Measure & Made
Program Terms
MEASURE & MADE AFFILIATE PROGRAM AGREEMENT:
1. INTRODUCTION.
The following affiliate program agreement (“Agreement”) is provided by Park Avenue Apparel LLC (“PAA”) to Affiliate for the PAA Measure & Made Web Affiliate Program (“Program”). Affiliate must agree to abide by the requirements in this Agreement in order to participate in the Program. This Agreement is in addition to Shareasale.com, Inc.’s (“shareasale.com”) Terms of Use, Affiliate Service Agreement and any other agreements between Affiliate and shareasale.com (“Shareasale Agreements”). You agree to comply with the all the terms and conditions of the Shareasale Agreements and agree that any violation or breach of the Shareasale Agreements shall be deemed to be a breach of this Agreement. PAA may amend this Agreement at any time in PAA’s sole discretion by posting a revised version of this Agreement. Continued participation in the Program after the effective date of the revised Agreement constitutes Affiliate’s acceptance of the revised Agreement.
2. DEFINITIONS.
• “Affiliate” refers to the business, individual, or entity applying to or participating in the Program, or that displays PAA’s products and/or promotions on its websites, or other means using an affiliate tracking code in exchange for receiving a commission from PAA from sales directly resulting from such display.
• “Commission Fees” means the amount you will be paid for each Qualified Purchases by a Referred Customer that you refer to PAA and pursuant to the terms of this Agreement.
• “Commission Threshold” means the amount of Commission Fee that an Affiliate may have to first accrue prior to receiving a payment from PAA, as may be determined by PAA at any time in its sole discretion.
• “Products” means a MEASURE & MADE branded product available for purchase from our website.
• “Qualified Purchase” means a sale of Product(s) to a Referred Customer, excluding any Product that is specially designated as a sale, discount or clearance item. For sake of clarity a Qualified Purchase shall only include Products sold to a Referred Customer at
its full retail price or subject to a discount code or price reduction that PAA provides and is applicable to the Program.
• “Referred Customer” means each new and unique customer referred to our website from Affiliate through Links (as defined herein), that provides valid account and billing information and complete a Qualified Purchase.
• “We”, “us”, or “our” refers to PAA and our website.
• “You” or “your” refers to the Affiliate.
• “Our website” refers to the PAA properties located at www.measureandmade.com.
• “Your website” refers to any websites that you will link to our website.
• “Program” refers to the PAA Affiliate Program.
3. ENROLLMENT.
After receiving your application, we will review your website and notify you of your acceptance or rejection into our Program. Please allow up to 48 hours for your application to be reviewed. We reserve the right to reject any application in our sole discretion for any reason. However, we encourage you to contact us if you feel we have made an incorrect decision. Including all of the websites that you use in your profile will help us make a better decision.
4. PROMOTION OF AFFILIATE RELATIONSHIP/USE OFLINKS.
If you qualify and agree to participate as an Affiliate in the Program, we will make a variety of graphic and textual materials and links available to you (“Links”). The Links will serve to identify your website as a member of the Program and will establish a link from your website or e-mail to PAA’s website. You agree to (i) only use Links provided by PAA, (ii) to only use such Links in compliance with all guidelines, instructions or directions from PAA, (iii) to cooperate fully with PAA to establish and maintain such Links, and (iv) to use the Links in compliance with this Agreement at all times. PAA may modify the Links from time to time in its sole discretion. You shall not use any graphic or textual images or text to promote PAA or the Products that are not approved, in
writing in advance, by PAA. For avoidance of doubt, any information regarding PAA displayed on your website must be preapproved by PAA in writing.
You are granted a limited, non-exclusive, non-transferrable, revocable, license to use and display the Links, to access our website through the Links and to use any other trademark or logo as provided to you by PAA (the “Licensed Materials”) for the sole purpose of your participation as an Affiliate in the Program. You are only entitled to use the Licensed Materials while you are an Affiliate in good standing and in strict compliance with this agreement and the Shareasale Agreements. You are not permitted to use the Licensed Materials for any purpose other than you participation as an Affiliate in the Program.
DISCLAIMER:
Except as permitted herein, you shall not (i) use any Licensed Materials or other of PAA’s trademarks, trade names or other intellectual property, or any variations or misspellings thereof or any terms which in PAA’s sole discretion are confusingly similar with any of the foregoing (“PAAIP”) without PAA’s express written permission, (ii) use any PAAIP in a domain, website or social media name, in any bids for keywords or Google Ad words (or similar programs at other search engines), in any search engine advertising (paid or otherwise), in any meta tags, Google Adwords (or similar programs at other search engines), key words, advertising, search terms, code, or otherwise, (iii) act in any way that causes or creates or could cause or create any “initial interest confusion” over the use of PAAIP on the internet or in any search engine advertising. Your use of PAAIP in any manner, other than as expressly permitted in this Agreement or the Shareasale Agreements shall constitute unlawful infringement of PAA’s intellectual property rights, and may subject You to claims for damages and other legal and equitable claims for relief.
RESTRICTIONS ON USE OF MEASURE & MADE
Affiliate expressly agrees to the following:
• Affiliate must always indicate that “Measure & Made is powered by Fitlogic®, a patented personal sizing system that focuses on body shape and not just size.”
• Never to refer to or indicate that any Measure & Made product is “custom made.” Instead, Measure & Made products may be referred to as “personalized” or “custom-like.”
