Terms & Conditions for Funkybears.com Affiliate Program
(Updated:1 February 2008. )
This Agreement contains the terms and conditions
that apply to an individual's or entity's participation in the FunkyBears Affiliate
Program (the "Program"). Hereinafter, "we", "us", or "our" means FunkyBears or any
of our affiliate companies, as the case may be, and "you" means the applicant. "FunkyBears
Site" means the site that has its primary home page at the URL www.funkybears.com,
and "site" means a World Wide Web site. "Your site" means any site that you will
link to the FunkyBears Site (and which you will identify in your Program application).
Save for our obligation to pay referral fees under Section 4 below, we may cause
any of our obligations under this Agreement to be fulfilled by any of our Affiliates
(defined below), on our behalf.
1. Enrollment in the Program
To commence, you will submit a complete Program
application via the FunkyBears Site. We will review your application and will notify
you of its acceptance or rejection. We may reject your application if we determine
(in our sole discretion) that your site is unsuitable for the Program. Examples
of unsuitable sites include (but are not limited to) those that:
a) promote sexually explicit materials
b) promote violence
c) promote illegal activities
d) include Funkybears, any other trademark
of FunkyBears or its affiliates, or variations or misspellings of any of them, in
their URLs to the left of the top-level domain name (e.g., ".com", ".net", ".uk",
etc.) for example, a URL such as "FunkyBears.mydomain.com", "Funky.com" or "FunkyBears.net"
would be unsuitable and violate intellectual property rights.
By participating in the Program you agree
that you will not engage in any such activities. If your application is not approved,
you can reapply to the Program at any time. Please also note that if we accept your
application and your site is thereafter determined (in our sole discretion) to be
unsuitable for the Program, we may terminate this Agreement. Participation in the
Program is limited to parties that lawfully can enter into and form contracts under
applicable law. Minors are not allowed to participate in the Program.
2. Links on Your Site
Once your site has been accepted into the
Program, we will notify you by email and grant you a revocable, non-exclusive, worldwide,
royalty-free license for the duration of the term of this Agreement, solely for
purposes of facilitating referrals from your site to the FunkyBears Site, to provide
on your site one or more of the following types of links to the FunkyBears Site:
a) Image Links
b) Flash Links.
The html code for each of these links is
shown alongside the links and you must paste the exact code without any change or
modification on your web site(s) .You will earn referral fees only with respect
to activity on the FunkyBears Site occurring directly through these Links. We will
not be liable to you with respect to any failure by you to use these Links, including
to the extent that such failure may result in any reduction of amounts that would
otherwise be paid to you pursuant to this Agreement. You will also earn referral
fees from returning customers (if they came to our site the first time after clicking
our Link on your web site). To track these referrals we will be placing cookies
on the customers’ computers when they visit us for the first time. These cookies
will have an expiration period of 1 year, so you will continue to get referral fees
for 1 year for whatever purchases that customers’ makes from our site.
You acknowledge that, by participating in
the Affiliates Program and placing any of the above links within your site, we may
receive information from or about visitors to your site or communications between
your site and those visitors. Your participation in the Program constitutes your
specific and unconditional consent to and authorisation for our access to, receipt,
storage, use, and disclosure of any and all such information, consistent with the
policies and procedures set forth in the Privacy Notice on the FunkyBears Site.
Except for the license granted under this
Section 2, you do not obtain any rights under this Agreement in any intellectual
property, including, without limitation, any intellectual property with respect
to the link formats, technical specifications, guidelines or graphical artwork referenced
above, or with respect to the FunkyBears.com domain name.
You also acknowledge that we (and our corporate
affiliates) may crawl or otherwise monitor your site for the purpose of ensuring
the quality and reliability of Special Links on your site (for example, to detect
links that are broken or non-functional, links to products that are out of stock
or otherwise unavailable, etc.). Therefore, you agree that we and our corporate
affiliates may take such actions and that you will not seek to block or otherwise
interfere with such crawling or monitoring (and that we and our corporate affiliates
may use technical means to overcome any methods used on your site to block or interfere
with such crawling or monitoring).
You also acknowledge that as a participant
in the Program, we may from time to time send you email updates about the Program.
By participating in the Program, you consent to our sending you these email updates.
