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Agreement
This Agreement contains the complete terms and conditions that apply to an
individual's or entity's participation in the PartySoda.com Affiliate Program
(the "Program"). As used in this Agreement, "we" (and
"us" and "our") means PartySoda.com, PLSpecialties Ltd.,
affiliated websites and companies, and "you" (and "your")
means the applicant. "Site" means a World Wide Web site and, depending
on the context, refers to our site at http://www.partysoda.com,
or to your site. Save for our obligation to pay referral fees, which may be
performed solely by us, we may cause any of our obligations under this Agreement
to be fulfilled by any of our affiliates on our behalf.
1. How Do I Enroll in Your Affiliate Program?
To begin the enrollment process you must submit a completed Affiliate Program
application. Upon receipt of your application we will evaluate it and notify you
of its acceptance or rejection.
Although we hope your application will be successful, we reserve the right to
reject or cancel applications for any or no reason. For example, we may reject
or cancel your application if we determine that your site is unsuitable for the
Program, including if it:
A. Promotes sexually explicit materials
B. Promotes violence
C. Promotes discrimination based on race, sex, religion, nationality,
disability, sexual orientation, or age
D. Promotes illegal activities
E. Incorporates any materials which infringe or assist others to infringe on
any copyright, trademark or other intellectual property rights or to violate the
law
F. Includes "PartySoda" or variations or misspellings thereof in
its domain name
G. Is otherwise in any way unlawful, harmful, threatening, defamatory,
obscene, harassing, or racially, ethnically or otherwise objectionable to us in
our sole discretion.
H. Purchase or bid for placement of any of PLSpecialties Ltd 's trademarked
company names. These names include: (Partysoda.com, PLSpecialties.com) and any
variation of our trademarked names, service marks or copyrighted terms and
logos.
I. Contains software downloads that potentially enable diversions of
commission from other affiliates in our program.
J. Utilizes Pop-Up, Pop-Under, or automatic Redirects to link to our site.
Any method that automatically plants an affiliate cookie is strictly prohibited.
Our vendors and employees are not eligible to become Affiliates.
Resellers may not purchase products under this program and are not eligible
to become Affiliates.
If we reject your application, you are welcome to reapply to the Program at
any time. You should also note that if we accept your application and your site
is thereafter determined (at our sole discretion) to be unsuitable for the
Program, we may terminate this Agreement.
Affiliates who are terminated from the Program are forbidden to reapply at
any time in the future. Any such attempts to do so will result in commissions
not being issued.
2. Links on Your Site
We 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 our site, to establish and maintain lists, links and
search boxes as detailed below:
This agreement does not include any other type of product or products located
in any other part of our site or any products not fulfilled directly by
PartySoda.com. You may display on your site a short description, review, or
other reference for product promotion. You will be responsible for the content,
style and placement of these references. Suggested graphics and descriptive
texts may be made available to you and you are encouraged to use them. You will
provide a special link (as defined below) to the PartySoda.com website. Each
link will connect directly to PartySoda.com's homepage using a special link
format that we give you (a "special" link).
The content and embedded images from the PartySoda.com website may be used
for reference purposes only. Partners are not allowed to spider the
PartySoda.com site to obtain our content and contextual images. Any affiliate
who attempts to do so will be revoked from the program and any outstanding
commissions will also be forfeited. Only materials provided via our affiliate
services area may be used for product promotion. The primary product image from
the PartySoda.com website may be used as well.
General Link to PartySoda.com Homepage: You may provide a general link on
your site to our homepage. We will provide you with guidelines and graphical
artwork to use in linking to the PartySoda.com homepage.
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 Special Links, link
formats, technical specifications, guidelines or graphical artwork referenced
above, or with respect to the PartySoda.com domain name.
3. Order Processing
We will process Product orders placed by customers who follow Special Links from
your site to the PartySoda.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. 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
using Special Links from your site to our site and will send you reports
summarizing sales activity. The form, content and frequency of the reports may
vary from time to time at our discretion. To permit accurate tracking, reporting
and fee accrual, you must ensure that the Special Links between your site and
our 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 our site are not properly formatted.
4. Referral Fees
For a product sale to generate a referral fee, the customer must follow a
Special Link (in the format specified by us) from your site to the PartySoda.com
site; purchase the Product on the PartySoda.com site using our automated
ordering system; accept delivery of the Product at the delivery destination and
remit full payment to PartySoda.com. We will pay referral fees during the life
of the customer's session, unless the customer comes to the PartySoda.com site
through another affiliate or link tracked directly by PartySoda.com marketing,
advertising, or search engine optimization. Further, we will not pay referral
fees on any Products purchased from any site operated by us other than the
PartySoda.com site. In addition, Products listed in the PartySoda.com catalog or
in search results as "out of print", "hard to find",
"special order" (or other words to similar effect indicating that a
product is not readily available for delivery) are not eligible for any referral
fees. Gift certificates are not eligible to earn referral fees.
The Program is intended for commercial use only and you may not purchase
Products through the Program for your own use. In addition to any other rights
we may have, such purchases may result (at our sole discretion) in (a) the
withholding of referral fees and/or (b) the termination of this Agreement. You
acknowledge that these remedies, while not exclusive, are a reasonable
assessment of the damage we will suffer as a result of a breach of this clause
by you. Products that are entitled to earn referral fees under the rules set
forth above are hereinafter referred to as "Qualifying Products".
"Session" shall mean the period beginning upon a visitor's entry to
our site and ending 30 minutes from the last recorded customer interaction with
the website.
Any Session in progress will automatically terminate upon the expiration or
termination of this Agreement.
