NY FLAVAS
AFFILIATE AGREEMENT
NY Flavas Affiliate Agreement
Please read this carefully before submitting
the application (the "Application") for participation
in the NY Flavas Affiliate Program (the "Affiliate Program").
This Affiliate Agreement ("Agreement") is made between
NY Flavas and the participating web affiliate in the Share A Sale
Network ("Affiliate"). By submitting the Application,
you hereby ACCEPT AND AGREE to all of the terms and conditions set
forth in this Agreement.
Background
Affiliate and NY Flavas are each enrolled
in the Share A Sale Network.
Affiliate and ShareASale.com
each desire to establish the general terms and conditions which
shall govern advertising and commission arrangements between Affiliate
and ShareASale.com which result from their participation in the
Share A Sale Network.
1. Enrollment in the Affiliate
Program
To begin the enrollment
process, you will need to review the terms of this agreement and
indicate your acceptance of these terms by clicking "I Agree"
at the bottom of the page. Once you have agreed to the terms, you
will be linked to our Affiliate Application. After you submit a
complete Affiliate Application via our site, we and/or our ("Affiliate
Partner") ShareASale will evaluate your application and notify
you of your acceptance or rejection in a timely manner. We and/or
our Affiliate Partner may reject your application if we and/or our
Affiliate Partner determine (in our sole discretion) that your site
is unsuitable for the Affiliate Program. Unsuitable sites include,
but are not limited to, sites that:
- promote or contain or link to sexually explicit materials.
- promote violence
- promote discrimination based on race, sex, religion, nationality,
disability, sexual orientation, or age
- promote illegal activities
- violate intellectual property rights or violate any local,
state, federal or other law or regulation
- contain any libelous, defamatory or disparaging materials
- contain little or no original content
If we and/or our Affilate
Partner reject your application, you are welcome to reapply to the
Affiliate Program at any time. You should note that if you are accepted
to participate in the Affiliate Program and your site is determined
at a later time (in our sole discretion) to be unsuitable for the
Affiliate Program, we and/or our Affiliate Partner may terminate this
Agreement.
2. Promotion of our Affiliate Relationship
In the event your Application is accepted by
NY Flavas and you agree to participate as an affiliate site, we will
make available to you a variety of graphic links (each of these links
referred to herein as "Links" or, individually, as a "Link")
which, subject to the terms and conditions hereof, you may display
on relevant areas of your site. Once your application is accepted
these links will be accessible to you through our Affiliate Partner's
site ShareASale.com. The Links will serve to identify your site as
a member of our Affiliate Program and will establish a Link from your
site to ours.
3. Our Responsibilities
We and/or our Affiliate Partner will be responsible
for providing all information necessary to allow you to make appropriate
Links from your site to our site. We will be solely responsible for
processing orders placed on our site by a customer following a Link
from your site, tracking the volume and amount of sales generated
by your site, and providing information to affiliate sites regarding
sales statistics. We reserve the right to reject orders. We will be
responsible for order entry, payment processing, shipping, cancellations,
returns, and customer service related to our site.
4. Other Responsibilities for
Affiliate Sites
In utilizing the Links, you agree that you will
cooperate fully with us in order to establish and maintain such Links.
In order to permit accurate tracking and reporting, you will be responsible
for ensuring that the Links between our site and yours are properly
formatted.
If you qualify and agree to participate as an affiliate site in our
Program, you shall display Links prominently in relevant areas of
your site, subject to any and all limitations herein and with our
consent.
As an affiliate site in the Program, you are entitled to earn commissions
as set forth below.
We and/or our Affiliate Partner have the right based on our sole discretion
to monitor your site at any time to determine if you are in compliance
with the terms of this Agreement.
You agree not to buy or encourage others to buy nyflavas.com products
through your Links for subsequent resale.
You agree that the Links will in no way affect or alter the look,
feel, or functionality of our site. Without limiting the generality
of the foregoing, you are expressly prohibited from framing our site
in any manner, including without limitation causing your site's tool
bar to appear on our site. You shall not alter, modify, or expand
the Links in any way without our express prior written consent.
5. Commission Determination
Sales of nyflavas.com products will qualify
for a commission when all of the following conditions are met: 1)
products are sold by us, 2) products are purchased by users linking
to our site from your site through a Link, 3) products are shipped
by us, and 4) nyflavas.com has received full payment.
