthonyrichards.com, Beauty Boutique, beautybotique.com, timeformecatalog.com, Complements by Anthony Richards, Essentials by Anthony Richards, Healthy Living, and Windsor Collection or variations or misspellings thereof from any third party. You may not outbid or have higher rank than Amerimark.com ad listings for products sold by AmeriMark.You may not place ads on behalf of amerimark.com or its partners on any network where you must pay a fee, either on a subscription basis, per impression basis or per click basis, without express, written permission from amerimark.com.
13. Responsibility for Your Site
You will be solely responsible for the development, operation, and maintenance of your Site and for all materials that appear on your Site. Such responsibilities include, but are not limited to:i. The technical operation of your Site and all related equipment;
ii. The accuracy and appropriateness of materials posted on your Site;
iii. Ensuring that materials posted on your Site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights);
iv. Ensuring that materials posted on your Site are not libelous or otherwise illegal; and
v. Creating and posting product reviews, descriptions, and references on your Site and linking those descriptions to our Site.We disclaim all liability for these matters. You hereby agree that your Site will not, in any way, copy or resemble the look and feel of our Site nor will you create the impression that your Site is our Site or is part of our Site, nor will you frame any page on our Site being viewed by a user of your Site who links to our Site through a Link. Additionally, you agree that you will not create an integrated shopping cart between our Site and your Site.
You also hereby agree that your Site will not contain any content of our Site or any materials which are proprietary to amerimark.com, except (i) with our prior written permission, or (ii) materials which are obtained by you via the Program in accordance with the provisions hereof or the policies or instructions thereon. You agree that you will not send any electronic communications, including but not limited to emails or newsletters, to any of your subscribers regarding us, without prior express written approval. You further agree that you will not purchase or otherwise contract with a third party to exploit any of our marks for the purpose of causing your Site to appear as a search result or for any other reason without prior express written approval.
14. Representations and Warranties
You hereby represent and warrant to us as follows:
i. This Agreement has been duly and validly agreed to and accepted by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
ii. The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
iii. You are the sole and exclusive owner of your trademarks and have the right and power to grant to us the license to use your trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
iv. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.
v. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
vi. You will comply with all applicable local, state and federal laws, statutes, orders, ordinances and regulations relating to performance of the Program.
vii. You are an adult of at least 18 years of age.15. Relationship of Parties
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. 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.
16. Confidentiality
Except as otherwise provided in this Agreement or with the consent of the party hereto, each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or you, shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party 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 such party hereto or its affiliates. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person 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 including, without limitation, the Securities Act of 1933, as amended, and rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.17. Disclaimers
WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). 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.18. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL MARKETING FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.19. Indemnification
You hereby agree to indemnify and hold harmless amerimark.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 attorney's 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 your 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 the operation of your Site.20. 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 a new agreement on the amerimark.com affiliate site. Modifications may include, for example, changes in the marketing fee schedule, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.21. Independent Investigation
You acknowledge that you have read this Agreement and agree to all 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 Sites that are similar to or compete with your 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.22. Miscellaneous
This Agreement will be governed by the laws of the United States and the state of Ohio, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Cleveland, Ohio, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. 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.