Note regarding Net Sales - Net Sales include only "shipped" sales.
Orders entered for which the product does not ship are not reported as sales.
Note regarding "Cookies": To keep track of the Session, we use a
small text file called a "cookie" that is placed on the hard drive of
the visitor's computer. Some web browsers permit users to elect not to receive
cookies. Only visitors who accept cookies can be tracked for referral fees. You
understand that no referral fee can be paid for any purchase made by a visitor
who does not accept "cookies" or who has deleted our
"cookies" during a session.
5. Fee Payment
We will pay you referral fees on a quarterly basis. Approximately 30 days
following the end of each calendar quarter, we will send you payment for the
referral fees earned on Qualifying Products that were dispatched during that
quarter, less any taxes that we are required by law to withhold. If a Product
that generated a referral fee is returned by the customer, we will deduct the
corresponding fee from your next payment. If there is no subsequent payment, we
will send you an invoice for the fee.
A. We will pay you 5% of all product sales.
6. Policies and Pricing
For the avoidance of doubt, customers who buy Products through this Program will
be customers of PartySoda.com. Accordingly, all PartySoda.com rules, policies
and operating procedures concerning customer orders, customer service and
Product sales will apply to those customers. Such policies and operating
procedures may be changed at any time. For example, PartySoda.com will determine
the prices to be charged for Products sold under this Program in accordance with
its own pricing policies. Product prices and availability may vary from time to
time. Because price changes may affect Products that you already have listed on
your site, you must not include price information in your Product descriptions.
PartySoda.com will use commercially reasonable efforts to present accurate
information, but we cannot guarantee the availability or price of any particular
Product.
7. Identifying Yourself as an Affiliate
We will make available to you a small graphic image that identifies your site as
a Program participant. You must display this logo or the phrase "In
association with PartySoda.com" somewhere on your site. We may modify the
graphic image from time to time. In addition, we encourage (but do not require)
you to include a link to the PartySoda.com homepage at http://www.PartySoda.com.
You may not make any press release with respect to this Agreement or your
participation in the Program without our prior written consent, which may be
given or withheld in our sole discretion. You may e-mail Affiliates@PartySoda.com
if you wish to get written consent.
8. Limited License
We grant you a nonexclusive, revocable right to use the materials described in
Section 2 and such other 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 modify the icon or any of our images in
any way. We reserve all of our rights in the icon, any other images, our trade
names and trademarks, and all other intellectual property rights. We may revoke
your license at any time by giving you written notice.
9. 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: the technical operation of your site and all related
equipment; creating and posting Product descriptions on your site and linking
those descriptions to the PartySoda.com catalogue using Special Links and
special link formats provided by us; the accuracy and appropriateness of
materials posted on your site (including, among other things, all
Product-related materials) ensuring that materials posted on your site do not
breach or infringe upon the rights of any third party (including, for example,
copyrights, trademarks, privacy or other personal or proprietary rights;
ensuring that materials posted on your site are not defamatory or illegal. We
disclaim all liability for these matters. Further, you will indemnify and hold
us harmless from all claims, damages and expenses (including, without
limitation, legal fees) relating to the development, operation, maintenance and
contents of your site.
10. 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. You are only eligible to earn referral fees
on sales of Qualifying Products occurring during the term and fees earned up to
the date of termination will remain payable only if the related orders are not
cancelled or returned. We may withhold your final payment for a reasonable time
to ensure that the correct amount is paid. Upon termination of this Agreement,
you must promptly return to us, or at our request, destroy any and all of our
intellectual or proprietary property, information and/or materials in your
possession and, subject to receiving written consent to the contrary from us,
remove all hypertext links to our site from your site.
11. Modification
We may modify any of the terms and conditions contained in this Agreement, at
any time and at our sole discretion, by posting a change notice or a new
agreement on our site. Modifications may include, for example, changes in the
scope of available referral fees, 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 OUR SITE WILL CONSTITUTE
BINDING ACCEPTANCE OF THE CHANGE.
12. 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 or our respective affiliates. You
will have no authority to make or accept any offers or representations,
guarantees or warranties on our or our affiliates' behalf, including with
respect to our or our affiliates Products or services. You will not make any
statement or representation, whether on your site or otherwise, that you are
connected or affiliated with us or our site, other than for the purpose of
referring users to our site as defined under this Agreement, or that otherwise
reasonably would contradict anything in this Section.
13. Limitation of Liability
Neither we, nor any of our affiliates, will 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, or any of our
affiliates, have been advised of the possibility of such damages. Further, to
the fullest extent permitted by law, our and our affiliates' collective
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
at the time the act or omission giving rise to the liability occurred.
14. Disclaimers
To the fullest extent permitted by law, neither we nor any of our affiliates
makes any 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), and
the same are hereby excluded. In addition, neither we, nor any of our
affiliates, make any representation that the operation of our site will be
uninterrupted or error-free and none of us will be liable for the consequences
of any interruptions or errors.
15. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS
AND CONDITIONS. YOU UNDERSTAND THAT WE OR ANY OF OUR AFFILIATES 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.
16. Miscellaneous
This Agreement will be governed by the laws of the State of New Hampshire,
without reference to rules governing choice of laws. 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.
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 our site or
the links will be uninterrupted or error-free, or will not be re-routed or
"black holed." As a result, we might temporarily be unable to capture
information regarding Links. We will not be liable for the consequences of any
such interruptions or errors. The Program is intended for commercial use only.
This Agreement will be governed by the laws of the state of New Hampshire
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 New
Hampshire 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 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.
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Copyright © 2008 Private Label Specialties,
Ltd.