THIS AGREEMENT and the documents described in Section 18 below contain
the complete terms and conditions that apply to an individual or entity's
participation in the Adorama Affiliate Program (the "Program").
This Agreement is made and entered into by and between Adorama Camera,
Inc., a New York corporation ("Adorama"), and you. As used in
this Agreement, "we/us/our" means Adorama and "you"
means the applicant specified in the Application, as that term is defined
below. "Site" means a World Wide Web site. “Manager”
means the MyAffiliateProgram Corporation, which has been retained by us
to provide affiliate marketing services for the Adorama Affiliate Program.
ENROLLMENT IN THE PROGRAM (New Members)
To begin the enrollment process, you will need to submit a completed
Program application form which can be found at https://www.myaffiliateprogram.com/u/adorama/signup.asp.
We will evaluate your Application in good faith and will notify
you of your acceptance or rejection. We may reject your Application
for any reason whatsoever, including, but not limited to our determination
(in our sole discretion) that your Site is unsuitable for the Program
(“Unsuitable Site”). Unsuitable Sites include, but are
not limited to, those that: a. contain or link
to nudity or pornography or promote sexually explicit materials;
b. promote violence; c. promote
discrimination based on race, sex, religion, nationality, disability,
sexual orientation, or age; d. promote illegal
activities; e. infringe intellectual property rights
of ours, or otherwise violate the rights of any third party: f.
contain, in our sole judgment, material that is defamatory, fraudulent,
or harassing to us or any third party; or g. promote
the use of any pyramid or similar schemes.
Once we accept your Application, you will be provided with a
password protected affiliate account. If we reject your Application,
you are welcome to reapply to the Program at any time.
Existing affiliates our automatically approved and do not need
to complete the application form.
LINKS ON YOUR SITE
PRODUCT ICONS AND HOME PAGE LINKS. You may select any one or
more graphics offered through your Affiliate account ("Banners")
or ("Logos") to feature on your Site. You may change the
selection of your featured Icons at any time, without our approval.
You can display on your Site a word or words, graphic image(s),
or combination of words and images. The content, style and placement
of these words and images will be your sole responsibility and within
your sole discretion provided that you comply with the terms of
this Agreement. You must ONLY place word(s) or graphic image(s)
links on your Site utilizing the code provided. You may NOT "hard"
code image(s) on your Site. You may not modify any of our Icons,
content, tools, text, images, Links (as defined below), Adorama
Brand Features (as defined below), or search boxes (collectively
"Licensed Materials") in any way.
For each selected Icon, we will provide an electronic link to
the Adorama Site using an Affiliate URL provided by us (a "Link").
It is your sole responsibility to set up and maintain the electronic
Links connecting your Site to the appropriate page on the Adorama
Site designated for that particular Icon, and ensure that the electronic
Links are in good and working order.
You acknowledge and agree that Icons, content, tools, text, images,
Links, search boxes or any other material provided to you by us
on our behalf for inclusion on your Site may include Adorama’s
trade name, trademark, service mark and/or logo , (ii) you have
no right to alter or modify such Adorama Brand Features, (iii) you
will not use or display the Adorama Brand Features or any of the
other Licensed Materials on any Unsuitable Site, as determined in
our sole discretion, or in any manner that is defamatory, misleading,
libelous, obscene or otherwise potentially damaging to the reputation
of Adorama or the goodwill associated with the Adorama Brand Features,
and (iv) you will use the Adorama Brand Features in accordance with
any trademark usage guidelines and policies that Adorama may issue
from time to time.
ORDER PROCESSING
We will process product orders placed by customers who follow
Links from your Site to the Adorama 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 online
using Links from your site to our Site in accordance with the terms
of this Agreement (“Customers”) and will provide you
with access to reports summarizing this sales activity. The form,
content, and frequency of the reports may vary from time to time
in our discretion but will generally be available on a continuous
basis. You hereby agree not to disclose the information contained
in these reports to any third party without prior written or electronic
consent. To permit accurate tracking, reporting, and fee accrual,
you must ensure that the Links between your and our Site are properly
formatted. All HTML tags are to be generated using the special HTML
tags provided by us and are not to be altered in any manner. We
will not be responsible for tracking and reporting sales that were
not made through a Link formatted to our specifications.
