DESIGN IT YOURSELF GIFT BASKETS, LLC Affiliate Program Agreement This Agreement, made and entered by and between DESIGN IT YOURSELF GIFT BASKETS, LLC ("DESIGNITYOURSELFGIFTBASKETS.COM" or "we"), a Houston Corporation, with its principal place of business at 7999 Houston, Texas, Suite #204, 77061, and you, the affiliate ("you" or "affiliate"), contains the complete terms and conditions that apply to your participation in the DESIGNITYOURSELFGIFTBASKETS.COM Affiliate Program (the " Affiliate Program" or "Program"). 1. Terms of the Agreement - The term of this Agreement will begin upon our acceptance of your affiliate 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.
2. Commissions - For a sale which DESIGNITYOURSELFGIFTBASKETS.COM makes as a result of a direct referral by an affiliate, that affiliate will receive a commission of 15% of the selling price of the product sold. A commission fee will only be paid to an affiliate after the customer has made payment in full to DESIGNITYOURSELFGIFTBASKETS.COM for the sale. Any sale returns or credits will function in the same manner, but as a deduction to the commission due to the affiliate. NOTE: Affiliates DO NOT EARN COMMISSIONS ON SALES resulting from the redemption of a Daily Deal or purchased discount voucher such as from Groupon, Living Social, Amazon Local, etc. Affiliates may, however, use any of the discount Coupons or Codes provided by Us through our AWIN program to promote referred sales to our website
3. Termination - Upon termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to our site, and all DESIGNITYOURSELFGIFTBASKETS.COM trademarks, logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program.
4. Modifications to the Agreement - 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 this site. Modifications may include, for example, changes in the scope of available commission structure, 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.
5. Eligibility Restrictions - Employees of Design It Yourself Gifts, LLC and the immediate family members of such employees and all persons under 18 years of age are not eligible to participate in the DESIGNITYOURSELFGIFTBASKETS.COM Affiliate Program
6. Enrollment in the Program - To begin the enrollment process, you will submit a complete application from the AWIN site. We will evaluate your application in good faith and will notify you of your acceptance or rejection. We may reject your application if we determine (at our sole discretion) that your site is unsuitable for the Program. If we reject your application, you are welcome to re-apply 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 without notice. Your site should: a) Generate sufficient traffic to our website; b) Attract a customer base that may be interested in our products; c) Not promote discrimination, hatred or violence based on race, sex, religion, nationality, disability, sexual orientation, or age; d) Not promote illegal activities, including hacking, password cracking and warez; e) Not violate the intellectual property rights of DESIGNITYOURSELFGIFTBASKETS.COM.
7. 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 us or you, respectively, or any of our affiliates 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. 8. Fraud - If you commit fraud or falsify information in connection with the registration of members in DESIGNITYOURSELFGIFTBASKETS.COM through the links on your site, this Agreement will be terminated immediately. In addition, you will be liable to DESIGNITYOURSELFGIFTBASKETS.COM for any and all damages that DESIGNITYOURSELFGIFTBASKETS.COM suffers as a result of such actions. You will also be responsible for returning to DESIGNITYOURSELFGIFTBASKETS.COM all commissions received for fraudulent/falsified members, and we will not hesitate to pursue all legal causes of action against you to the fullest extent possible under the law. 9. Limitation of Liability - We will not 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 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 commission paid or payable to you under this Agreement. 10. 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 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. DESIGNITYOURSELFGIFTBASKETS.COM may cite your name or URL in connection with your participation in the program in materials including but not limited to postings on our site, newsletters, advertisements, and other communications. 11. Payment to Affiliates - In general, Commissions will be paid by AWIN on behaf of DESIGN IT YOURSELF GIFT BASKETS, LLC and are subject to the laws, rules, and guidelines as posted by AWIN pertaining to the processing of affiliate commissions. Commissions are calculated based on ‘Total Net Sales Generated’ (less shipping & handling charges, taxes, service charges, returns, cancellations, chargebacks and bad debt) amount for each month. If an exchange is made from an order and results in a lesser sale amount, the earned commission will be reversed from the affiliate’s account. The new commission amount will then be reflected. If an exchange is made from an order and results in a greater sale amount, the additional earned commission will be added to the affiliates account. 