BOOKSHOP
TERMS AND CONDITIONS OF AFFILIATE PROGRAM
Last Updated: 4/15/2020
Bookshop, Inc. (“Bookshop”) is a public benefit corporation that provides independently owned booksellers, industry partners, and conscious consumers with a direct-to-consumer e-commerce solution competitive to that of major retailers. Bookshop offers an affiliate marketing program (the “Affiliate Program”) for the American Booksellers Association, media outlets, and authors, among others, by making available various approved communications materials to promote sales on Bookshop.org (together with all of its features and content and related or commonly-owned or controlled websites, the “Website”).
By registering for the Affiliate Program on the Website, each eligible Person (each, a “Platform Affiliate”) agrees to these Terms and Conditions of Affiliate Program, as may be amended from time to time (“Affiliate Terms”), which incorporate by reference Bookshop’s Terms and Conditions of Use (“Terms of Use”). These Affiliate Terms are supplementary to the Terms of Use, but in the event of a conflict, the terms of these Affiliate Terms shall prevail with respect the subject matter hereof. Capitalized terms used herein but not otherwise defined shall have the respective meanings assigned to such terms in the Terms of Use.
Eligibility for Affiliate Program
To register as and maintain status as a Platform Affiliate, a Platform Affiliate must (i) be accepted by Bookshop and (ii) not be under any obligation or commitment, whether contractual or otherwise, inconsistent with its obligations under these Affiliate Terms. Bookshop reserves the right to refuse or terminate any applicant or registrant for failure to meet such eligibility requirements at any time. If requests for documentation are not responded to in a timely manner, Bookshop reserves the right to terminate, deactivate, or deny an existing or applicant Affiliate.
Enrollment in Affiliate Program
In order become a Platform Affiliate, an eligible Person must register and create an Account (as defined in the Terms of Use). Each Platform Affiliate may create only (1) unique master Account and shall only permit its authorized personnel as authorized users of the Account and may maintain one or more subordinate Accounts for one or more such authorized personnel to manage its participation in the Affiliate Program. Each Platform Affiliate shall reasonably restrict access to those Persons who have a need to access the Account to participate in the Affiliate Program. For the avoidance of doubt, all other terms applicable to User Accounts as set forth in the Terms of Use shall apply. Each Affiliate agrees that it will be liable for all activities that occur under its Account, even if such activities were not committed by the Affiliate or under its master Account. Bookshop is not responsible for any loss or damage as a result of someone else using your Account, Registration Data, or password, with or without your knowledge.
Shared Revenues for Sales Through Marketplace
In consideration for participating in the Affiliate Program, Bookshop shall pay Platform Affiliates ten percent (10%) of Revenues generated by such Platform Affiliate through its participation in the Affiliate Program whenever such accrued amounts equal or exceed Twenty U.S. Dollars ($20.00) (“Shared Revenues”). For purposes hereof, “Revenue” shall mean all gross receipts derived and actually received by, or irrevocably credited to and redeemed by, Bookshop from its sales made to Customers on or through the Website and tracked over a forty-eight (48) hour period and credited to the Platform Affiliate through its use of Affiliate Materials less applicable taxes but without any deductions for costs incurred in the sale, advertising, promotion, distribution, shipping, storage, and other transportation of such products. BOOKSHOP DOES NOT MAKE ANY REPRESENTATION OR WARRANTY TO ANY PLATFORM AFFILIATE REGARDING THE AMOUNT OF SHARED REVENUES, IF ANY, THAT MAY BE REALIZED HEREUNDER OR GUARANTEE ANY MINIMUM AMOUNT OF SHARED REVENUES.
Bookshop shall remit Shared Revenues to each Platform Affiliate either, by default, by direct deposit into its Stripe Connect https://stripe.com/connect account or, if requested, by issuing a check made payable to the applicable Platform Affiliate. A Platform Affiliate’s Account must contain accurate and up-to-date payment information, and Bookshop shall not be held liable for its inability to remit such funds as a result of incomplete payment information. If Bookshop cannot settle funds into a Platform Affiliate’s account after the period of time set forth by its state, country, or other government authority in its unclaimed property laws, Bookshop may process the funds due to such Platform Affiliate in accordance with Bookshop’s legal obligations, including by submitting those funds to the appropriate government authority as required by applicable law. Each Platform Affiliate will pay all taxes for which it is responsible under any applicable law or regulation when such taxes are due.
Pricing Merchandise in the Marketplace
Each Platform Affiliate and Bookshop acknowledge that Bookshop provides Platform Affiliates the Website for purposes of interacting socially with its customers and the public generally, and that merchandise shall be priced, sold and delivered solely by Bookshop. Bookshop shall not engage in deceptive trade practices.