5. WEBSITE RESTRICTIONS.
Your participating website(s) may not, as determined in our sole discretion: (i) infringe on our or any anyone else’s intellectual property, publicity, privacy or any other rights; (ii) violate any law, rule or regulation; (iii) contain any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contains nudity, pornography or sexually explicit materials; (iv) contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information; (v) contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate commissions from another website and (vi) must comply with all applicable privacy laws and regulations.
6. LINKING TO OUR WEBSITE.
Upon acceptance into the Program, Links will be made available to you through an affiliate interface. Your acceptance in our program means you agree to and abide by the following:
• You will only use Links and linking codes obtained from the affiliate interface without manipulation.
• All domains that use your affiliate link must be listed in your affiliate profile.
• Your website will not in any way copy, resemble, or mirror the look and feel of our website. You will also not use any means to create the impression that your website is our website or any part of our website including, without limitation, framing of our website in any manner.
• You may not engage in cookie stuffing or include pop-ups, false or misleading links on your website. In addition, wherever possible, you will not attempt to mask the referring url information (i.e. the page from where the click is originating).
• Using redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that domain is prohibited. If you are found redirecting links to hide or manipulate their original source, your current and past commissions will be voided or your commission level will be set to $0. This does not include using “out” redirects from the same domain where the affiliate link is placed.
7. PAY-PER-CLICK ADVERTISING AGREEMENT
If you are enrolled in our Program and participate in a pay-per-click (“PPC”) advertising, you must adhere to our advertising agreement as follows:
• You may not bid on any of our trademarks (which are identified below), including any variations or misspellings thereof for search or content based campaigns on Google, MSN, Yahoo, Facebook or any other network.
• You may not use our trademarks in sequence with any other keyword (i.e. MEASURE & MADE Coupons).
• You may not use our trademarks in your ad title, ad copy, display name or as the display url.
• You may not direct link to our website from any PPC ad or use redirects that yield the same result. Affiliate links must be directed to an actual page on your website.
• You may not bid in any manner appearing higher than PAA for any search term in position 1-5 in any auction style pay-per-click advertising program. If you automate your PPC campaigns, it is your responsibility to exclude our trademarked terms from your program and we strongly suggest you add our trademarked terms as negative keywords. We have a strict no tolerance policy on PPC trademark bidding. You will forfeit all commissions for a minimum of the past 30 days and your commission will be set to $0 without warning if you engage in PPC trademark bidding that uses our trademarked terms.
Trademarks: MEASURE & MADE; PARK AVENUE APPAREL; TAKE BACK YOUR CLOSET; PERFECT FIT CHALLENGE; ONE FIT WONDER; FITLOGIC.
8. COUPON AGREEMENT
If you are enrolled in our Program and your website promotes coupon codes, you must adhere to our coupon agreement as follows:
• You may NOT post any refunds, credits or discounts on PAA’s Products that have not been preapproved by PAA in each instance.
• You may ONLY advertise coupon or discount codes that are provided to you through the Program.
• Posting any information about how to work around the requirements of a coupon/promotion (i.e. first time customers only) will result in removal from the Program.
• Coupons must be displayed in their entirety with the full offer, valid expiration date and code.
• You may NOT use any technology that covers up the coupon code and generates the affiliate click by revealing the code(s).
• You may NOT advertise coupon codes obtained from any non-affiliate marketing channel, including coupon codes from our email, paid search or any other non-affiliate advertising campaigns.
• You may NOT give the appearance that any ongoing offer requires clicking from your website in order to redeem. For example, if all items on the site have free shipping over $100, you may not turn this into an offer that infers that the customer must click from your site to get this deal. Additionally, if your website ranks on the first page of Google for terms related to our website or company name(s) combined with the words coupon, coupons, coupon code, promo code, etc. and/or your conversion rate exceeds 25%, you may be offered a lower commission than our standard rate to offset the reduced profitability of orders.
• Any violations of the terms of the Program concerning links, coupons, refunds, credits or discounts shall constitute a material breach of this Agreement, and may result in your termination from the Program or the withholding of commissions.
9. COUPON ATTRIBUTION & AUTHENTICATION
Affiliates whose primary business is posting coupons, who are viewed by the program as being a coupon site, and/or who are tagged as coupon in our system, may not be paid commissions for sales generated without a corresponding valid coupon code. Valid codes are defined as codes that are made available to the affiliate channel in general, through newsletters or the Deals Database in shareasale.com, and directly or privately to affiliates. Coupon codes that are not real, expired, not specific (i.e. up to 40% off sale items) or are long-term site wide offers that do not require a code may not be considered valid codes and the affiliate will not be given commission on these orders.
10. SUB-AFFILIATE NETWORKS
Promoting PAA through a sub-affiliate network is permitted, however you must be completely transparent with regards to where traffic from your sub-affiliates originated. Sub-affiliate networks must ensure that all sub-affiliates promoting the Program adhere to our program terms and conditions. This includes restrictions on advertising through toolbars, browser extensions, and through any paid placements such as pay-per-click campaigns. Sub-affiliate networks must also receive approval prior to allowing any type of coupon sub-affiliate to promote the PAA program. Failure to comply with our sub-affiliate network terms may result in a loss and/or reduction of commissions from sales made through any sub-affiliate that does not comply with our program terms.
