Affiliate Agreement
01. This Agreement governs the use of the Furnitureland South Affiliate Program (“Program”) whether sponsored by Furnitureland South, Inc. (“FLS”) or by The Design Network, LLC (“TDN”) (collectively, jointly or separately “FLS/TDN” meaning FLS and/or TDN). “Affiliate” refers to persons applying for, or participating in the Program. The Affiliate acknowledges his or her agreement to abide the following terms generally, and in particular, the Affiliate’s use of HTML linking between Affiliate’s website and the FurniturelandSouth.com website, and/or TheDesignNetwork.com website.
02. This agreement shall begin upon Affiliate’s application and continue unless terminated on terms explained below.
03. The tracking of sales and remittance of payments will be managed by ShareASale, a third-party affiliate marketing network. Applicant should review ShareASale’s terms and conditions. Access to Affiliate Account Interface. Affiliate will create a password so that Affiliate may enter ShareASale’s secure Affiliate account interface. From their site Affiliate will be able to receive Affiliate’s reports that will describe FLS/TDN’s calculation of the commissions owed to the Affiliate you. To enroll in the Program, the Affiliate should set up an account at the ShareASale.com server and agree to its terms.
04. Commissions are paid only on qualifying sales, meaning sales where goods have been sold, delivered, accepted, paid for in full and invoiced. Sales through e-Design are not qualifying sales. FLS/TDN reserves the right to alter commissions in cases where more than one affiliate is responsible for driving sales.
05. Prohibited Content: Affiliate’s content shall not contain, constitute, or promote any of the following:
a. spam;
b. violence, substance abuse, illegal conduct;
c. sexually suggestive or explicit, obscene, or pornographic matter;
d. discrimination based on race, sex, religion, color, national original, gender preference, or sexual orientation;
e. infringement on the intellectual property rights of any person or entity including FLS/TDN;
f. unlawful, harmful, threatening, harassing or racially, ethnically or otherwise objectionable content;
g. defamation, harassment, stalking, or any tort (including violation of privacy rights, invasion of privacy, disclosure of private facts, and infliction of emotional distress);
h. deceptive, fraudulent, or false representations;
i. use “Furnitureland South”, “The Design Network”, or variations or misspellings thereof in its domain name; or
j. links that violate the terms of this Agreement.
06. Prohibited Conduct: Affiliate shall not engage in any of the following conduct:
a. use website features that replicate or are deceptively similar to the FLS/TDN website;
b. create the impression that Affiliate is an agent for FLS/TDN;
c. directly or indirectly diverts commissions from other affiliates; or
d. create or allow the impression that that there is a partnership, employee/employer, agency, joint-venture, subsidiary chain, franchise, subsidiary, parent, or sibling relationship between FLS/TDN and the Affiliate.
07. Affiliates that exclusively bid in their Pay-Per-Click campaigns on keywords such as FurniturelandSouth.com, TheDesignNetwork.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to redirecting it to ours, will be considered trademark violators and will be banned from the Program.
08. As a participant in the Program, the Affiliate will have access to Affiliate Account Manager on ShareASale which will enable the Affiliate to review details about the Program, download code that provides for links to web pages; download creative banners; browse and get tracking codes for FLS/TDN’s coupons and deals. Affiliate must use the code provided by FLS/TDN with each Program-related link, banner, text or Affiliate link. This will assure accurate tracking of shopper visits to Affiliate’s website.
09. Affiliate agrees to remove content and links that violate this Agreement.
10. FLS/TDN reserves the continuing right, but not a duty, to monitor and take all lawful actions to procure the removal of Affiliate’s placement and use of Affiliate’s links to comply with this Agreement.
11. Affiliate shall fully disclose without confusion or misrepresentation its status as an independent party and its identity, email address or domain.
