Hugger Mugger Affiliate Program Agreement
This affiliate program agreement (this "Agreement") is entered into between Hugger Mugger, LLC ("Hugger Mugger") and you, the affiliate (hereinafter referred to as "you" or as the "Affiliate") with respect to the Hugger Mugger Affiliate Program (the "Program"). The purpose of the Program is to allow pre-approved third-party websites to use certain content from websites owned and operated by Hugger Mugger (the " Hugger Mugger Sites").
You acknowledge that you may participate in the Program only under the terms and conditions set forth below, and it is at Hugger Mugger's sole discretion whether to accept your application for the program.
- Program Eligibility
Application To begin the enrollment process, you must submit a Program application with accurate information about you and your studio. Upon receipt of your application, we will thoroughly review your application and notify you whether we have accepted or rejected your application. Upon our acceptance of your application, you become an Affiliate eligible to participate in the Program. Should we reject your application, you may reapply at any time. We reserve the right to reject applications at our sole discretion or any reason or no reason at all.
Residency Requirement We only accept applicants who reside in or conduct legal business in the United States of America and whose website(s) primarily services or targets North American residents. For purposes of this Agreement, you must have a valid United States social security number or taxpayer identification number, or other documentation as required by the IRS. Should we accept your application, you must continue to satisfy this residency requirement throughout the term of this Agreement, therefore you may not engage in any promotion, sales or marketing activity related to the subject matter of this Agreement in territories outside the United States of America or Canada while you are an Affiliate.
- Website Eligibility
Application received from persons or entities with websites that include content determined at Hugger Mugger's sole dicretion to be unsuitable for the Progrram will be automatically rejected. Unsuitable content includes, but it no limited to those that include the folowing:
Promotes adult-oriented, sexually explicit or otherwise inappropriate materials
Promotes violence or behavior that is harmful, threatening, harassing or racially, ethnically or otherwise objectionable
Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
Promotes illegal activities
Violates intellectual property of any party
Except as permitted hereunder, use of any trademarks, trade names, services marks, service names, logos or distinct brand elements of Hugger Mugger or any of its affiliated entities (the " Hugger Mugger Marks"), or any variations thereof, in any manner whatsoever.
Personal home pages or any form of a personal website are not eligible for the Program.
Your website must remain fully functional at all times. Hugger Mugger may reject applications from, or terminate agreements with, persons or entities with websites that are not "live", "under construction" or a similar status.
- Should we accept your application, you must maintain your website eligibility throughout the term of this Agreement. Hugger Mugger reserves the right to audit your website(s) from time to time in order to determine the continuing eligibility of your website. If we determine that your website is no longer eligible, we may terminate this Agreement effective immediately.
Prohibition of Adware/Spyware/Parasite wareIf we believe that you use adware, spyware, parasite ware or other similar types of techniques to drive Internet traffic, we will automatically reject your application. Should we accept your application and subsequently discover your violation of this prohibition, we will immediately terminate this Agreement, hence your participation in the Program, and you will forfeit all commission, regardless of whether earned or unpaid as of the date of such discovery.
Promotional Content Provided by Hugger Mugger As an Affiliate, we will make available to you a variety of content, ad units, text links, as well as any other content Hugger Mugger may provide you from time to time at its sole discretion (all of which shall be reffered to individually and collectivty here in as "Promotional Content"), which subject to this Agreement, you may display as often and in as many areas on your website as you desire. Our Promotional Content will serve to identify you as member of the Program and will establish a link from your website to ours. The privilege to use our Promotional Content terminates immediately upon notice of termination of this Agreement by us, upon termination by you, upon your violation of any of Section I(B)-(D), or upon your breanch of any part of this Agreement. Upon termination of this Agreement, you shall remove all Promotional Content from your website within twenty-four(24) hours and cease use of any and all Promotional Content.
Agreements Regarding Promotional Content In using our Promotional Content, you agree you will fully cooperate with us in the use and maintenance of our Promotional Content. You agree you will display on your website only those graphic or textual images pertaining to our Promotional Content that are provided 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. All Affiliates shall display such graphic and/or textual images prominently in relevant sections of their website. Promotional Content 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. Promotional Content connecting users of your website to the Hugger Mugger Sites will in no way alter the look, feel, or functionality of any of our respective sites. You agree not to reverse engineer, disassemble or decompile any portion of our Promotional Content provided to you hereunder.