11. DOMAIN NAMES
Use of any of our trademarked terms as part of the domain or sub-domain for your website is strictly prohibited.
12. ADVERTISING & PUBLICITY
You shall not create, publish, distribute, or print any written material (electronic or otherwise) that makes reference to our Program without first submitting such material to us and receiving our prior written consent. If you intend to promote our Program via e-mail campaigns, you must adhere to the following:
• Abide by the CAN-SPAM Act of 2003 (Public Law No. 108-187) with respect to our Program.
• E-mail must be sent on your behalf and must not imply that the e-mail is being sent on behalf of PAA.
• E-mails shall not use any PAA Links, trademarks, tradenames, or other intellectual property owned by PAA which has not been approved by PAA in advance and such materials may only be used in strict compliance with all guidelines, instructions and directions from PAA.
• E-mails must first be submitted to us for approval prior to being sent or we must be sent a copy of the e-mail.
13. SOCIAL MEDIA
Promotion on Facebook, Twitter, Instagram and other social media platforms (“Social Media Platforms”) is permitted following these general rules:
• You ARE ALLOWED to promote offers to your own lists; more specifically, you’re welcome to use your affiliate links on your social media platforms. For example: You may post, “25% off sale at MEASURE & MADE through Wednesday with code PAA25.”
• You ARE PROHIBITED from posting your affiliate links on PPA’S Social Media Platforms in an attempt to turn those links into affiliate sales.
• You ARE PROHIBITED from creating any social media platforms or accounts that include any trademark owned by PPA in the page name or username.
• You may not mention, reference or show any other brand other than Measure & Made in any post.
14. OPERATIONS OUTSIDE UNITED STATES
If you are conducting business in or taking orders from persons in other countries, you will follow the laws of those countries. For example, you will comply with the European Union’s Privacy and Electronic Communications Directive if you are conducting business in or taking orders from persons in one or more of the European Union countries.
15. REVERSAL & COMMUNICATION POLICY
PAA strives for a very low reversal rate. However, we reserve the right to reverse orders due to order cancellations, duplicate tracking, returns, disputed charges, and program violations as outlined in this Agreement. Additionally, if we ask you for clarification or more information on any orders or clicks that we suspect may be in violation of our terms and conditions, we expect that you will respond in a timely and honest manner. Below are violations of our communications policy.
• You are not forthcoming, intentionally vague or are found to be lying.
• You are not responsive within a reasonable time period or we are not able to contact you using the contact information you provided in your network profile.
• You cannot substantiate or validate the source of your traffic to our Program with clear and demonstrable proof.
If any of the above applies, we reserve the absolute right to reverse orders, set your commission to $0 or suspend you from the Program. We know that many violations are a result of automated processes; however it is incumbent upon each Affiliate to ensure that it has the appropriate checks and balances in place to pro-actively address these issues and adhere to our program rules.
16. Commission Fee Determination; Qualified Purchases
• We will pay Affiliate a Commission Fees based on the number of Qualified Purchases generated by a Link.
• The Commission Fee shall be twenty percent (20%) if the Net Sales of each Qualified Purchase. “Net Sales” means the actual purchase price paid by a Referred Customer for a Qualified Purchase, less deductions for customer shipping and handling fees, credit card and other payment processing fees, returns and sales taxes, if any. The Commission Fee may change from time to time in PAA’s sole discretion.
• A “Qualified Purchase” does not include: (i) a purchase by a Referred Customer that is subject to a refund; (ii) a purchase that was completed prior to Affiliate joining the Program or was not tracked properly through an Affiliate Link; (iii) a purchase
that PAA suspects, in its sole discretion, is the result of fraud, which shall include, but is not limited to, the use of software that generates real and fictitious information, multiple accounts from the same customer, or the referral of accounts that do not comply with this Agreement; (iv) a purchase made by an Affiliate through its own Link; or (v) a purchase by a Referred Customer if the Referred Customer was offered or received coupons, refunds, credits or discounts not approved in advance by PAA.
• We reserve the right to withhold payment of Commission Fees to an Affiliate who has commissions that are potentially fraudulent as determined by us in our sole discretion, to determine the legitimacy of the Referred Customer.
• We reserve the right to suspend payment of Commission Fees at any time and indefinitely, if we suspect fraud or other improper activity or a potential breach of any of the terms of this Agreement by Affiliate or Referred Customer. We also reserve the right to deduct from Affiliate’s current or future Commission Fees any and all Commission Fees paid corresponding to any fraudulent, questionable or canceled purchases.
• We reserve the right to immediately cancel or withhold for later review Commission Fees that fail to meet the criteria of a “Qualified Purchase.”
• Any attempt by Affiliate to manipulate or artificially inflate Referred Customers, Qualified Purchases or Commission Fees or to defraud PAA or any violation of the terms of this Agreement or the Shareasale Agreements constitutes immediate grounds for us to terminate you from participating in the Program and will result in the forfeiture of any Commission Fees due Affiliate.
17. Accrual and Payment of Commission Fees
• Commission Fees may not be paid to Affiliate for amounts less than the Commission Threshold of $50.00 USD. Any Commission Fees earned by Affiliate that are less than the Commission Threshold will carry over into the next payment cycle. In such case, when your Commission Fees total reaches $50.00 or more, you will be sent a payment pursuant to the terms of this Agreement, provided all Qualified Purchases associated therewith meet the conditions set forth in this Agreement. For sake of clarity, once you have qualified for a payment pursuant to the terms of this section and payment has been rendered, you will not be entitled to future payment of any Commission Fees unless and until you have again reached or exceeded the Commission Threshold each time. If you have not reached or
exceeded the Commission Threshold in any consecutive twelve (12) month period, the Commission Fees earned by Affiliate during such period will no longer carry over into the next payment cycle, no payment will be made thereon and any such Commission Fees will be forfeited and reset to zero.