12. Affiliate shall comply with all relevant statutes and regulations governing the following.
a. Use of endorsements and testimonies including The Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising. HTTPS://WWW.FTC.GOV/SITES/DEFAULT/FILES/ATTACHMENTS/PRESS-RELEASES/FTC-PUBLISHES-FINAL-GUIDES-GOVERNING-ENDORSEMENTS-TESTIMONIALS/091005REVISEDENDORSEMENTGUIDES.PDF
b. Commercial use of email including the CAN SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act).
c. Use and handling of Personal Information, including the North Carolina Identity Theft Protection Act of 2005. (“Personal Information” includes, among other things: social security number, driver’s license, bank account numbers, credit and debit card numbers, personal identification numbers, passwords, parent’s surname prior to married, fingerprints, and digital signatures, or any other numbers or information that can be used to access a person's financial resources.)
d. Acquisition and use of domain names including Anticybersquatting Consumer Protection Act of 1999. For clarity this prohibits, among other things cybersquatting (reserving a domain name that would be associate with another company’s trademark); and typosquatting (registering domain names that are close misspellings in order to capture and exploit traffic intended for other websites.
e. Transmission of any of the following: interstitials, Parasiteware, Parasitic Marketing, Shopping Assistance Application, Toolbar Installations, and/or Add-ons, Shopping Wallets or deceptive popups and/or pop-unders. Parasiteware and Parasitic Marketing include applications that
i. overwrite Affiliate and non-Affiliate commission tracking cookies through any other means than a customer-initiated click on a qualifying link;
ii. intercept searches to redirect traffic through an installed software, causing the placement of pop-ups, commission-tracking cookies, or other commission-tracking cookies to be overwritten where a user would have ordinarily arrived at the same destination through the results given by the search engines such as Google, Bing, MSN, Yahoo, Overture and similar search services); set commission tracking cookies through the loading of FLS/TDN’s website in IFrames, hidden links or automatic pop ups that open FLS/TDN’s website;
iii. target text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing;
iv. remove, replace or block the visibility of Affiliate banners with any banners, other than those that are on web sites 100% owned by owner of the application.
13. Affiliate retains full and exclusive responsibility for the maintenance, updating, and legal compliance of Affiliate’s website. For clarity: AFFILIATE IS SOLELY RESPONSIBLE FOR AFFILIATE’S CONTENT AND CONDUCT. BY SUBMITTING USER CONTENT, AFFILIATE PROMISES THAT (A) IT IS NON-PROPRIETARY AND NOT CONFIDENTIAL; (B) AFFILIATE OWN THE USER CONTENT OR OTHERWISE HAVE THE RIGHT TO SUBMIT IT; (C) IT DOES NOT VIOLATE THE INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF PRIVACY, RIGHTS OF PUBLICITY, OR ANY OTHER RIGHTS OF ANY THIRD PARTY; AND (D) IT COMPLIES WITH FLS/TDN’S WEBSITE CODE OF CONDUCT. ALTHOUGH AFFILIATE’S SUBMISSION DOES NOT DIVEST AFFILIATE OF OWNERSHIP RIGHTS TO THE USER CONTENT, AFFILIATE IS GRANTING FLS/TDN PERPETUAL, WORLDWIDE RIGHT, TITLE AND INTEREST IN ALL COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY RIGHTS IN THE USER CONTENT. AFFILIATE ALSO GRANT EACH USER OF THE SITE A NON-EXCLUSIVE LICENSE TO ACCESS AFFILIATE’S USER CONTENT THROUGH THE WEBSITE AND TO DOWNLOAD, USE, WATCH, REPRODUCE, DISTRIBUTE, FORWARD, DISPLAY, PERFORM OR OTHERWISE ACCESS AND UTILIZE SUCH USER CONTENT IN WHOLE OR IN PART.
14. DISCLAIMER. WITH RESPECT TO THIS WEBSITE OR THE GOODS AND SERVICES TRADED THROUGH THE PROGRAM FLS/TDN MAKES NO WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE EXPRESSLY AND SPECIFICALLY DISCLAIMED. FLS/TDN SHALL NOT BE RESPONSIBLE FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES FLS/TDN DOES NO REPRESENT THAT ITS FLS/TDN WEBSITE WILL OPERATE WITHOUT ERROR OR INTERRUPTION, FLS/TDN SHALL NOT BE LIABLE FOR LOSSES RESULTING FROM ERRORS OR INTERRUPTIONS.