Platform Affiliate Marketing Materials
Each Platform Affiliate may from time to time receive from Bookshop various approved communications materials to promote traffic to the Website and sales of Merchandise on the Website, including, but not limited to, unique “tagged” and formatted URL links to permit accurate tracking, reporting, and compensation, banner advertisements, web-based or click-through coupons, buttons, etc. (“Affiliate Materials”). Platform Affiliates may choose to use the Affiliate Materials in their sole discretion. No Platform Affiliate may edit, modify, or alter Affiliate Materials or the contents thereof without the written approval of Bookshop.
License for Commercial Use of the Affiliate Materials
The License granted to Users in the Terms of Use shall expressly permit each Affiliate to use the Affiliate Materials, including all Trademarks contained therein, for commercial purposes solely in connection with its participation in the Affiliate Program and promotion of the Website and sales thereon but for no other purposes.
Marketing
Each Platform Affiliate shall bear its own costs and expenses related to its participation in the Affiliate Program and the marketing and promoting of the Website. Bookshop is not obligated to reimburse or credit any Platform Affiliate for any marketing expenses. If Bookshop does reimburse a Platform Affiliate for any marketing expenses, such reimbursement shall not create a duty or obligation to reimburse any future marketing expenses.
Indemnification
Platform Affiliate and Bookshop (each, an “Indemnifying Party”) shall indemnify, defend and hold harmless the other and their respective officers, directors, employees, contractors, representatives, successors and assigns (collectively, the “Indemnified Party”) from and against any liabilities, claims, costs, damages, demands, causes of action, proceedings or other actions, reasonable settlements, and expenses (including, without limitation, reasonable outside attorneys’ fees and court costs), whether at law or in equity, brought or asserted by a third party against any Indemnified Party (each, a “Claim”) arising out of, related to, or based upon any allegation that the Indemnifying Party’s intellectual property infringes or constitutes misappropriation of any patent, copyright, trade secret, trademark or other right of a third party. The Indemnified Party shall (i) promptly notify the Indemnifying Party in writing of any such Claim (a delay in such notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such delay prejudices the defense of such Claim) and give the Indemnifying Party the opportunity to defend or settle any such Claim at the Indemnifying Party’s sole cost and expense and (ii) cooperate with the Indemnifying Party, at the Indemnifying Party’s sole cost and expense, in defending or settling such Claim. The Indemnifying Party shall promptly undertake to discharge its obligations hereunder and shall employ counsel reasonably acceptable to the Indemnified Party to defend any such Claim asserted against the Indemnified Party; provided, the Indemnifying Party may not settle any Claim in a manner that adversely affects any Indemnified Party without such Indemnified Party’s prior written consent (which shall not be unreasonably withheld or delayed). The Indemnified Party shall have the right to participate in the defense of any Claim at its sole cost and expense.
In addition to the foregoing, if any of the Indemnifying Party’s intellectual property become the subject of a Claim of infringement or misappropriation, then the Indemnifying Party’s shall, at its expense and each Indemnifying Party’s option: (a) procure the rights in the infringing item or service; (b) replace or modify such service, product or item so that it becomes non-infringing or no longer misappropriates in such a manner that does not degrade functionality or disrupt Indemnified Party’s business; or (c) adequately compensate Indemnified Party’s for the infringing services, product or item whose value is diminished as a result of such infringement.
Limitation on Affiliate Materials and Website Use
In addition to the limitations on use of the Website as set forth in the Terms of Use, a Platform Affiliate may not:
Knowingly and intentionally communicate or distribute information in connection with the Affiliate Program that is defamatory, profane, infringing, obscene, unlawful, offensive, and/or harmful, including, but not limited to, content that advocates, endorses, condones, or promotes racism, bigotry, hatred, or physical harm of any kind against any individual or group of individuals, or that provides materials or access to materials that exploit people under the age of eighteen (18) in an abusive, violent, or sexual manner;
Knowingly and intentionally communicate or distribute information in connection with the Affiliate Program that contains material that violates the intellectual property rights (or rights of privacy or publicity) of any third-party Person or for which the Platform Affiliate has not obtained the necessary rights or permissions to use accordingly;
Knowingly and intentionally engaging in any marketing activity that may harm the reputation or credibility of Bookshop;
Imply that any Person other than the Platform Affiliate is the sender of any marketing communications related to the promotion of the Marketplace;
Knowingly and intentionally engaging in any marketing or promotional activities that violate applicable laws, rules, or regulations, including sending any email in violation of the federal CAN-SPAM Act of 2003;
Forward pyramid schemes or chain letters;
Knowingly impersonate another Platform Affiliate or User or knowingly allow any other Person to use your identification or Account;
Knowingly and intentionally restrict or inhibit any other Platform Affiliate from participating in the Affiliate Program; or
Cause or induce any Person to engage in the restricted activities above.