• Commission Fees are based on a sixty (60) day “tracking gap” as defined in the Shareasale Agreements and will be paid no later than sixty (60) days from the date PAA receives payment for a Qualified Purchase
• Payment of Commission Fees will be made through shareasale.com. We are not responsible for paying any third party fees charges by shareasale.com or any other payment processor in order for you to receive your Commission Fees.
• We reserve the right, in our discretion, to change or modify the available commission payment methods or payment schedule at any time. You will be notified by us of any such changes, which shall take effect when posted on our site.
• Affiliate acknowledges and agrees that we may fulfill our payment obligations under this Agreement through a third party service or vendor.
• We do not make any guarantee of a minimum amount of Qualified Purchases or that Affiliate will earn any amount of Commission Fees.
18. FTC DISCLOSURE REQUIREMENTS
It is the intent of PAA to treat all customers fairly. Accordingly, we require all Affiliates to comply with all applicable laws, regulations and guidelines concerning advertising and marketing, including, without limitation the Federal Trade Commission (“FTC”) Endorsement Guides, which require material connections between advertisers and endorsers to be disclosed. This means you must include a disclosure statement within any and all pages, blog/posts, or social media posts where affiliate links for our Program are posted as an endorsement or review, and where it is not clear that the link is a paid advertisement. This disclosure statement should be clear and concise, stating that we are compensating you for your review or endorsement. If you received the product for free from us or from the affiliate management team for review, this also must be clearly stated in your disclosure.
• Disclosures must be made at the beginning of the claims and may not appear solely in a “Terms of Use”, “Legal”, “About Us” or other linked page.
• Disclosures should be placed above the fold; scrolling should not be necessary to find the disclosure. (e.g. disclosure should be visible before the jump).
• You must us the tag @measureandmade and must include the required hash tag #measureandmade and #mmperfectfit in a clear and conspicuous manner (for example, in a post on Instagram, the required hash tag must appear “above the fold” within the first three (3) lines of the post).
• Pop-up, hover state and button disclosures are prohibited.
• This disclosure policy applies to all social media, even when space is restricted (e.g., tweets)
• Disclosures should be made in the same medium as the claim (e.g. video, text) For more information about FTC disclosure requirements, please review the FTC's "Dot Com Disclosures" Agreement at http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf (example 21) and the FTC's Endorsement Agreement at http://business.ftc.gov/advertising-and-marketing/endorsements If you engage in so called “native advertising”, you further agree to comply with the FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements at https://www.ftc.gov/system/files/documents/public_statements/896923/151222deceptiveenforcement.pdf and the related Agreement.
The above is only intended to provide guidance. It does not purport to provide legal advice and it does not a guarantee that you will be in compliance with the regulations of the FTC. You are advised to obtain your own legal advice on how to comply with the regulations of the FTC or any other laws, regulations of guidelines that apply to your website or any promotional, marketing, endorsement or other activities that you engage in.
19. Term and Termination
The term of this Agreement will begin on our acceptance of your application into the Program and will end when terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by notice to the other party.
We expressly reserve the right to terminate the Program, in whole or in part, at any time for any or no reason as determined by us in our sole discretion.
20. Indemnity
Affiliate shall defend, indemnify and hold harmless PAA and its subsidiaries, affiliates and their officers, directors, employees agents, shareholders, partners, members and other owners against all claims, actions, demands, liabilities, losses, damages, judgements, settlements, costs (including reasonable attorney’s fees) (“Losses”) insofar as such Losses arise out of or are based on (i) any claim that our use of any of your posts violate the intellectual property rights or any other rights of any third party; (ii) any misrepresentation or warranty or breach of a covenant or agreement made by you in this Agreement; (iii) any claim related to your Affiliate Social Platform, including, without limitation its development, operation, maintenance or content not attributable to PAA; or (iv) your negligence, gross negligence or willful misconduct.
21. Independent Contractor Relationship
For purposes of this Agreement, Affiliate will not be considered an agent, employee or representative of PAA and shall remain in all respects an independent contractor. You will have no authority to make or accept any offers or representations on our behalf. Affiliate has no authority to act for or on behalf of PAA or to bind PAA in any legal contracts.
22. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT PAA SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN OR INABILTIY TO PARTICIPATE IN THE PROGRAM (HOWEVER ARISING, AND REGARDLESS OF THE THEORY OF RECOVERY), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR TOTAL LIABILITY TO AFFILIATE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
23. Disclaimer of Warranty
THE PROGRAM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND. PAA EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM (INCLUDING, WITHOUT
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LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, PAA MAKES AND GIVES NO WARRANTY (i) THAT THE PROGRAM WILL MEET YOUR REQUIREMENTS, (ii) THAT THE PROGRAM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND (iii) THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE PROGRAM WILL MEET YOUR EXPECTATIONS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PROGRAM IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL. PAA FURTHER MAKES NO REPRESENTATION THAT THE OPERATION OF THE MADDEN SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR ANY SUCH INTERRUPTIONS OR ERRORS.