REFERRAL FEES
We will pay you Referral Fees on product sales to third parties
as defined below. For a product sale to generate a Referral Fee,
a Customer must follow a Link (in the format specified by us) from
your Site to the Adorama Site, purchase one or more Products, as
defined below, using our automated ordering system, and remit full
credit card approved payment to Adorama. You will not receive a
commission for any sales initiated or completed offline (for example,
by telephone or in store). Our determination of whether a commission
is payable is final and is binding on you.
You will earn Referral Fees based on the Sale Price of Products,
according to fee schedules to be established and issued from time
to time by us, which are incorporated by reference in this Agreement,
and which we retain the absolute right to modify at any time. "Sale
Price" means the sale price on our Site for each product at
the time the product sale took place. The Sales Price shall not
include costs for shipping, handling, gift-wrapping (where and when
applicable), and taxes.
FEE AMOUNT
Referral fees earned pursuant to Section 4 are paid as a percentage
of the Sale Price of the Products sold. In our sole discretion, we may
establish other special commission rates with respect to certain promotions.
FEE SCHEDULE
We will pay you Referral Fees on a calendar month basis. All payments
shall be made in U.S. dollars. Within sixty (30) days following the
end of each calendar month you will receive a check for the Referral
Fees earned on Products that were shipped during that month, less any
taxes that we are required by law to withhold. However, if the fees
payable to you for any calendar month are less than twenty five dollars
($25), we, may withhold those fees until the total amount due is at
least twenty five dollars ($25) or (if earlier) until this Agreement
is terminated. If a Product that generated a Referral Fee is returned
or canceled, we will deduct the corresponding fee from your next monthly
payment. If there is no subsequent payment, we will send you an invoice
due in ten (10) days for the canceled Referral Fee.
POLICIES AND PRICING
All Customers who buy products through this Program will be deemed to
be the customers of Adorama. Accordingly all Adorama rules, policies,
and operating procedures (“Policies and Procedures”) concerning
customer orders, customer service, and product sales will apply to those
Customers. We may change our Policies and Procedures at any time and
for any reason.
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. Because
price changes may affect Products that you already have listed on your
Site, you may not include price information in your product descriptions
or otherwise 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.
LIMITED LICENSE/RESTRICTIONS
Adorama grants you a limited, nonexclusive, non-transferable,
non-sublicensable revocable right and license during the term to
use the Logos, Banners and words or combination of words and images
described in Section 2 and such other Icons and images for which
Adorama grants express written permission, solely for the purpose
of identifying your Site as a Program participant and to assist
in generating product sales. You may not modify any of the Licensed
Materials in any way. Adorama reserves all rights in the Licensed
Materials and all intellectual property rights therein. Subject
to the terms and conditions of this Agreement, Adorama grants you
a limited, non-exclusive, royalty-free license to use the Sales
Information, as defined below, to the extent necessary to fulfill
your obligations under this Agreement or for your internal research
purposes. Adorama may immediately revoke such licenses at any time
and for any reason upon giving you oral, written or electronic notice.
You hereby acknowledge and agree that all right, title and interest
in the Licensed Materials are exclusively owned by Adorama and/or
its licensors and that any goodwill resulting from Affiliate’s
use of such Licensed Materials shall inure to the benefit of Adorama
and shall automatically vest in Adorama upon use by Affiliate. You
hereby acknowledge and agree that Adorama shall own all right title
and interest in and to all information that is created or collected
in connection with this Agreement, including, without limitation,
(i) any contact information collected from any Adorama Customer
who enters Adorama’s Site from a link from your Site ("Affiliate
Customers") and any information regarding click-through rates,
information regarding product purchases by Affiliate Customers ("Sales
Information"), and any information regarding high-performing
adwords, keywords or any other similar advertising, search or query
words or terms, any information regarding top-converting products,
or any other non-public Adorama sales and marketing information
(“Marketing Information”). You agree not to disclose
during the term and at any time thereafter any Sales Information,
Affiliate Customer contact information, or Marketing Information
to any third party without Adorama’s prior written approval.