Further, you acknowledge and agree that you
will: (a) not, in connection with this Agreement, display or reference on your site,
any trademark or logo of any seller of similar /competitive products to the FunkyBears.com
Site; (b) ensure that any link or FunkyBears
trademark (either in logo or text form) is not obscured or altered in any way or
made invisible, illegible or indecipherable to visitors of your site; (c) use any
data, images, text, or other information obtained by you from us or theFunkyBears.com
Site in connection with this Agreement ("Content") only in a lawful manner and only
in accordance with the terms of this Agreement; (e) not modify or alter any Content
that consists of a graphic image.
3. Order Processing
We will process Product orders placed by
customers who follow Links from your site to the FunkyBears.com Site. We reserve
the right to reject orders that do not comply with any 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 by using Links from your site to the FunkyBears.com Site and
will make available to you reports summarizing this sales activity. The form, content,
and frequency of the reports may vary from time to time in our discretion. We shall
also send out periodic newsletters and other information about our products from
time to time to all customers who have placed an order with us.
4. Referral Fees
We will pay you (in accordance with Sections
5 and 6 below) referral fees on completed sales made to third parties who have come
through your site. For a Product sale to be eligible to earn a referral fee, the
customer must click-through a Link from your site to the FunkyBears.com Site( at
least for the first purchase - thereafter we will place a cookie on his computer
and track all further purchases made by him upto a period of 6 months), and purchase the Product and complete the
payment during a session. . We will only pay referral fees on eligible Products
after order, payment and shipping have occurred.
To permit accurate tracking, reporting and
fee accrual, you must ensure that the Links between your site and the FunkyBears.com
Site are properly formatted. We will not be liable for paying referral fees on purchases
that are not correctly tracked and reported because the links between your site
and the FunkyBears.com Site are not properly formatted. In case the customer deletes
cookies from his computer, we will not be held responsible for any loss of commission
that may have accrued to you. Our system automatically detects any cookies that
may have been placed on the customers' computers when they visit us and track the
sale and see that referral fees are paid to you.
You may not purchase products during sessions
initiated through the links on your site for your own use, for resale or commercial
use of any kind. This includes orders for customers or on behalf of customers or
orders for products to be used by you or your friends, relatives, or associates
in any manner. Such purchases may result (in our sole discretion) in the withholding
of referral fees and/or the termination of this Agreement.
In addition, you may not: (a) directly or
indirectly offer any person or entity any consideration or incentive (including,
without limitation, payment of money (including any rebate), or granting of any
discount or other benefit) for using
Links on your site to access the FunkyBears.com Site
(b) attempt to intercept or re-direct (including, without limitation, via
user-installed software) traffic from or on, or divert referral fees from, any web
site that participates in the Program; or seek to purchase or register any keywords,
search terms or other identifiers that include the word "FunkyBears" or variations
thereof ("Proprietary Terms") for use in any search engine, portal, sponsored advertising
service or other search or referral service. From time to time we may request that
you cause any applicable Web search provider to exclude Proprietary Terms from keywords
used to display your advertising content in association with search results, assuming
the provider of such Web search engine offers such exclusion capabilities. If we
determine, in our sole discretion, that you have engaged in any of the foregoing
activities or, as the case may be, refused promptly to comply with a request from
us to exclude Proprietary Terms from any keyword as mentioned above, we may (without
limiting any other rights or remedies available to us) withhold any referral fees
otherwise payable to you under this Agreement and/or terminate this Agreement.
5. Referral
Fee Schedule
During each calendar month, for
Products sold during sessions initiated through
Links on your site, you will earn (subject to the other terms of this Agreement)
referral fees in accordance the "Scalable
Fee Structure" described below which
basically rewards Performance and is based on your performance each month as follows
Sales achieved in
the month Commission Earned
Up to £2,000
15%
£2,001 to £4,000
20%
£4,001 Upwards
25%
6. Referral Fee Payment
We will pay you referral fees on a monthly
basis for Products shipped in the applicable month. Approximately 15 days following
the end of each calendar month, we will either (a) send you a check for the referral
fees earned, (b) directly deposit the referral fees earned into your bank account
(if you want us to use this method of payment, please note that you will have to
provide us with the name of your bank, the bank account type, the 9-digit routing
number/ABA number, the account number and the primary account holder name as it
appears on the bank account). With regard to charge-backs suffered by us we claim
the right to deduct such commission from the month following the date of charge-back.
This will be highlighted on your monthly statement.
7. Policies and Pricing
Customers who buy products through this Program
will be deemed to be our customers. Accordingly, all of our 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. For example, we will determine the prices to be charged for products
sold under this Program in accordance with our own pricing policies. Product prices
and availability may vary from time to time.