1. INTRODUCTION.
The following affiliate program agreement (“Agreement”) is provided by Park Avenue Apparel LLC (“PAA”) to Affiliate for the PAA Measure & Made Web Affiliate Program (“Program”). Affiliate must agree to abide by the requirements in this Agreement in order to participate in the Program. This Agreement is in addition to Shareasale.com, Inc.’s (“shareasale.com”) Terms of Use, Affiliate Service Agreement and any other agreements between Affiliate and shareasale.com (“Shareasale Agreements”). You agree to comply with the all the terms and conditions of the Shareasale Agreements and agree that any violation or breach of the Shareasale Agreements shall be deemed to be a breach of this Agreement. PAA may amend this Agreement at any time in PAA’s sole discretion by posting a revised version of this Agreement. Continued participation in the Program after the effective date of the revised Agreement constitutes Affiliate’s acceptance of the revised Agreement.
2. DEFINITIONS.
• “Affiliate” refers to the business, individual, or entity applying to or participating in the Program, or that displays PAA’s products and/or promotions on its websites, or other means using an affiliate tracking code in exchange for receiving a commission from PAA from sales directly resulting from such display.
• “Commission Fees” means the amount you will be paid for each Qualified Purchases by a Referred Customer that you refer to PAA and pursuant to the terms of this Agreement.
• “Commission Threshold” means the amount of Commission Fee that an Affiliate may have to first accrue prior to receiving a payment from PAA, as may be determined by PAA at any time in its sole discretion.
• “Products” means a MEASURE & MADE branded product available for purchase from our website.
• “Qualified Purchase” means a sale of Product(s) to a Referred Customer, excluding any Product that is specially designated as a sale, discount or clearance item. For sake of clarity a Qualified Purchase shall only include Products sold to a Referred Customer at
its full retail price or subject to a discount code or price reduction that PAA provides and is applicable to the Program.
• “Referred Customer” means each new and unique customer referred to our website from Affiliate through Links (as defined herein), that provides valid account and billing information and complete a Qualified Purchase.
• “We”, “us”, or “our” refers to PAA and our website.
• “You” or “your” refers to the Affiliate.
• “Our website” refers to the PAA properties located at www.measureandmade.com.
• “Your website” refers to any websites that you will link to our website.
• “Program” refers to the PAA Affiliate Program.
3. ENROLLMENT.
After receiving your application, we will review your website and notify you of your acceptance or rejection into our Program. Please allow up to 48 hours for your application to be reviewed. We reserve the right to reject any application in our sole discretion for any reason. However, we encourage you to contact us if you feel we have made an incorrect decision. Including all of the websites that you use in your profile will help us make a better decision.
4. PROMOTION OF AFFILIATE RELATIONSHIP/USE OFLINKS.
If you qualify and agree to participate as an Affiliate in the Program, we will make a variety of graphic and textual materials and links available to you (“Links”). The Links will serve to identify your website as a member of the Program and will establish a link from your website or e-mail to PAA’s website. You agree to (i) only use Links provided by PAA, (ii) to only use such Links in compliance with all guidelines, instructions or directions from PAA, (iii) to cooperate fully with PAA to establish and maintain such Links, and (iv) to use the Links in compliance with this Agreement at all times. PAA may modify the Links from time to time in its sole discretion. You shall not use any graphic or textual images or text to promote PAA or the Products that are not approved, in
writing in advance, by PAA. For avoidance of doubt, any information regarding PAA displayed on your website must be preapproved by PAA in writing.
You are granted a limited, non-exclusive, non-transferrable, revocable, license to use and display the Links, to access our website through the Links and to use any other trademark or logo as provided to you by PAA (the “Licensed Materials”) for the sole purpose of your participation as an Affiliate in the Program. You are only entitled to use the Licensed Materials while you are an Affiliate in good standing and in strict compliance with this agreement and the Shareasale Agreements. You are not permitted to use the Licensed Materials for any purpose other than you participation as an Affiliate in the Program.
DISCLAIMER:
Except as permitted herein, you shall not (i) use any Licensed Materials or other of PAA’s trademarks, trade names or other intellectual property, or any variations or misspellings thereof or any terms which in PAA’s sole discretion are confusingly similar with any of the foregoing (“PAAIP”) without PAA’s express written permission, (ii) use any PAAIP in a domain, website or social media name, in any bids for keywords or Google Ad words (or similar programs at other search engines), in any search engine advertising (paid or otherwise), in any meta tags, Google Adwords (or similar programs at other search engines), key words, advertising, search terms, code, or otherwise, (iii) act in any way that causes or creates or could cause or create any “initial interest confusion” over the use of PAAIP on the internet or in any search engine advertising. Your use of PAAIP in any manner, other than as expressly permitted in this Agreement or the Shareasale Agreements shall constitute unlawful infringement of PAA’s intellectual property rights, and may subject You to claims for damages and other legal and equitable claims for relief.
RESTRICTIONS ON USE OF MEASURE & MADE
Affiliate expressly agrees to the following:
• Affiliate must always indicate that “Measure & Made is powered by Fitlogic®, a patented personal sizing system that focuses on body shape and not just size.”
• Never to refer to or indicate that any Measure & Made product is “custom made.” Instead, Measure & Made products may be referred to as “personalized” or “custom-like.”