You agree not to use or send any email, including but not limited
to emails that you send to your customers promoting various offers
or merchants, at any time, to advertise or promote Adorama's name,
without prior written consent from us.
You may not use the Adorama name, “Adorama Camera”,
“Adorama” or any other Adorama Brand Features, or any
variation, element, derivation or adaptation thereof (including
but not limited to abbreviations, misspellings, stringing of individual
names into a single word, or any other variation which has the effect
of implying the Adorama name; “Adorama Variations”),
in any manner not expressly authorized by this Agreement.
Without limiting the generality of the foregoing, Affiliate shall
not: 1. use Adorama Brand Features or Adorama Variations
in Affiliate’s domain or sub-domain; 2. use
Adorama Brand Features or Adorama Variations (or use any type of
software download or technology or otherwise engineer Affiliate’s
web site, search engine, or Affiliate’s service) in such a
manner so as to intercept, re-direct, or divert Internet traffic
or Referral Fees to or from Adorama’s Site(s) without Adorama’s
prior written approval; and, 3. bid on or purchase
Adorama Brand Features or Adorama Variations as adwords, keywords,
or any other similar advertising, search or query words or terms,
on Google, Yahoo, or any other similar search engine service or
web site. Any violation of this section shall constitute a material
breach of the Agreement, and within twenty-four (24) hours of receipt
of notice from Adorama of such breach, Affiliate shall cease such
use of Adorama Brand Features or Adorama Variations. If Affiliate
does not so cure such breach, Adorama may immediately terminate
the Agreement, without any charge or liability, in addition to any
other rights or remedies Adorama may have under the Agreement, and
Adorama reserves the right to bring a trademark infringement action
against Affiliate, as well as any other rights or remedies it may
have at law or in equity.
You agree not to: (i) cache any part of or all of the Licensed
Materials, (ii) offer any unauthorized incentives to end users touse
the Links, and (iii) offer or make available to end users coupons
or promotions that have expired or have not been approved by us.
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, including, but not limited to the technical operation
of your Site and all related equipment; posting Icons on your Site
and linking those Icons to our Site; the accuracy and appropriateness
of materials posted on your Site (including but not limited to all
product-related materials); ensuring that materials posted on your
Site do not violate or infringe upon the rights of any third party
(including, but not limited to, copyrights, trademarks, privacy,
or other personal or proprietary rights) ensuring that materials
posted on your Site are not libelous, violate any provision of this
Agreement or are otherwise illegal or unlawful.
the accuracy and legality of all product effectiveness claims:
you may not make specific claims regarding the effectiveness of
any product. without limiting the generality of the foregoing, 1.
you shall not make any representations, warranties or guarantees
to anyone with respect to the specifications, features or capabilities
of the products that are inconsistent with the information distributed
or provided by adorama, 2. you shall not make any
false or misleading representations with regard to adorama or the
products, and 3. you shall not post, publish or
use any misleading or deceptive advertising materials regarding
adorama or the products. if you violate the foregoing or otherwise
make unsubstantiated product claims with respect to products we
sell, your membership in the adorama affiliate program may be terminated
immediately upon notice.
We disclaim all liability for the matters described in this Section
9. Further, you will indemnify and hold us harmless from all claims,
damages, and expenses (including, without limitation, attorneys'
fees) relating to the content development, operation, maintenance,
and contents of your Site or any breach of any representations,
warranties or covenants made by you in this Agreement.
TERM/TERMINATION
The term of this Agreement will begin upon our acceptance of your Program
Application and will end when terminated by either party in accordance
with the terms of this Agreement. Either you or Adorama may terminate
this Agreement at any time and for any reason, with or without cause,
by giving the other party written or electronic notice of termination.
