BnBFinder Affiliate Marketing Agreement
This Marketing Agreement contains the complete terms and conditions that apply to you as an Affiliate in the Affiliate Program of BnBFinder and the establishment of links from your web site to our web site.
By submitting an application to join BnBFinder Affiliate Program, you are confirming that you have read this Marketing Agreement and agreed to be bound by its terms and conditions.
Commission rates will be paid to Affiliates based on the sales originating through the Affiliate Site. Sales generated through the Affiliate link entitle the Affiliate to earn a cash commission based on the following structure:
5% of "Net Sales" - total dollars paid to BnBFinder for gift certificates minus shipping, handling, gift wrapping and similar charges, amounts due to credit card fraud and bad debt, and credits for returned goods.
When the total commissions due to you exceed fifty dollars ($50), we will send a commission check for the applicable commission. Commission checks and statements of activity will be sent approximately thirty (30) days after the end of each month.
Promotion of Our Affiliate Relationship
If you qualify and agree to participate as an Affiliate Site, we will make available to you a variety of graphic and textual links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions hereof, you shall display prominently throughout your site as you see fit and with our consent. The Links will serve to identify your site as a member of the BnBFinder Affiliate Program and will establish a link from your site to ours.
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 on your site only those graphic or textual images (indicating a Link) provided by us, or approved 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. Any information with respect to us that is going to be displayed on your site must be provided by us or approved by us in writing in advance of any display. Affiliates are not permitted to establish any Links to us in any community, forum, chat room or electronic bulletin board. Affiliate program code cannot be used for spamming via email messages or newsgroup postings. Any affiliate doing this will be eliminated from the program. 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 the pertinent area of our site will in no way alter the look, feel, or functionality of our site. We are not responsible for missing or lost revenue/sales in the case where the Affiliate alters the Link in any way. Affiliates may establish a Link only on URL's, which have been approved by BnBFinder in the application process.
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; 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 and responsibility for such matters.
We have the right in our sole discretion to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement. If you are not in compliance we may terminate this Agreement immediately.
We 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 every order placed by a customer following a special Link from your site, for tracking the volume and amount of sales generated by your site, and for providing information regarding sales statistics. We will be responsible for order entry, payment processing, shipping, cancellations, returns, and related customer service. Any determination made by BnBFinder regarding the foregoing shall be binding absent manifest error.
Policies and Pricing
Customers who buy gift certificates through the Affiliate Network will be deemed to be our customers. Accordingly, all of our rules, policies, and operating procedures concerning customer orders and customer service will apply to those customers. We may change our policies and operating procedures at any time.
Emails and Publicity
You shall not create, publish, distribute, permit, or transmit any written material or electronic communications that makes reference to us without first submitting such material to us and receiving our written consent, which shall not be unreasonably withheld.
Licenses and Use of the BnBFinder Logos and Trademarks
a. WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS, TO USE THE BNBFINDER TRADEMARK AND LOGO AND SIMILAR IDENTIFYING MATERIAL RELATING TO US (BUT ONLY IN THE FORM(S) THAT THEY ARE PROVIDED BY US) (COLLECTIVELY, THE "LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF SELLING BNBFINDER GIFT CERTIFICATES ON YOUR SITE FOR BNBFINDER. YOU MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS TO THE EXTENT THAT YOU ARE A MEMBER IN GOOD STANDING OF THE BNBFINDER AFFILIATE PROGRAM.
b. You shall not make any specific use of any Licensed Materials for purposes other than selling BnBFinder gift certificates, without first submitting a sample to us and obtaining the prior written consent, which consent shall not be unreasonably withheld. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light. We reserve all of our rights in the Licensed Materials and of our other proprietary rights. We may revoke your license at any time, by giving you written notice. If not revoked, this license shall terminate upon expiration or termination of this Agreement.
Term of the Agreement
The term of this Agreement will begin upon our acceptance of your Affiliate 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 commission on sales occurring during the term, and commissions earned through the date of termination will remain payable only if the related BnBFinder gift certificate orders are not cancelled or returned. We may withhold your final payment for a reasonable time to ensure that no overpayment is made.
We may modify any of the terms and conditions contained in this Agreement at any time in our sole discretion. 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 in the scope of available commissions, commission schedules, payment procedures, and Affiliate Program rules. If any modification is unacceptable to you, your only recourse 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 binding acceptance of the change.
We make no express or implied warranties or representations with respect to the Affiliate Program or any BnBFinder properties (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.
Relationship of Parties
You and BnBFinder 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 in contradiction of anything in this Section.
Representations and Warranties
You hereby represent and warrant to us as follows:
a. 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.
b. 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
c. 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.
d. During the term of the Agreement, you will not include in your site content that is, in our opinion, unlawful, harmful, threatening, defamatory, obscene, harassing, racially, ethically, or otherwise objectionable.
e. You are at least eighteen (18) years of age.
f. Your Affiliate site is operated within the confines of the United States of America.
Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE 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 AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
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 (i) any claim that our use of the Affiliate 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 your site, including, without limitation, development, operation, maintenance and content therein not attributable to us.
Each of the parties agree that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party not having any obligation of confidentiality to the discloser hereunder. Notwithstanding the foregoing, each party is hereby authorized to deliver the copy of any such information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (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 Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
YOUR APPLICATION SUBMISSION ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER RELATIONSHIPS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT. WE MAY ALSO SOLICIT CUSTOMER RELATIONSHIPS WITH ENTITIES THAT OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE BNBFINDER AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
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 the federal or state courts located in New York 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 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 a provision or any other provision of this Agreement.