5. WEBSITE RESTRICTIONS.
Your participating website(s) may not, as determined in our sole discretion: (i) infringe on our or any anyone else’s intellectual property, publicity, privacy or any other rights; (ii) violate any law, rule or regulation; (iii) contain any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contains nudity, pornography or sexually explicit materials; (iv) contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information; (v) contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate commissions from another website and (vi) must comply with all applicable privacy laws and regulations.
6. LINKING TO OUR WEBSITE.
Upon acceptance into the Program, Links will be made available to you through an affiliate interface. Your acceptance in our program means you agree to and abide by the following:
• You will only use Links and linking codes obtained from the affiliate interface without manipulation.
• All domains that use your affiliate link must be listed in your affiliate profile.
• Your website will not in any way copy, resemble, or mirror the look and feel of our website. You will also not use any means to create the impression that your website is our website or any part of our website including, without limitation, framing of our website in any manner.
• You may not engage in cookie stuffing or include pop-ups, false or misleading links on your website. In addition, wherever possible, you will not attempt to mask the referring url information (i.e. the page from where the click is originating).
• Using redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that domain is prohibited. If you are found redirecting links to hide or manipulate their original source, your current and past commissions will be voided or your commission level will be set to $0. This does not include using “out” redirects from the same domain where the affiliate link is placed.
7. PAY-PER-CLICK ADVERTISING AGREEMENT
If you are enrolled in our Program and participate in a pay-per-click (“PPC”) advertising, you must adhere to our advertising agreement as follows:
• You may not bid on any of our trademarks (which are identified below), including any variations or misspellings thereof for search or content based campaigns on Google, MSN, Yahoo, Facebook or any other network.
• You may not use our trademarks in sequence with any other keyword (i.e. MEASURE & MADE Coupons).
• You may not use our trademarks in your ad title, ad copy, display name or as the display url.
• You may not direct link to our website from any PPC ad or use redirects that yield the same result. Affiliate links must be directed to an actual page on your website.
• You may not bid in any manner appearing higher than PAA for any search term in position 1-5 in any auction style pay-per-click advertising program. If you automate your PPC campaigns, it is your responsibility to exclude our trademarked terms from your program and we strongly suggest you add our trademarked terms as negative keywords. We have a strict no tolerance policy on PPC trademark bidding. You will forfeit all commissions for a minimum of the past 30 days and your commission will be set to $0 without warning if you engage in PPC trademark bidding that uses our trademarked terms.
Trademarks: MEASURE & MADE; PARK AVENUE APPAREL; TAKE BACK YOUR CLOSET; PERFECT FIT CHALLENGE; ONE FIT WONDER; FITLOGIC.
8. COUPON AGREEMENT
If you are enrolled in our Program and your website promotes coupon codes, you must adhere to our coupon agreement as follows:
• You may NOT post any refunds, credits or discounts on PAA’s Products that have not been preapproved by PAA in each instance.
• You may ONLY advertise coupon or discount codes that are provided to you through the Program.
• Posting any information about how to work around the requirements of a coupon/promotion (i.e. first time customers only) will result in removal from the Program.
• Coupons must be displayed in their entirety with the full offer, valid expiration date and code.
• You may NOT use any technology that covers up the coupon code and generates the affiliate click by revealing the code(s).
• You may NOT advertise coupon codes obtained from any non-affiliate marketing channel, including coupon codes from our email, paid search or any other non-affiliate advertising campaigns.
• You may NOT give the appearance that any ongoing offer requires clicking from your website in order to redeem. For example, if all items on the site have free shipping over $100, you may not turn this into an offer that infers that the customer must click from your site to get this deal. Additionally, if your website ranks on the first page of Google for terms related to our website or company name(s) combined with the words coupon, coupons, coupon code, promo code, etc. and/or your conversion rate exceeds 25%, you may be offered a lower commission than our standard rate to offset the reduced profitability of orders.
• Any violations of the terms of the Program concerning links, coupons, refunds, credits or discounts shall constitute a material breach of this Agreement, and may result in your termination from the Program or the withholding of commissions.
9. COUPON ATTRIBUTION & AUTHENTICATION
Affiliates whose primary business is posting coupons, who are viewed by the program as being a coupon site, and/or who are tagged as coupon in our system, may not be paid commissions for sales generated without a corresponding valid coupon code. Valid codes are defined as codes that are made available to the affiliate channel in general, through newsletters or the Deals Database in shareasale.com, and directly or privately to affiliates. Coupon codes that are not real, expired, not specific (i.e. up to 40% off sale items) or are long-term site wide offers that do not require a code may not be considered valid codes and the affiliate will not be given commission on these orders.
10. SUB-AFFILIATE NETWORKS
Promoting PAA through a sub-affiliate network is permitted, however you must be completely transparent with regards to where traffic from your sub-affiliates originated. Sub-affiliate networks must ensure that all sub-affiliates promoting the Program adhere to our program terms and conditions. This includes restrictions on advertising through toolbars, browser extensions, and through any paid placements such as pay-per-click campaigns. Sub-affiliate networks must also receive approval prior to allowing any type of coupon sub-affiliate to promote the PAA program. Failure to comply with our sub-affiliate network terms may result in a loss and/or reduction of commissions from sales made through any sub-affiliate that does not comply with our program terms.
11. DOMAIN NAMES
Use of any of our trademarked terms as part of the domain or sub-domain for your website is strictly prohibited.