15. A person’s application or participation in the Program; the use of the word “Affiliate”; or the actions of the Parties shall not establish or be construed to establish a connection between the Parties any greater than the tracking and payment of sales as set forth in this Agreement. Among other things this explicitly disclaims the creation of a joint venture, partnership, employment, franchisor/franchisee relationship or shared governance between FLS/TDN and the Affiliate. The Program does not confer real or apparent authority upon the Affiliate to bind or otherwise obligate FLS/TDN. For additional clarity, the Affiliate is not an agent of FLS/TDN and has no authority to bind either.
16. FLS/TDN RESERVES THE RIGHT TO UPDATE OR MODIFY THESE TERMS OR ITS WEBSITE AT ANY TIME WITHOUT PRIOR NOTICE. AFFILIATES ARE ENCOURAGED TO REVIEW THESE TERMS AND CONDITIONS EACH TIME THEY VISIT THE WEBSITE AS REVISIONS WILL SUPERSEDE THE PREVIOUS VERSIONS THEY REPLACE. AFFILIATE’S CONTINUED STATUS AS AN AFFILIATE OR PARTICIPATION CONSTITUTES CONSENT TO ANY SUCH MODIFICATIONS.
17. The Affiliate shall indemnify FLS/TDN, its affiliates, directors, executives and employees and hold them harmless from any cost, loss, claim, or liability or expenses (including reasonable attorneys' fees) arising out of or in any way related to the Affiliate’s violation of this Agreement.
18. Termination
a. Affiliate may terminate this Agreement at any time for any reason with notice.
b. FLS/TDN RESERVES THE RIGHT TO CANCEL THE AFFILIATE STATUS OR OTHERWISE TERMINATE PARTICIPATION IN THE PROGRAM IMMEDIATELY AND WITHOUT NOTICE FOR ANY REASON IT DEEMS IN ITS SOLE DISCRETION TO BE APPROPRIATE, INCLUDING, BUT NOT LIMITED TO, AFFILIATE’S VIOLATION OF THIS AGREEMENT OR AFFILIATE’S CONDUCT, CONTENT OR WEBSITE IS DEEMED IN APPROPRIATE.
c. FLS/TDN RESERVES THE RIGHT TO DISCONTINUE THE SERVICE AT ANY TIME WITHOUT NOTICE.
d. Program responsibilities which by their nature would apply post-termination or post-cancellation (for example, indemnification and agreement to remove), shall survive the Agreement.
19. This Agreement shall be deemed to have been made and executed in the State of North Carolina. Any dispute arising hereunder will be resolved in accordance with the laws of the State of North Carolina without reference to its conflict of laws principles. Any action or suit under this Agreement or otherwise arising from the relationship between the Parties will be exclusively brought and exclusively maintained in any federal or state court with appropriate jurisdiction over the subject matter hereof established or sitting in the State of North Carolina. THE PARTIES HEREBY CONSENT TO JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS LOCATED IN THE STATE OF NORTH CAROLINA, GUILFORD COUNTY AND HEREBY WAIVE TRIAL BY JURY AND/OR ANY DEFENSES BASED UPON THE VENUE, THE INCONVENIENCE OF THE FORUM, OR THE LACK OF PERSONAL JURISDICTION IN ANY ACTION OR SUIT ARISING FROM SUCH DISPUTE WITH JURISDICTION AND/OR VENUE SO SELECTED.
20. AFFILIATE AGREES NOT TO JOIN OR PARTICIPATE IN CONSOLIDATING OR CONSOLIDATED CLAIMS AS CLASS REPRESENTATIVE OR UNDER THE DOCTRINE OF PRIVATE ATTORNEY GENERAL ANY DISPUTE, CLAIM, OR CAUSE OF ACTION AGAINST FLS/TDN; AND THE AFFILIATE OR CONSUMER IN ANY WAY CONNECTED TO ANY FEATURE, FACET OR ASPECT OF THE PROGRAM OR THIS AGREEMENT AGAINST FLS/TDN.
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© 2018 The Design Network, LLC. All rights reserved.
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© 2018 Furnitureland South, Inc. All rights reserved.
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Affiliate Agreement 03.16.2018