Tracking Technology Certain pieces of the Promotional Content will include tracking technology which will enable Hugger Mugger to track a user's activity with respect to the Promotional Content on your website. You shall ensure that the Promotional Content on your website will include the tracking technology in the format provided to you by Hugger Mugger. You shall not edit or otherwise alter the tracking technology. Furthermore, you acknowledge and understand that such tracking technology shall be used to calculate fees, if any, payable to you under this Agreement. Hugger Mugger shall not be obligated to pay any amounts for any activity in which the associated tracking technology was omitted or modified.
Hugger Mugger License Subject to the terms of this Agreement, Hugger Mugger hereby grants you a non-exclusive, non-transferable, non-sub licensable, revocable, limited right to use and display any data, images, text, Promotional Content, or other information we provide to you (all such information hereinafter referred to collectively as the "Hugger Mugger Content") on your website solely in connection with this Agreement.
Hugger Mugger Marks Your use of the Hugger Mugger Marks shall be in accordance with our prevailing trademark brand usage guidelines, and incorporated by reference herein. We retain the right to update our trademark brand usage guidelines at anytime upon notice to you by direct communication or display on the Hugger Mugger Sites. Any use of the Hugger Mugger Marks shall inure exclusively to the benefit of Hugger Mugger. Any rights not specifically granted with respect to the Hugger Mugger Marks are hereby expressly reserved by Hugger Mugger. You shall not purchase or bid on keywords that are or includes Hugger Mugger Marks from any third party advertising program.
Ownership of Intellectual Property You acknowledge and agree that as between Hugger Mugger and you: (i) Hugger Mugger owns all right, title and interest in and to the Promotional Content, Hugger Mugger Content and Hugger Mugger Marks; and (ii) nothing in this Agreement shall confer in you or any of your affiliates any right of ownership in the foregoing.
Updated Account Information You agree to provide us with updated information should you change your email address, phone number, postal address, US tax filing status, websites participating in the Program, your promotional methods, or any other relevant information.
- Email Updates You agree to receive email updates regarding the Program
Responsibilities for Your Website and Marketing Materials
You will be solely responsible for the development, operation, and maintenance of your website and all materials that appear on your website and for the creation, reproduction and use of any and all marketing materials used by you hereunder, such as, but not limited to:
The technical operation of your website and all related equipment.
The accuracy and appropriateness of materials posted on your website and all materials used offline.
Ensuring that the materials posted on your website 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.
Creation, reproduction and use of any and all marketing materials used by you or posted on your website.
Ensuring that materials posted on your website are not libelous or otherwise illegal.
Hugger Mugger disclaims any and all liability for the matters stated in the foregoing Sections. Furthermore, you will indemnify and hold harmless Hugger Mugger and our respective parent companies, affiliates, subsidiaries, directors, officers, employees, agents, licensees successor and assigns the ("Indemnities")") from and against any and all claims, damages, expenses, costs (including, without limitation, attorneys' fees) and liabilities relating to the development, operation, maintenance, and content of your website and your marketing materials.
You shall not frame, or permit the framing, of any page within the Hugger Mugger Sites. Your website shall not in any way resemble the look and feel of the Hugger Mugger Sites, nor shall you create the impression that your website is part of Hugger Mugger's network of sites. You shall not use any of the Hugger Mugger Marks, or any variations or misspellings thereof, in your domain name(s), company or business names or in any other way in connection with the products or services you provide.
- HUGGER MUGGER Content Integrity
You shall use Hugger Mugger Content only in accordance with the terms of this Agreement and only in a lawful manner.
You shall not use Hugger Mugger Content in a manner that is misleading, defamatory, libelous, and obscene or that is otherwise objectionable as determined in Hugger Mugger's sole discretion.
You shall not use Hugger Mugger Content in a way that infringes upon, derogates, dilutes or otherwise impairs any rights of Hugger Mugger.
You shall not use Hugger Mugger Content as part of a name, or in connection with, any product or service offered by a company other than Hugger Mugger
You shall not modify or alter any Hugger Mugger Content that consists of a graphic image.
You shall not modify any Hugger Mugger Content, including, but not limited to, branding, bylines or other editorial elements.
You shall not interrupt the presentation of any Hugger Mugger Content by placing advertisements or other content within the body of Hugger Mugger Content.
You shall not use or display Hugger Mugger Content alone or in combination with third party content on your website in such a way as to promote or drive traffic or leads to other retail, comparison shopping or e-commerce sites other than Hugger Mugger's website.