12. Tracking of Sales - AWIN will be solely responsible for tracking sales made to customers who follow an affiliate’s links or inputs or mentions the affiliate’s code. An affiliate will be solely responsible for ensuring that its links are formatted properly and maintained in a manner which allows AWIN to track such sales. No commission shall be if paid if the application cannot be tracked by AWIN or if the customer accesses the DESIGNITYOURSELFGIFTBASKETS.COM site other than through the affiliate’s links. No commissions shall be paid on sales generated by affiliate links posted as Pay Per Click (PPC) advertising of any kind, including but not limited to Google Adwords, Yahoo! Search Marketing, Ask.com, MSN Live Search, etc. No commissios shall be paid on sales generated by affiliate links posted as product listings to comparison shopping engine sites of any kind, including but not limited to Pricegrabber, Shopzilla, SortPrice, Jellyfish, NetShops, Shop.com, Shopping.com, FindGift.com, etc. Acceptable promotion venues include sites owned and operated by our affiliates as well as affiliate newsletters or other campaigns such as email promotions (provided the email lists include only opt-in recipients), etc.13. Order Processing - DESIGNITYOURSELFGIFTBASKETS.COM will process orders placed by customers who follow links from your site to the DESIGNITYOURSELFGIFTBASKETS.COM site. DESIGNITYOURSELFGIFTBASKETS.COM shall be responsible for product payments, returns and related customer service issues. DESIGNITYOURSELFGIFTBASKETS.COM reserves the right, in its sole discretion, to reject an order for any reason, or no reason at all. 14. DESIGNITYOURSELFGIFTBASKETS.COM Return Policy - Satisfaction with our products is guaranteed. If for any reason a visitor is not satisfied with their purchase, they may return it or exchange it within 30 days of receipt of product. Absolutely no returns or exchanges will be made after 30 days. Upon receipt of a returned item, DESIGNITYOURSELFGIFTBASKETS.COM will make the appropriate adjustments to the affiliate’s commission fees. 15. Responsibilities of 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. You are solely responsible for: a) The technical operation of your site and all related equipment; b) The accuracy and appropriateness of materials posted on your site (including, among other things, all DESIGNITYOURSELFGIFTBASKETS.COM product-related materials); c) Ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, copyrights, trademarks, privacy, or other personal or proprietary rights); d) Ensuring that materials posted on your site are not libelous or otherwise illegal. 16. Indemnification - We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys’ fees) relating to the development, operation, maintenance, and contents of your site.
17. Limited License - We grant you a nonexclusive, nontransferable, revocable right to access our site through the links solely in accordance with the terms of this Agreement, for the sole purpose of linking your site to our site, solely for the purpose of identifying your site as a participant in the Program and assisting in increasing traffic to DESIGNITYOURSELFGIFTBASKETS.COM. You may not alter, modify, or change the links in any way. You are only entitled to use the links to the extent that you are a member in good standing of the DESIGNITYOURSELFGIFTBASKETS.COM Affiliate Program. We may revoke your license anytime by giving you written notice via email. 18. Publicity - While we encourage you to promote your involvement in the DESIGNITYOURSELFGIFTBASKETS.COM Affiliate Program, you shall not create, publish, or distribute any written material that makes reference to us without first submitting such material to us and receiving our consent. 19. Anti-Spam Policy - DESIGNITYOURSELFGIFTBASKETS.COM employs a STRICT zero tolerance policy towards SPAM! Affiliates will receive no "first warning." The use of SPAM by any DESIGNITYOURSELFGIFTBASKETS.COM affiliate will result in the immediate termination of Affiliate Account and forfeiture of any pending commissions. Affiliate will also be in violation of this Affiliate Agreement and subject to legal action and will be held liable for any financial loss incurred by DESIGNITYOURSELFGIFTBASKETS.COM. Any service interruptions to DESIGNITYOURSELFGIFTBASKETS.COM. as a result of an affiliate spamming will be billed to the Affiliate at a rate of $2,500 U.S. dollars per hour until service is restored. For the purpose of this agreement SPAM is defined as emailing ANYONE, in bulk or by single mailing about DESIGNITYOURSELFGIFTBASKETS.COM or distributing unsolicited commercial information via email or in newsgroups/chatrooms which contains any reference to DESIGNITYOURSELFGIFTBASKETS.COM. 20. Anti-Predatory Policy - No affiliate will replace, intercept, interfere, hinder, disrupt or otherwise alter in any manner the Web users’ access, view or usage of, or other aspect of the Web users’ experience at, any affiliate's webpage (as defined below) in a manner that causes or otherwise results in a different experience from that was otherwise intended by such affiliate. *No Affiliate will block, alter, direct or redirect, or substitute, insert or append itself to, or otherwise intercept or interfere in any manner with, any click-through or other traffic-based transaction that originated from an affiliate webpage (including without limitation any return visit to DESIGNITYOURSELFGIFTBASKETS.COM to which such click-through or other traffic reached or intended to reach) with the result of reducing compensation or other payment earned by or owing to an affiliate or increasing any payment obligation of DESIGNITYOURSELFGIFTBASKETS.COM with respect to any individual transaction. 21. Disclaimer - We make no express or implied warranties or representations with respect to the DESIGNITYOURSELFGIFTBASKETS.COM website or the DESIGNITYOURSELFGIFTBASKETS.COM Affiliate Program (including, without limitation, warranties of fitness, merchantability, no 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. 22. Miscellaneous This Agreement will be governed by the laws of the United States and the State of Texas, 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 Harris County, Texas 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 provision or any other provision of this Agreement. 23. 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 websites that are similar to or compete with your website. 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.