12. ADVERTISING & PUBLICITY
You shall not create, publish, distribute, or print any written material (electronic or otherwise) that makes reference to our Program without first submitting such material to us and receiving our prior written consent. If you intend to promote our Program via e-mail campaigns, you must adhere to the following:
• Abide by the CAN-SPAM Act of 2003 (Public Law No. 108-187) with respect to our Program.
• E-mail must be sent on your behalf and must not imply that the e-mail is being sent on behalf of PAA.
• E-mails shall not use any PAA Links, trademarks, tradenames, or other intellectual property owned by PAA which has not been approved by PAA in advance and such materials may only be used in strict compliance with all guidelines, instructions and directions from PAA.
• E-mails must first be submitted to us for approval prior to being sent or we must be sent a copy of the e-mail.
13. SOCIAL MEDIA
Promotion on Facebook, Twitter, Instagram and other social media platforms (“Social Media Platforms”) is permitted following these general rules:
• You ARE ALLOWED to promote offers to your own lists; more specifically, you’re welcome to use your affiliate links on your social media platforms. For example: You may post, “25% off sale at MEASURE & MADE through Wednesday with code PAA25.”
• You ARE PROHIBITED from posting your affiliate links on PPA’S Social Media Platforms in an attempt to turn those links into affiliate sales.
• You ARE PROHIBITED from creating any social media platforms or accounts that include any trademark owned by PPA in the page name or username.
• You may not mention, reference or show any other brand other than Measure & Made in any post.
14. OPERATIONS OUTSIDE UNITED STATES
If you are conducting business in or taking orders from persons in other countries, you will follow the laws of those countries. For example, you will comply with the European Union’s Privacy and Electronic Communications Directive if you are conducting business in or taking orders from persons in one or more of the European Union countries.
15. REVERSAL & COMMUNICATION POLICY
PAA strives for a very low reversal rate. However, we reserve the right to reverse orders due to order cancellations, duplicate tracking, returns, disputed charges, and program violations as outlined in this Agreement. Additionally, if we ask you for clarification or more information on any orders or clicks that we suspect may be in violation of our terms and conditions, we expect that you will respond in a timely and honest manner. Below are violations of our communications policy.
• You are not forthcoming, intentionally vague or are found to be lying.
• You are not responsive within a reasonable time period or we are not able to contact you using the contact information you provided in your network profile.
• You cannot substantiate or validate the source of your traffic to our Program with clear and demonstrable proof.
If any of the above applies, we reserve the absolute right to reverse orders, set your commission to $0 or suspend you from the Program. We know that many violations are a result of automated processes; however it is incumbent upon each Affiliate to ensure that it has the appropriate checks and balances in place to pro-actively address these issues and adhere to our program rules.
16. Commission Fee Determination; Qualified Purchases
• We will pay Affiliate a Commission Fees based on the number of Qualified Purchases generated by a Link.
• The Commission Fee shall be twenty percent (20%) if the Net Sales of each Qualified Purchase. “Net Sales” means the actual purchase price paid by a Referred Customer for a Qualified Purchase, less deductions for customer shipping and handling fees, credit card and other payment processing fees, returns and sales taxes, if any. The Commission Fee may change from time to time in PAA’s sole discretion.
• A “Qualified Purchase” does not include: (i) a purchase by a Referred Customer that is subject to a refund; (ii) a purchase that was completed prior to Affiliate joining the Program or was not tracked properly through an Affiliate Link; (iii) a purchase
that PAA suspects, in its sole discretion, is the result of fraud, which shall include, but is not limited to, the use of software that generates real and fictitious information, multiple accounts from the same customer, or the referral of accounts that do not comply with this Agreement; (iv) a purchase made by an Affiliate through its own Link; or (v) a purchase by a Referred Customer if the Referred Customer was offered or received coupons, refunds, credits or discounts not approved in advance by PAA.
• We reserve the right to withhold payment of Commission Fees to an Affiliate who has commissions that are potentially fraudulent as determined by us in our sole discretion, to determine the legitimacy of the Referred Customer.
• We reserve the right to suspend payment of Commission Fees at any time and indefinitely, if we suspect fraud or other improper activity or a potential breach of any of the terms of this Agreement by Affiliate or Referred Customer. We also reserve the right to deduct from Affiliate’s current or future Commission Fees any and all Commission Fees paid corresponding to any fraudulent, questionable or canceled purchases.
• We reserve the right to immediately cancel or withhold for later review Commission Fees that fail to meet the criteria of a “Qualified Purchase.”
• Any attempt by Affiliate to manipulate or artificially inflate Referred Customers, Qualified Purchases or Commission Fees or to defraud PAA or any violation of the terms of this Agreement or the Shareasale Agreements constitutes immediate grounds for us to terminate you from participating in the Program and will result in the forfeiture of any Commission Fees due Affiliate.
17. Accrual and Payment of Commission Fees
• Commission Fees may not be paid to Affiliate for amounts less than the Commission Threshold of $50.00 USD. Any Commission Fees earned by Affiliate that are less than the Commission Threshold will carry over into the next payment cycle. In such case, when your Commission Fees total reaches $50.00 or more, you will be sent a payment pursuant to the terms of this Agreement, provided all Qualified Purchases associated therewith meet the conditions set forth in this Agreement. For sake of clarity, once you have qualified for a payment pursuant to the terms of this section and payment has been rendered, you will not be entitled to future payment of any Commission Fees unless and until you have again reached or exceeded the Commission Threshold each time. If you have not reached or
exceeded the Commission Threshold in any consecutive twelve (12) month period, the Commission Fees earned by Affiliate during such period will no longer carry over into the next payment cycle, no payment will be made thereon and any such Commission Fees will be forfeited and reset to zero.