8. Identifying Yourself as an Affiliate
We may provide to you the necessary banner
which identifies your participant as FunkyBears affiliate. In addition, you may
not in any manner misrepresent or embellish the relationship between us and you,
or express or imply any relationship or affiliation between us and you or any other
person or entity except as expressly permitted by this Agreement (including by expressing
or implying that we support, sponsor, endorse, or contribute money to any charity
or other cause).
9. Limited License
We grant you a nonexclusive, revocable right
to use the graphic image and text described in Section 8 and such other text or
images for which we grant express permission, solely for the purpose of identifying
your site as a Program participant and to assist in generating Product sales. You
may not use such image or text in an offline promotion or other offline manner (e.g.,
in any printed material, mailing or other document). You may not modify the 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. You agree to follow our Trademark Guidelines,
as those guidelines may change from time to time. We may revoke your license at
any time by giving you written notice.
10. 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. For example, you will be solely responsible for:
a) the technical operation of your site and
all related equipment
b) ensuring the display of
Links on your site does not violate any agreement between you and any third party
(including without limitation any restrictions or requirements placed on you by
a third party that hosts your site)
c) creating and posting Product descriptions
on your site and linking those descriptions to the FunkyBears.com Site catalog
d) the accuracy and appropriateness of materials
posted on your site (including, among other things, all Product-related materials
and any information you include within or associate with Special Links)
e) 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)
f) ensuring that materials posted on your
site are not libelous or otherwise illegal
ensuring that your site accurately and adequately
discloses, either through a privacy policy or otherwise, how you collect, use, store,
and disclose data collected from visitors, including, where applicable, that third
parties (including advertisers) may serve content and/or advertisements and collect
information directly from visitors and may place or recognize cookies on visitors'
browsers.
We disclaim all liability for these matters.
Further, you will indemnify and hold us harmless from all claims, damages, and expenses
(including, without limitation, attorneys' fees) relating to the development, operation,
maintenance, and contents of your site.
11. Compliance with Laws
As a condition to your participation in the
Program, you agree that while you are a Program participant you will comply with
all laws, ordinances, rules, regulations, orders, licenses, permits, judgments,
decisions or other requirements of any governmental authority that has jurisdiction
over you, whether those laws, etc. are now in effect or later come into effect during
the time you are a Program participant. Without limiting the foregoing obligation,
you agree that as a condition of your participation in the Program you will comply
with all applicable laws (UK, or otherwise) that govern marketing email, including
without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.
12. Term of the Agreement
The term of this Agreement will begin upon
our acceptance of your Program 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. Upon the termination
of this Agreement for any reason, you will immediately cease use of, and remove
from your site, all links to the FunkyBears.com Site, and all of our trademarks,
trade dress, and logos, and all other materials provided by or on behalf of us to
you pursuant hereto or in connection with the Program. You are eligible to earn
referral fees only on sales of Products
that occur during the term, and referral fees earned through the date of termination
will remain payable only if the related orders are not canceled or returned. We
may withhold your final payment for a reasonable time to ensure that the correct
amount is paid.
13. 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 FunkyBears.com Site. Modifications may
include, for example, changes in the scope of available referral fees, referral
fee schedules, 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 THE
FUNKYBEARS.COM SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
14. 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 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. 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 referral fees paid or payable to you under
this Agreement.
16. 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,
non-infringement, 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 the FunkyBears.com Site will be uninterrupted or error-free, and we will not
be liable for the consequences of any interruptions or errors.
17. 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 WEB SITES THAT ARE SIMILAR TO OR COMPETE
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.
18. Arbitration
Any dispute relating in any way to this Agreement
(including any actual or alleged breach hereof), any transactions or activities
under this Agreement or your relationship with us or any of our affiliates shall
be submitted to confidential arbitration in Jersey, Channel Islands, except that,
to the extent you have in any manner violated or threatened to violate our intellectual
property rights, we may seek injunctive or other appropriate relief construed according
to English Law (and to consent to non-exclusive jurisdiction and venue in such courts)
or any other court of competent jurisdiction. Arbitration under this agreement shall
be conducted under the rules then prevailing in the English Courts. The arbitrator's
award shall be binding and may be entered as a judgment in any court of competent
jurisdiction. To the fullest extent permitted by applicable law, no arbitration
under this Agreement shall be joined to an arbitration involving any other party
subject to this Agreement, whether through class arbitration proceedings or otherwise.
19. Miscellaneous
This Agreement will be governed by the laws
of the English Courts, without reference to rules governing choice of laws. 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 be 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.