Commission will be based
on the aggregate amount actually paid to us for qualifying purchases,
excluding amounts collected by nyflavas.com for sales tax, duties,
shipping and handling, credit card fraud and bad debt, and allocations
of 20% for returned items ("net sales"). All available items
on our site will be included in the computation of net sales, regardless
of whether the item is a rush order or special item.
Commission rates are as follows:
- 4% for net sales for qualifying purchases up to $2,500 in a
month
- 6% for net sales for qualifying purchases from $2,501 - $8,500
in a month
- 8% for net sales for qualifying purchases above $8,500 in a
month
The commissions paid under this Agreement are for use by you only
and may not be transferred or in any manner passed on to any third
party unless expressly authorized in writing by us.
6. Commission Payment
Commissions fees will be paid on a monthly basis.
Our network partner, ShareASale.com will send you a check for the
cumulative commission fees earned on products that were shipped during
that month and any and all other fees due to you. If the fees payable
to you for any calendar month are less than $50.00, ShareASale will
hold those fees until the total amount due is at least $50.00 or until
this Agreement is terminated. Sales will be deemed "pending"
after each sale to ensure delivery has been made, products have not
been returned, and the Order is not fraudulent. Payments will be dispersed
according to ShareASale.com policies.
7. Reports of Sales
You will be able to check your sales statistics
through our Affiliate Partner's site ShareASale.com. (http://www.shareasale.com/a-login.cfm).
This site is password protected, and you will be given a password.
8. Policies and Pricing
Customers purchasing nyflavas.com products through
the Program will be deemed our customers. All rules, policies, terms
and conditions, and operating procedures concerning customer orders,
customer service, and nyflavas.com product sales will apply to those
customers. We may change our policies and operating procedures, including
pricing, at any time. We solely will determine the prices to be charged
for nyflavas.com products sold under the Program in accordance with
our own pricing policies. You may not include price information on
your site, unless pricing information is made available on links we
provide. Prices and availability of nyflavas.com products may vary
from time to time. We will use commercially reasonable efforts to
present accurate information, but we cannot guarantee the availability
or price of any particular product.
9. Publicity/Use of Our Name
You cannot create, publish, distribute, or permit
any material that directly or indirectly makes reference to us or
uses our name or any of our trademarks without first submitting such
material to us and receiving our written consent.
10. Licenses and Use of the
nyflavas.com Logos and Trademarks
a. We grant you a non-exclusive, non-transferable,
revocable right to 1) access our site through the Links solely in
accordance with the terms of this Agreement, and 2) to use our marks
and logos only in the forms that we provide (the "Marks")
(or such other images or messages for which we granted prior express
written permission, hereafter "Pre- approved Images") solely
in connection with such Links and only as permitted herein. You may
not alter, modify, or change the Marks or Pre-approved Images or message
in any way. You are only entitled to use the Marks to the extent that
you are a member in good standing of the Program.
b. You cannot make any use of any Marks 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 Marks, our ownership and right to use and control the
use of our Marks. You further agree that all use of our Marks 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 Marks other than to use the Marks in connection with this Agreement.
You agree not to use the Marks 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.
c. You grant us a non-exclusive license to utilize your names, titles,
and logos ("Affiliate Marks") to advertise, market, promote,
and/or publicize in any manner, provided however that we shall not
be required to do so. This license shall terminate upon the effective
date of the expiration or termination of this Agreement.
11. Obligations Regarding 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, the technical operation of your site and all related equipment;
the accuracy and propriety of materials posted on your site (including
but not limited to, all nyflavas.com product related materials); ensuring
that materials posted on your site do not violate or infringe upon
the rights of any third party and are not libelous or otherwise illegal.
We disclaim all liability for all such matters. Further, you will
indemnify and hold us harmless from all claims, damages, and expenses
including, but not limited to attorneys' fees, relating to the development,
operation, maintenance, and contents of your site.
You hereby agree that your site will not, in any way, copy or resemble
the look and feel of our site, nor will you do anything to create
the impression that your site is our site or a part of our site, including
without limitation, framing our site in any manner. You also hereby
agree that your site will not contain any content of our site or any
materials which are proprietary to nyflavas.com, except 1) with our
prior permission, or 2) the materials ("links") we provide
you in accordance with the provisions hereof or the policies or instructions
thereon.