• Commission Fees are based on a sixty (60) day “tracking gap” as defined in the Shareasale Agreements and will be paid no later than sixty (60) days from the date PAA receives payment for a Qualified Purchase
• Payment of Commission Fees will be made through shareasale.com. We are not responsible for paying any third party fees charges by shareasale.com or any other payment processor in order for you to receive your Commission Fees.
• We reserve the right, in our discretion, to change or modify the available commission payment methods or payment schedule at any time. You will be notified by us of any such changes, which shall take effect when posted on our site.
• Affiliate acknowledges and agrees that we may fulfill our payment obligations under this Agreement through a third party service or vendor.
• We do not make any guarantee of a minimum amount of Qualified Purchases or that Affiliate will earn any amount of Commission Fees.
18. FTC DISCLOSURE REQUIREMENTS
It is the intent of PAA to treat all customers fairly. Accordingly, we require all Affiliates to comply with all applicable laws, regulations and guidelines concerning advertising and marketing, including, without limitation the Federal Trade Commission (“FTC”) Endorsement Guides, which require material connections between advertisers and endorsers to be disclosed. This means you must include a disclosure statement within any and all pages, blog/posts, or social media posts where affiliate links for our Program are posted as an endorsement or review, and where it is not clear that the link is a paid advertisement. This disclosure statement should be clear and concise, stating that we are compensating you for your review or endorsement. If you received the product for free from us or from the affiliate management team for review, this also must be clearly stated in your disclosure.
• Disclosures must be made at the beginning of the claims and may not appear solely in a “Terms of Use”, “Legal”, “About Us” or other linked page.
• Disclosures should be placed above the fold; scrolling should not be necessary to find the disclosure. (e.g. disclosure should be visible before the jump).
• You must us the tag @measureandmade and must include the required hash tag #measureandmade and #mmperfectfit in a clear and conspicuous manner (for example, in a post on Instagram, the required hash tag must appear “above the fold” within the first three (3) lines of the post).
• Pop-up, hover state and button disclosures are prohibited.
• This disclosure policy applies to all social media, even when space is restricted (e.g., tweets)
• Disclosures should be made in the same medium as the claim (e.g. video, text) For more information about FTC disclosure requirements, please review the FTC's "Dot Com Disclosures" Agreement at http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf (example 21) and the FTC's Endorsement Agreement at http://business.ftc.gov/advertising-and-marketing/endorsements If you engage in so called “native advertising”, you further agree to comply with the FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements at https://www.ftc.gov/system/files/documents/public_statements/896923/151222deceptiveenforcement.pdf and the related Agreement.
The above is only intended to provide guidance. It does not purport to provide legal advice and it does not a guarantee that you will be in compliance with the regulations of the FTC. You are advised to obtain your own legal advice on how to comply with the regulations of the FTC or any other laws, regulations of guidelines that apply to your website or any promotional, marketing, endorsement or other activities that you engage in.
19. Term and Termination
The term of this Agreement will begin on our acceptance of your application into the Program and will end when terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by notice to the other party.
We expressly reserve the right to terminate the Program, in whole or in part, at any time for any or no reason as determined by us in our sole discretion.
20. Indemnity
Affiliate shall defend, indemnify and hold harmless PAA and its subsidiaries, affiliates and their officers, directors, employees agents, shareholders, partners, members and other owners against all claims, actions, demands, liabilities, losses, damages, judgements, settlements, costs (including reasonable attorney’s fees) (“Losses”) insofar as such Losses arise out of or are based on (i) any claim that our use of any of your posts violate the intellectual property rights or any other rights of any third party; (ii) any misrepresentation or warranty or breach of a covenant or agreement made by you in this Agreement; (iii) any claim related to your Affiliate Social Platform, including, without limitation its development, operation, maintenance or content not attributable to PAA; or (iv) your negligence, gross negligence or willful misconduct.
21. Independent Contractor Relationship
For purposes of this Agreement, Affiliate will not be considered an agent, employee or representative of PAA and shall remain in all respects an independent contractor. You will have no authority to make or accept any offers or representations on our behalf. Affiliate has no authority to act for or on behalf of PAA or to bind PAA in any legal contracts.
22. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT PAA SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN OR INABILTIY TO PARTICIPATE IN THE PROGRAM (HOWEVER ARISING, AND REGARDLESS OF THE THEORY OF RECOVERY), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR TOTAL LIABILITY TO AFFILIATE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
23. Disclaimer of Warranty
THE PROGRAM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND. PAA EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM (INCLUDING, WITHOUT
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LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, PAA MAKES AND GIVES NO WARRANTY (i) THAT THE PROGRAM WILL MEET YOUR REQUIREMENTS, (ii) THAT THE PROGRAM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND (iii) THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE PROGRAM WILL MEET YOUR EXPECTATIONS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PROGRAM IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL. PAA FURTHER MAKES NO REPRESENTATION THAT THE OPERATION OF THE MADDEN SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR ANY SUCH INTERRUPTIONS OR ERRORS.