HappyMothers.com Affiliate Agreement
Please read this Affiliate Program Agreement (the "Agreement") carefully
before submitting your application ("Application") for participation in the
HappyMothers.com Affiliate Program (the "Affiliate Program"). This agreement is a
binding contract between the individual submitting the Application or the entity
on whose behalf the Application is being submitted ("you" and "your") and The Omaha Group ("HappyMothers.com"). By submitting the Application, you
hereby accept and agree to all of the terms and conditions set forth in this
Agreement. The Agreement shall be effective only upon HappyMothers.com's
acceptance of your Application, and your participation as, an affiliate in the
HappyMothers.com Affiliate Program. By submitting an enrollment Application to
HappyMothers.com, you certify that you have read and agree to be bound by the
terms and conditions of this Agreement.
RECITALS
WHEREAS, HappyMothers.com has established an Affiliate Program for the purpose
of (i) allowing affiliates to advertise and promote HappyMothers.com's products on
their web sites, (ii) establishing links from affiliates' sites to
HappyMothers.com's website for the purpose of allowing users of affiliate sites to
purchase products from HappyMothers.com; and
WHEREAS, you desire to be accepted by HappyMothers.com as an affiliate in the
Affiliate Program, and to advertise and promote HappyMothers.com's products on
your web site and to allow users of your site to link to HappyMothers.com's site
for the purpose of purchasing HappyMothers.com's products, among other things;
NOW, THEREFORE, in consideration of the covenants and premises contained
herein, the parties agree as follows:
Incorporation of Preamble and Recitals.
The above preamble and recitals are incorporated by reference in, and made
part of, this Agreement.
Enrollment in the Affiliate Program
To enroll in the Affiliate Program, you must submit a complete Affiliate
Program Application, which is found on HappyMothers.com's web site at
"HappyMothers.com.com." HappyMothers.com will evaluate your application and will
notify you via the e-mail address listed in your Application of its acceptance
or rejection of you as an affiliate. HappyMothers.com may reject your application
for any reason or for no reason in its sole discretion. HappyMothers.com will
reject your application if it determines, in its sole discretion, that your site
includes anything that is unlawful, harmful, threatening, defamatory, obscene,
harassing, discriminatory, or otherwise objectionable. If HappyMothers.com rejects
your application, you may reapply for participation in the Affiliate Program at
any time.
Search Guidelines
You shall not purchase search engine keywords or domain names that use HappyMothers.com's" trademark
"HappyMothers.com" and/or certain variations and mispellings thereof. You shall not purchase or register keywords,
AdWords, search terms, domain names, or other identifying terms that include the word "HappyMothers.com" or certain variations
and mispellings thereof for use in any search engine, portal, sponsored advertising service or other search or referral service.
Specifically, this policy prohibits You from:
-
Bidding on HappyMothers.com's trademark, "HappyMothers.com", and any keyword string that includes this term.
For example, "HappyMothers.com Stroller checks", "HappyMothers", "Direct HappyMothers", "HappyMothers.com Cars Seats",
etc.
- Bidding on variations of HappyMothers.com's trademark: for example "HappyMothers", "HappyMothers.com.com",
www.HappyMothers.com.com", "HappyMothers.com", ", www.HappyMothers.com", "ww.HappyMothers.com.com", "www,HappyMothers.com",
"wwwHappyMothers.com.com", etc.
- Purchasing domain names based on HappyMothers.com's trademarks or
variations of HappyMothers.com trademark: for example "HappyMathers.com", "HapyMothers.com", etc.
Affiliates found in violation of this policy will be immediately terminated from the program and will forfeit all commissions.
Spyware
We will refuse all applications or signups from affiliates which we believe
participate in spyware, adware or parasiteware techniques for driving traffic.
We reserve the right to research and investigate affiliates and their activities
and, at our own discretion, determine whether or not these practices are in
place. Affiliates found in violation of this policy will be immediately
terminated from the program and will forfeit all commissions.