You shall not use or display Hugger Mugger Content alone or in combination with third party content on your website in such a way as to suggest that Hugger Mugger owns, endorses or sponsors content other than the Hugger Mugger Content.
You will promptly delete any Hugger Mugger Content that is no longer displayed on the Hugger Mugger website or that we notify you is no longer available for your use.
No Publicity or Representations Except as provided for in this Agreement, you shall not, without the prior express written content of Hugger Mugger: (i) make any statements that you are doing business with Hugger Mugger or use any Hugger Mugger Marks in connection with such statements; or (ii) make any representations and warranties with respect to Hugger Mugger, the Hugger Mugger Sites, Hugger Mugger Content or any other products or services offered by Hugger Mugger.
Promotional Activities You represent and warrant that all promotional means used by you will not be misleading and will not contain objectionable content, including, but not limited to, content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal and/or promoting illegal goods, services or activities. You must seek prior approval from Hugger Mugger for all of your promotional activities related to the Program.
Third-Party Search Solely in connection with promoting the Program, you may bid on search terms available from third-party websites, search engines or other directory or referral services (e.g. Google, Yahoo!) provided that: (i) your search terms, listing titles, descriptions, and the content on your website(s) do not violate the trademark or other rights of Hugger Mugger or any other third party; and (ii) all search results link directly to a page within the Hugger Mugger Sites or to a page within your website that is primarily dedicated to promoting Hugger Mugger. Should you bid on a term that is the trademark of a third-party, you must either: (i) prominently identify the appropriate trademark owner on your website in a manner that does not create a likelihood of consumer confusion; or (ii) use the term in a generic or descriptive manner.
Anti-Spam Policy You represent and warrant that you do not engage in the practice of sending unsolicited email messages and you hereby agree to the following conditions: Your failure to comply with any of the following conditions will result in immediate termination of this Agreement and will render you ineligible for any payments that may otherwise be due you.
Hugger Mugger's Obligations Hugger Mugger will be responsible for providing all information necessary to all you to make appropriate Hugger Mugger Content and Promotional Content from your website to the Hugger Mugger Sites.
Commission Schedule Your commission from revenues generated from your website will be based on the commission schedule as established by Hugger Mugger, which may be modified from time at Hugger Mugger's sole discretion. The current commission schedule is 10% per eligible purchase (as described below) from your website to a participating Hugger Mugger merchant site.
Payment Hugger Mugger, LLC. will be responsible for drafting and sending your commission checks. Commissions will be paid on a monthly basis. Approximately fifteen (15) days following the end of each calendar month. However, if the commissions payable to you for any calendar month are less than Fifty Dollars ($50.00), we will hold those commissions until the total amount due is at least Fifty Dollars ($50.00) or until this Agreement is terminated, whichever occurs first. HUGGER MUGGER MAKES NO REPRESENTATIONS OR WARRANTIES TO YOU ABOUT THE AMOUNT OF COMMISSIONS YOU MAY EARN OR RECEIVE UNDER THE PROGRAM.
Eligible Purchases The following purchases will be excluded from the calculation of your commission payment:
Reseller purchases / anyone purchasing off of a wholesale account
Relationship of the Parties Hugger Mugger and you 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 shall not in any manner misrepresent or embellish the relationship between Hugger Mugger and you, or express or imply any relationship or affiliation between Hugger Mugger, you or any other person or entity. You will have no authority to make or accept any offers or representations on Hugger Mugger behalf. You will not make any statement, whether on your website or otherwise, that will reasonably contradict anything in this Section.
Press Releases Notwithstanding anything to the contrary, you shall not issue any press release or public announcement with respect to this Agreement, your participation in the Program or your status as an Affiliate. Any violation of this Section shall be considered a material breach of this Agreement and may result in the immediate termination of your participation in the Program.
- Term and Termination
Termination Either party may terminate this Agreement at any time, for any reason or no reason at all, by giving the other party written notice of termination.
Effect of Termination Upon termination of this Agreement, you shall immediately cease all activity as an Affiliate and cease use of all materials from us, including, but not limited to Promotional Content, Hugger Mugger Marks or Hugger Mugger Content. The following sections shall survive any termination of this Agreement III(C), IV(C), IX(C), XII, XIII, XIV and XVI.