12. Term of the Agreement
The term of this Agreement will begin upon our
acceptance of your Affiliate Program application and will end immediately
when terminated by either party. Either party may terminate this agreement
at any time, with or without cause, by giving the other party written
notice of termination. If we terminate this Agreement or notify you
of a breach by you, you shall be required to remove all Links within
one (1) hour of receipt of notice. You are only eligible to earn commission
on sales incurring during the term, and commissions earned through
the date of termination will remain payable only if the related nyflavas.com
product orders are not cancelled or returned. We may withhold your
final payment for a reasonable time to ensure that the correct amount
is paid.
13. Modification
We reserve the right to modify any terms and
conditions contained in this Agreement at any time. You will be notified
by email and a change notice will be posted on our site. Modifications
may include, but are not limited to, changes of the scope of available
commissions, commission schedules, payment procedures, and Affiliate
Program rules. If any modification is unacceptable to you, your only
recourse and sole remedy is to terminate this Agreement. Your continued
participation in the Affiliate Program following our posting of a
change notice or new agreement on our site will constitute your binding
acceptance of the change.
14. Relationship of Parties
The parties to this Agreement are independent
contractors, and nothing 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.
15. Disclaimers
We make no express or implied warranties or
representations with respect to the Affiliate Program or any nyflavas.com
products sold through the Affiliate Program (including without limitation,
warranties of fitness, merchantability, non-infringement, or any implied
warranties arising out of 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.
16. Representations and Warranties
You hereby represent and warrant to us as follows:
You will use the Links only as authorized hereunder.
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.
The execution, delivery, and your performance of this Agreement, and
your consummation of the transactions contemplated hereby will not,
with or without notice, lapse of time, or both, conflict or violate
1) any provision of law, rule, or regulation to which you are subject,
2) any provision of your by-laws or certificate of incorporation,
or 3) any Agreement or other instrument applicable to you or binding
upon your assets or properties.
You are the sole and exclusive owner of the Affiliate Marks and have
the right and power to grant us the license to use your trademarks
in the manner contemplated herein, and such grant does not and will
not 1) breach, conflict with, or constitute a default under any agreement
or other instrument applicable to you or binding upon your assets
or properties, or 2) infringe upon any trademark, trade name, service
mark, copyright, or other proprietary right of any other person or
entity.
No consent, approval, or authorization of, exemption by, or filing
with any governmental authority or third party is required in connection
with the execution, delivery, and performance of this Agreement or
any other action taken by you.
To the best of your knowledge there is no pending threatened claim,
action, or proceeding against you, or any affiliate of yours with
respect to the execution, delivery, or consummation of this Agreement,
or the Affiliate Marks. To the best of your knowledge, there is no
basis for any such claim, action, or proceeding.
You are an adult of at least 18 years of age.
17. Confidentiality
Each of the parties hereto agrees that all information
including, without limitation, the terms of this Agreement, business
and financial information, product designs, customer and vendor lists;
and pricing and sales information, concerning us, you, or any of our
affiliates, principals and employees shall remain strictly confidential
and secret. Such information 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
1) to any person pursuant to a subpoena issued by any court or administrative
agency, 2) to its accountants, attorney, or other agents on a confidential
basis, and 3) otherwise as required by applicable law, rule, regulation,
or legal process.
18. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL,
OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR REVENUE, PROFITS, OR DATA,
ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE NETWORK,
EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER,
OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND
THE AFFILIATE NETWORK WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR
PAYABLE TO YOU UNDER THIS AGREEMENT.
19. Indemnification
You hereby agree to indemnify and hold harmless
us and our 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 1) any claim that our use of
the Affiliate Marks infringes on any trademark, trade name, service
mark, copyright, license, intellectual property, or other proprietary
right of any third party, 2) any failure or breach of any representation,
warranty, covenant, or agreement made by you herein, 3) any misuse
of our name or trademarks, or 4) any claim related to your site, including,
without limitation, content therein not attributable to us.
20. 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 websites that are similar to or compete with your web site.
You have independently evaluated the desirability of participating
in the affiliate network and are not relying on any representation,
guarantee, or statement other than as set forth in this Agreement.
21. Governing Law
This agreement will be governed by the laws
of the United States and the State of New York, without reference
to rules governing choice of laws. Any action relating to this Agreement
must be brought in federal or state courts located in New York, New
York, and you irrevocably consent to the venue and jurisdiction of
such courts. You may not assign this agreement, by operation of law
or otherwise, without our prior written consent. However, we shall
have the right to assign our rights hereunder to any of our related
or affiliated entities. 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 or subsequently enforce
such a provision or any other provision of this Agreement.
I AGREE
|