Links
As an affiliate, HappyMothers.com will make available to you, via the
Shareasale.com site, a variety of graphic and textual images (the "Images") that
serve to identify your site as a member of the Affiliate Program and will
establish links from your site to HappyMothers.com.com (the "Links"). You may,
subject to the terms and conditions of this Agreement, display Links as often
and in as many areas on your site as you desire. You shall cooperate fully with
HappyMothers.com in establishing and maintaining Links. You may display in your
site only those Images provided to you by HappyMothers.com. HappyMothers.com may
discontinue use of or replace Images at any time and from time to time in its
sole discretion. Upon request, you shall remove any Image from your site and
replace it with a new Image provided by HappyMothers.com. All Links must be
displayed prominently in relevant sections of your site. Links may be modified
or expanded from time to time upon agreement between you and HappyMothers.com,
however, the banner link code cannot at any time be modified by the affiliate,
doing so will not allow proper reporting of traffic sent through such banner
link code. Each Link connecting users of your site to an area of
HappyMothers.com.com will in no way alter the look, feel, or functionality of
HappyMothers.com.com. HappyMothers.com may monitor your site at any time and from
time to time to determine if you are in compliance with the terms and conditions
of this Agreement.
HappyMothers.com's Obligations
HappyMothers.com shall be responsible for providing all information necessary
to allow you to make appropriate Links from your site to HappyMothers.com.com.
HappyMothers.com shall (i) process all orders (which includes order entry, payment
processing, shipping, handling cancellations and returns, and related customer
service) from users who link from your site, (ii) track the volume and amount of
sales generated by Links from your site, and (iii) provide information to
affiliates regarding sales statistics.
Affiliate's Obligations
- You will be solely responsible for the development, operation and
maintenance of your site and for all materials that appear on your site,
including, without limitation: the technical operation of your site and all
related equipment; the accuracy and appropriateness of materials posted on
your site; 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, defamatory,
misleading, false or deceptive or otherwise illegal; ensuring that your site
and your business practices do not include any of the activities of unsuitable
sites listed in Section 2 above.
- You agree to keep your Application updated with current and accurate
information.
- You agree to pay and be responsible for all costs and expenses you may
incur in connection with the Affiliate Program or your performance under this
Agreement.
- HappyMothers.com is not obligated to make any representations, warranties or
other statements concerning you, your site, any of your products or services,
or your site policies.
Contests and Promotions
As an affiliate, provided you perform in accordance with this Agreement, you
shall be entitled to participate in and promote on your site special promotions
HappyMothers.com may offer, and, in connection therewith, such promotions shall be
available to users of your site.
Commissions
HappyMothers.com shall pay you 8% commission for the purchase made by users of your site who link to HappyMothers.com.
No commissions shall be paid for product that is
returned for any reason or for which HappyMothers.com is unable to collect the
purchase price of the product. Commissions will be paid only on orders received
during the term of this Agreement. Affiliates will be paid the respective
commission amount depending on their order performance through the calendar
year.
Commission Payment
Shareasale.com handles all commission payments. Please visit Shareasale.com
for more information regarding minimum payouts and timing of payments.
Reports of Sales
You will be given a password and shall have the ability to enter a
password-protected site to receive your sales statistics.
Policies and Pricing
- Users who buy HappyMothers.com's products through the Affiliate Program are
customers of HappyMothers.com. Accordingly, all of HappyMothers.com's policies
(including prices and pricing policies), and operating procedures concerning
customer orders, customer service, and product sales shall apply.
HappyMothers.com may change its policies and operating procedures at any time.
HappyMothers.com reserves the right to change prices of products at any time and
from time to time. Except as may be permitted by HappyMothers.com you may not
include price information in your product descriptions.
- You understand and agree that HappyMothers.com shall be the sole owner of
any and all data and information HappyMothers.com (or its representatives)
obtains or gathers from, or in connection with, end users visiting or
transacting business on the HappyMothers.com site or otherwise transacting
business with HappyMothers.com, including without limitation, all transaction,
usage and preference data.
Publicity
You shall not create, publish, distribute, or permit any written material
that makes reference to HappyMothers.com or the Affiliate Program without first
submitting such material to HappyMothers.com and receiving its written consent.