You are only eligible to earn Referral Fees on sales occurring during
the term of this Agreement, and 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. Upon termination of this Agreement, 1.
all licenses hereunder shall terminate, 2. you shall
immediately remove any Links, Icons, search boxes, or any other Licensed
Materials from your Site and 3. sections 8(2), 9(3),
10, 13, 14, 15 and 19, as well as any other provisions which by their
nature are reasonably expected to survive the termination of this Agreement,
shall survive such termination.
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 our affiliate gateway site. modifications may include,
but are not limited to, changes in referral fees, fee schedules, payment
procedures, and policies and procedures. 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 affiliate gateway site will constitute binding
acceptance of the change.
RELATIONSHIP OF PARTIES
You and Adorama 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.
LIMITATION OF LIABILITY
Adorama will not be liable to you or any other person or entity for
any special, indirect, consequential or exemplary damages (including,
without limitation any loss of revenue, profits, or data) arising in
connection with this agreement or the program, however caused, and under
whatever cause of action or theory of liability brought (including,
without limitation, under any contract, negligence or other tort theory
of liability, 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. all claims made hereunder by
you against us shall be made within ninety (90) days of the act or omission,
which forms the basis of such claims.
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 password protected affiliate account, Adorama’s Site or
any other Site sponsored by us in connection with this Agreement will
be uninterrupted or error-free, and we will not be liable for the consequences
of any interruptions or errors or termination of any services, products
or this Agreement.
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 explicitly
set forth in this agreement.
IDENTIFICATION OF AFFILIATES
We may identify you or your Site as a participant in the Program without
providing you prior notice or obtaining your specific written consent.
Such identification may be oral, written, or electronic, and may include,
but is not limited to, public announcements, promotional materials,
internal and external reports, and public filings.
NON-ASSIGNMENT AND SUCCESSORS
You may not assign or transfer this Agreement, by operation of law or
otherwise, without our prior written consent. Any assignment or transfer
in violation of the foregoing shall be null and void. 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.
SCOPE OF AGREEMENT
This Agreement, and the Fee Schedules, constitutes the entire agreement
and understanding between the parties hereto with respect to the subject
matter hereof and supersedes all prior or contemporaneous written or
oral agreements or representations between the parties.
MISCELLANEOUS
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, NY and you irrevocably
consent to the jurisdiction and venue of such courts. 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. If for
any reason a court of competent jurisdiction finds any provision
of this Agreement, or portion thereof, to be unenforceable, that
provision of the Agreement will be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the remainder
of this Agreement shall continue in full force and effect. You shall
not make any public announcement or issue any press release concerning
the Agreement or the transactions contemplated hereby, without our
prior written consent. We shall not be liable hereunder by reason
of any failure or delay in the performance of our obligations on
account of strikes, shortages, riots, insurrection, fires, flood,
storm, explosions, earthquakes, Internet outages, acts of God, acts
of war, acts of terrorism, governmental action, or any other cause
that is beyond our reasonable control.
As used herein, certain capitalized words (or any variation thereof)
shall have the meaning as herein provided. Any conflict between
said capitalized words and any other meaning shall be resolved as
herein provided. Unless otherwise stated above, all notices and
other communications required or permitted hereunder shall be in
writing and shall be delivered personally or transmitted by email
to Adorama Inc. at affiliates@adorama.com,
or by Facsimile to (212) 741-0401 or by United States certified
or registered mail, return receipt requested, to: Adorama
Inc., Web Affiliates, 42 West 18th St. NY, NY 10011 or
if to you at the email address designated on your Application.
If the person entering into this Agreement is acting on behalf
of his or her company or organization, such person hereby represents
to Adorama that he or she has all requisite power and authority
to enter into this Agreement on behalf of such company or organization,
that this Agreement has been duly authorized by such company or
organization and that this Agreement will constitute a legal, valid,
an binding obligation of such company or organization. Such person
hereby agrees to indemnify and hold harmless Adorama from any and
all claims, damages and expense (including without limitation attorney’s
fees) arising from any breach of this section.