Confidentiality
For purposes of this Agreement, “Confidential Information” means any non-public or proprietary information or material of either Bookshop or a Platform Affiliate or their respective present and future parent, subsidiary, and affiliate companies or any of their respective present and future officers, directors, stockholders, members, managers, partners, employees, contractors, affiliates, content partners, vendors, third-party licensors, distributors, advertisers, other contracting parties, agents, representatives, successors, and permitted assigns (collectively, “Representatives,” and together with such party, the “Disclosing Party”) disclosed to, received by, or obtained from any source or Person and in any form by the other Party or its Representatives (together, the “Receiving Party”) or pursuant to or as a result of Platform Affiliate’s participation in the Affiliate Program, which should by its nature reasonably be known to be confidential, whether or not marked as confidential. Without limiting the foregoing, a Disclosing Party’s Confidential Information includes, whether or not designated, all trade secrets, technical and non-technical data, processes, business practices, intellectual property, plans or proposals, financial information, information relating to actual or potential customers or suppliers or employees or other personnel, personally identifiable information (however such term or similar term is defined under applicable law), sales and marketing information, training and operations materials, and pricing and other financial information relating to the business or affairs of the Disclosing Party or its affiliates. Confidential Information does not include information that (i) is or becomes public knowledge through no act, omission or breach of this Agreement by the Receiving Party; (ii) is received by the Receiving Party from a third party not known by the Receiving Party to be under a duty of confidence to the Disclosing Party; or (iii) is already rightfully known without confidentiality restriction or is independently developed by the Receiving Party without use of Confidential Information. The Receiving Party will not, without the prior written consent of the Disclosing Party, disclose or use the Confidential Information for its own purposes except as expressly permitted by, or required to achieve the purposes of, these Affiliate Terms. Each Receiving Party will take all reasonable precautions to protect Confidential Information directly disclosed to it by the Disclosing Party, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required (y) to its Representatives with a need to know in connection with these Affiliate Terms or Platform Affiliate’s participation in the Affiliate Program and who are bound by non-disclosure terms substantially similar hereto or (z) by operation of law or order of a court or governmental agency, or if necessary in any proceeding to establish rights or obligations hereunder, with reasonable prior written notice to the Disclosing Party (unless legally prohibited) sufficient to permit the Disclosing Party an opportunity to contest or limit the nature of such disclosure at its sole cost and expense. Upon request of the Disclosing Party, the Receiving Party shall return or destroy (and, upon request, certify to the destruction of) all Disclosing Party’s Confidential Information in the possession or under the control of the Receiving Party, except to the extent subject to a continuing license, and all copies of such Confidential Information.
Bookshop and each Platform Affiliate acknowledge that monetary damages would not be a sufficient remedy for any breach of the confidentiality provisions contained herein and, consequently, if a Receiving Party breaches or threatens to breach such provisions, the applicable Disclosing Party will have the right to equitable relief, including injunctive relief or specific performance or both, from a court of competent jurisdiction without posting bond, in addition to any other remedies to which such Disclosing Party may be entitled at law, in equity, or under these Affiliate Terms or the Terms of Use. Notwithstanding anything in either these Affiliate Terms or the Terms of Use to the contrary, any breach of the confidentiality provisions contained herein shall not be subject to the limitation of liability set forth in the Terms of Use.
Termination
Notwithstanding anything in either these Affiliate Terms or the Terms of Use to the contrary and in addition to all other remedies available under these Affiliate Terms, either Bookshop or a Platform Affiliate may terminate such Platform Affiliate’s participation in the Affiliate Program at any time, for any reason or no reason, with or without cause. Upon termination, (i) all earned but unpaid Shared Revenues due and owing to the Platform Affiliate as of the effective date of termination shall be accelerated and shall become due and payable within thirty (30) days thereof unless such Platform Affiliate is in breach of the terms hereof, in which case Bookshop may withhold any such accrued Shared Revenues until such time as such breach is cured; (ii) all rights granted or licensed hereunder or under the Terms of Use shall immediately terminate and revert the grantor or licensor; and (iii) Bookshop and the Platform Affiliate shall immediately discontinue any and all representations or statements from which it might be inferred that any relationship exists between Bookshop and such Platform Affiliate, including use of the Affiliate Materials.
Relationship Between Platform Affiliates and Bookshop
These Affiliate Terms shall not be deemed or construed in any manner as creating any employment, partnership, joint venture, employment, agency, fiduciary, or other similar relationship. No party is a representative or agent of the other or shall so hold itself out publicly or to any third party or incur any liability for the other party.
Acceptance of Affiliate Terms; Changes to Affiliate Terms
By registering for and participating in the Affiliate Program, each Platform Affiliate is deemed to have accepted these Affiliate Terms. Bookshop may change or amend these Affiliate Terms at any time upon notice to each Platform Affiliate. The observance of any provision of these Affiliate Terms may be waived (either generally or in any particular instance, retroactively or prospectively) only with the written consent of the waiving party. Any party’s failure to enforce its rights under these Affiliate Terms at any time for any period will not be construed as a waiver of such rights. Bookshop and each Platform Affiliates agree that all agreements, notices, disclosures, and other communications provided electronically satisfy any legal requirement that such communications be in writing.