Licenses and Use of the HappyMothers.com.com Logos and Trademarks
- HappyMothers.com grants you a limited, non-exclusive, non-transferable,
revocable right to (i) access HappyMothers.com.com through the Links solely in
accordance with the terms of this Agreement, and (ii) solely in connection
with such Links, to use the HappyMothers.com.com trademark and logo and similar
identifying material relating to HappyMothers.com (but only in the form(s) that
they appear on HappyMothers.com's Shareasale.com pages) (collectively, the
"Licensed Materials"), for the sole purpose of promoting HappyMothers.com
products on your site. You may not copy, except as expressly set forth in this
Agreement, distribute, alter, modify, reverse engineer, or create derivative
works from the Licensed Materials. HappyMothers.com may revoke your license at
any time by giving you written notice. Any goodwill arising out of your use of
the Licensed Materials shall inure to the benefit of HappyMothers.com only.
- You shall not make any specific use of any Licensed Materials for purposes
other than promoting HappyMothers.com's products on your site. You agree not to
use the Licensed Materials in a manner that is misleading or deceptive or
disparages HappyMothers.com, its site, the Affiliate Program or HappyMothers.coms
products or services or that otherwise portrays HappyMothers.com, in its
discretion, in a negative light. HappyMothers.com reserves all rights in the
Licensed Materials. At no time during the Term or thereafter will you
challenge, or assist others in challenging, the validity of the HappyMothers.com
Licensed Materials or the registration thereof or attempt to register any
confusingly similar trademarks, service marks, logos, trade names or domain
names. Except for the limited license set forth above in Subsection (a) of
this Section 12, no license or other rights to the HappyMothers.coms Licensed
Materials will be deemed granted to you hereunder or in connection with the
Affiliate Program, by implication, estoppel or otherwise.
- You grant to HappyMothers.com a non-exclusive license to use your names,
titles, logos, and trademarks (the "Affiliate Trademarks"), to advertise,
market, promote, and publicize in any manner your participation in the
Affiliate Program, and/or HappyMothers.com's rights hereunder. Notwithstanding
the foregoing, HappyMothers.com is not obligated to advertise, market, promote,
or publicize your participation in the Affiliate Program, the existence of the
Affiliate Program, or any other aspect of the Affiliate Program.
- The licenses granted hereunder shall run concurrently with the term of
this Agreement.
Obligations Regarding Your Site
You, at your sole cost and expense, shall develop, operate, and maintain your
site and all materials that appear on your site, which development, operation
and maintenance shall include, without limitation, technical operation of your
site and all related equipment; creating and posting product reviews,
descriptions, and references on your site and linking those descriptions to
HappyMothers.com.com; assuring the accuracy and propriety of all materials and
information posted on your site; 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, and all other actions necessary to operate and maintain
your site.
Term and Termination
The term of this Agreement will begin as of the date HappyMothers.com notifies you
that HappyMothers.com has accepted you as an affiliate and will end when
terminated by either party. Either you or HappyMothers.com may terminate this
Agreement at any time, with or without cause, by giving the other party written
notice of termination.
Modification
HappyMothers.com may modify any of the terms and conditions contained in this
Agreement at any time in its discretion. You will be notified of any changes via
email by a change notice. If you do not agree to be bound by the terms and
conditions of any modification to this Agreement, you may terminate this
Agreement by giving written notice to HappyMothers.com. Your continued
participation in the Affiliate Program following any notice of a modification of
this Agreement shall constitute your binding acceptance of the Agreement as
modified.
Relationship of Parties
You and HappyMothers.com are independent contractors, and nothing in this
Agreement shall be construed to create any partnership, joint venture, agency,
franchise, sales representative, or employment relationship between the parties.
You have no authority to make or accept any offers or representations on behalf
of HappyMothers.com. You may not make any statement, whether on your site or
otherwise, that contradicts anything contained in this Section.