Tax Reporting Requirement You must provide Hugger Mugger, with a completed W-9 Federal Tax Form before any checks will be issued to you. A 1099 will be issued to you only if you reach the maximum payout allowed under Federal tax regulations (currently $600, as of May 1, 2005). Hugger Mugger will provide you with the necessary form. You are responsible for the reporting of all income and payment of all taxes, charges and penalties associated with any amount received by you under the Program. You understand that we shall have no responsibilities to provide you with or complete any tax form(s) that may be required of you hereunder and that you will not be eligible to collect commissions hereunder until Hugger Mugger is in receipt of your proper tax form(s).
Modifications 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 HUGGER MUGGER Sites. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOU'RE CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A MODIFICATION NOTICE OR NEW AGREEMENT ON THE HUGGER MUGGER SITES WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE(S).
Representation and Warranties
Each Party Each party to this Agreement represents and warrants to the other party that it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required hereunder.
Affiliate You represent and warrant that:
You will comply with all applicable laws, regulations and guidelines in participating in the Program.
You will comply with our current brand feature usage guidelines as provided by us from time to time.
You are above the age of eighteen (18) as of the date your submitted your Program application.
You will not infringe any third party intellectual property rights.
You understand and agree to abide by all terms and conditions of this Agreement.
Indemnification You agree to indemnify and hold harmless the Indemnities from and against any and all claims, damages, expenses, costs (including, without limitation, reasonable attorneys' fees) and liabilities brought or asserted against the Indemnities related to, arising out of or resulting from your breach of any of your obligations, covenants, representations or warranties made under this Agreement or any violation of any right, including, but not limited to, any intellectual property right, right of publicity or privacy of the Indemnities or any other party. We shall promptly notify you of any such claim and you shall, at your own expense, indemnify, defend and hold harmless the Indemnities from and against all costs of defending the claim, including reasonable legal fees. You shall not have the right to enter into any settlement that limits Hugger Mugger, LLC's rights hereunder without our prior written consent.
Warranty Disclaimer; Limitation of Liability
Warranty Disclaimer YOU ACKNOWLEDGE THAT ALL MATERIALS OR INFORMATION THAT ARE MADE AVAILABLE TO YOU BY US UNDER THIS AGREEMENT ARE MADE AVAILABLE ON AN "AS IS" BASIS, WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND YOUR USE THEREOF IS AT YOUR OWN RISK. HUGGER MUGGER SPECIFICALLY DISCLAIMS ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HUGGER MUGGER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OF WARRANTY REGARDING THE ACCURACY OR RELIABILITY OF THE HUGGER MUGGER CONTENT.
Limitation of LiabilityHUGGER MUGGER AND OUR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEE, AGENTS, LICENSEES, SUCCESSORS AND ASSIGNS, AND HUGGER MUGGERWILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, GOODWILL OR DATA RELATED TO, RESULTING FROM OR ARISING IN CONNECTION WITH THIS AGREEMENT, THE PROGRAM, THE PROMOTIONAL CONTENT, THE HUGGER MUGGER CONTENT, THE HUGGER MUGGER MARKS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSION PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT FOR THE THREE (3) MONTHS PRIOR TO THE DATE SUCH CLAIM AROSE.
Network Failure HUGGER MUGGER WILL NOT BE LIABLE TO YOU FOR ANY INTERNET OR TELECOMMUNICATIONS FAILURE, COMPUTER VIRUS OR THIRD-PARTY INTERFERENCE BEYOND OUR REASONABLE CONTROL THAT MAY INTERRUPT OR DELAY ACCESS TO ANY INTERNET WEBSITE OR CAUSE OTHER PROBLEMS OR LOSSES.
Independent Investigation YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME SOLICIT (DIRECTLY OR INDIRECTLY) CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEBSITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEBSITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM OFFERED HEREUNDER AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
Governing Law This Agreement will be governed by the laws of the State of California, without regard to the principles of conflicts of law. Any action relating to this Agreement shall be brought in the federal or state courts located in San Francisco, California and you hereby consent to the personal jurisdiction of such courts.
Assignment You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to the foregoing, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns. Any assignment in violation of this section shall be null and void.
Waiver 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.
Severability If any provision of this Agreement is determined by a court or other authority having competent jurisdiction to be invalid, illegal or otherwise unenforceable, that provision shall be enforce to the maximum extent allowed so as to effect the intent of the parties and all other provisions of this Agreement shall remain in full force and effect and shall not thereby be affected or impaired.
Fair Reporting Nothing contained in this Agreement shall restrict or limit Hugger Mugger, LLC's ability to make editorial statements or to fairly report on issues regarding you or any of your affiliates on any news related property owned or operated by Hugger Mugger or any of our affiliates.