Disclaimers
HappyMothers.com makes no express or implied warranties or representations with
respect to the Affiliate Program, HappyMothers.com.com, or any HappyMothers.com
products sold through the Affiliate Program, including, without limitation,
warranties of fitness, merchantability, non-infringement, or any implied
warranties arising out of course of performance, dealing, or trade usage.
HappyMothers.com makes no representation that the operation of HappyMothers.com.com
will be uninterrupted or error free, and HappyMothers.com shall not be liable for
the consequences of any interruptions or errors.
Representations and Warranties
You hereby represent and warrant that:
- 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.
- 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.
- You are the sole and exclusive owner of the Affiliate Trademarks and have
the right and power to grant licenses to use your trademarks in the manner
contemplated herein, and such grant does not and will not (i) breach, conflict
with, or constitute a default under any agreement or other instrument
applicable to you or binding upon your assets or properties, or (ii) infringe
upon any trademark, trade name, service mark, copyright, or other proprietary
right of any other person or entity.
- No consent, approval, or authorization of, or exemption by, or filing
with, any governmental authority or any third party is required to be obtained
or made by you in connection with the execution, delivery, and performance of
this Agreement or the taking by you of any other action contemplated hereby.
- 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
the Affiliate Trademarks, and, to the best of your knowledge, there is no
basis for any such claim, action, or proceeding.
Confidentiality
Except as otherwise provided in this Agreement or with the consent of the other
party hereto, each of the parties hereto agrees that all information including,
without limitation, the terms of this Agreement, business and financial
information, customer and vendor lists, and pricing and sales information,
concerning HappyMothers.com or you, respectively, or any other affiliate, provided
by or on behalf of any of them shall remain strictly confidential and secret and
shall not be utilized, directly or indirectly, by such party for its own
business purposes or for any other purpose except and solely to the extent that
any such information is generally known or available to the public through a
source or sources other than such party hereto or its affiliates.
Notwithstanding the foregoing, each party is hereby authorized to deliver a copy
of any such information (a) to any person pursuant to a subpoena issued by any
court or administrative agency, (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
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.
Limitation of Liability
HappyMothers.com SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, OR
CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN
CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF ITS HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY AVAILABLE WITH
RESPECT TO THIS AGREEMENT OR ANY BREACH BY HappyMothers.com HEREOF SHALL BE TO
TERMINATE THIS AGREEMENT.
Indemnification
You shall indemnify and hold harmless HappyMothers.com and its 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
HappyMothers.com's use of the Affiliate Trademarks infringes 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,
content therein not attributable to HappyMothers.com.
HappyMothers.com shall indemnify you against Losses that arise out of any claim
that your use of the Images provided to you by HappyMothers.com infringe any
rights of a third party; provided that the Images have not been modified by
anyone other than HappyMothers.com.
Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND
CONDITIONS. YOU UNDERSTAND THAT HappyMothers.com MAY AT ANY TIME (DIRECTLY OR
INDIRECTLY) SOLICIT POTENTIAL AFFILIATES 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 AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY
REPRESENTATION, GUARANTY, OR STATEMENT OTHER THAN AS SET FORTH IN THIS
AGREEMENT.
Governing Law
This Agreement will be governed by the laws of the United States and the State
of Indiana, 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 The State of Indiana, and you irrevocably consent to the
exclusive jurisdiction of such courts.
Miscellaneous
You may not assign this Agreement, by operation of law or otherwise, without the
prior written consent of HappyMothers.com. 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. This Agreement
contains the complete understanding between the parties pertaining to the
subject matter hereof. HappyMothers.com's failure to enforce strict performance of
any provision of this Agreement will not constitute a waiver of its right to
subsequently enforce such a provision or any other provision of this Agreement.
Should any one or more provisions of this Agreement be determined illegal or
unenforceable by any court of competent jurisdiction, all other provisions shall
remain effective.
Notices
All notices required under this Agreement shall be sent via United States mail,
postage prepaid, addressed to the parties at the following addresses:
If to HappyMothers.com:
HappyMothers.com Inc
Attn: Legal Services
272 Corbin Place
Brooklyn, NY 11235
If to Affiliate: The address as set forth in the Affiliate Program Application. |