If you are a member of The BrillKids Community, you only need to read and agree to this Agreement. If you are not a member of The BrillKids Community, you must complete a registration form to join The BrillKids Community and then read and agree to this Agreement. BrillKids will evaluate your registration form and notify you whether you and/or your website ("Site") is accepted for participation in the BrillKids Affiliate Program ("Program). We may reject your application after initial approval if we determine (in our sole discretion) that you and/or your Site is unsuitable for the Program.
Unsuitable sites include, but are not limited to, those that:
This agreement governs participation in the BrillKids Affiliate Program only.
Once you are accepted into the Program, you will be able to participate in the Program subject to the terms and conditions of this Agreement. You should also note that if you are accepted to participate in the Program and your Site is thereafter determined (in our sole discretion) to be unsuitable based on the criteria herein for the Program, we may terminate this Agreement.
MASTER AGREEMENT
This Master Agreement ("Agreement") is made between BrillKids Inc. ("BrillKids") and you ("Affiliate").
BACKGROUND
The Affiliate is registered as a member of The BrillKids Community.
Affiliate and BrillKids each desire to establish the general terms and conditions that shall govern advertising and commission arrangements between Affiliate and BrillKids resulting from Affiliate's participation in The BrillKids Community.
TERMS AND CONDITIONS
In consideration of the promises set forth below, BrillKids and Affiliate agree as follows:
1. PRICING, OFFERS AND ENGAGEMENTS.
1.1. From time to time, BrillKids may post on The BrillKids Community offers to pay to other participants a specified commission in return for certain advertising services leading to a Qualifying Link, as defined in Section 3.2 below. If such offers receive an identification number from The BrillKids Community, they shall be deemed to be an "Offer" for purposes of this Agreement. The term "Offer" shall also include any counter-offers resulting from an Offer.
1.2. If an Offer made by one party is accepted by the other party in accordance with the Offer's terms via The BrillKids Community, an "Engagement" will have been formed. Each Engagement shall have the same identification number as the original Offer that lead to the Engagement and shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Engagement and the terms of this Agreement, the terms of the Engagement shall govern.
1.3. At any time prior to Affiliate providing a Qualifying Link, BrillKids may with or without notice (a) change, suspend or discontinue any aspect of an Offer or an Engagement or (b) remove, alter, or modify any graphic or banner ad submitted by BrillKids for an Offer or an Engagement. Affiliate agrees to promptly implement any request from BrillKids to remove, alter or modify any graphic or banner ad submitted by BrillKids that is being used by Affiliate as part of an Engagement.
1.4. If the Affiliate creates a public presence (this clause covers online domains and third party sales websites), the Affiliate must follow the retail pricing as shown in the BrillKids Online Store to create a level competition for all affiliates and non-conflict with official partners and distributors.
2. AFFILIATE'S RESPONSIBILITIES.
2.1. Affiliate will link its site to areas within BrillKids's Website or Online Store ("Store") using special URLs specified in the Engagement (the "Required URLs"). Affiliate may post as many links to the Required URLs and the rest of BrillKids as it likes on Affiliate's site. The position, prominence and nature of links on the Affiliate's site shall comply with any requirements specified in the Engagement and this Agreement, but otherwise will be in the discretion of Affiliate.
Affiliate must ensure that the proper graphics are used with the appropriate URLs, and that the URLs link to the correct pages. Affiliate promptly shall remove links to the Required URLs and BrillKids's site upon BrillKids's request.
2.2. Affiliate may not bid on search terms or keywords utilized by any internet search engine or other directory or referral services (e.g. Yahoo Search Marketing, Google, etc. collectively "Search Engines") to return or prompt internet search results if such keyword is, includes, or is confusingly similar to any BrillKids trademark or service mark, (including but not limited to BrillKids, Little Reader, Little Math, BrillKids Store, Little Musician, BrillBaby, ParentWeb and BrillKids Forum). Affiliate may be required to employ negative keyword matching to prevent violation of this guideline. Affiliate may bid on generic search terms (babies, teach baby, baby reading, etc.) from Search Engines provided that Affiliate's search terms, listing titles, and descriptions, and the content of their websites do not violate the copyright or any other rights of BrillKids or third party, as determined by BrillKids at its sole discretion, or otherwise violate the Terms of Service for the Search Engine that will display the advertising.
2.3. Affiliate shall not make any representations, warranties or other statements concerning BrillKids, BrillKids's site, any of BrillKids's products or services, or BrillKids's site policies, except as expressly authorized by the Engagement.
2.4. Affiliate is responsible for notifying BrillKids and The BrillKids Community of any malfunctioning of the Required URLs or other problems with Affiliate's participation in the Engagement.
2.5. Affiliate will not present or use any content at its site, including, without limitation, graphical images, logos, text copy, editorial copy, press releases or marks, that (i) could be interpreted to suggest that such content has been authored or otherwise provided by, or represents the views or opinions of, BrillKids; (ii) is misleading, defamatory, libelous, obscene, or otherwise objectionable; (iii) infringes, derogates, dilutes, or impairs the rights of BrillKids or any third party; (iv) refers to BrillKids but is used as part of a name of a product or service of a company other than BrillKids; or (v) is used in any other manner inconsistent with any term of this Agreement or with any provision of law.
2.6. Affiliate will not engage in deceptive software download or computer settings practices to promote BrillKids, BrillBaby or BrillKids's sites. The prohibited deceptive practices included, but are not limited to, installing software without user knowledge, changing a user's home page without securing user permission, and offering downloadable software that does not install.
3. COMMISSIONS.
3.1. BrillKids agrees to pay Affiliate the commission specified in the Engagement if BrillKids sells to a visitor to BrillKids.com (a "Customer") a product or service that is the subject of the Engagement and if that Customer has accessed BrillKids.com and purchased the product or service via a Qualifying Link.
3.2. A "Qualifying Link" is a link from Affiliate's site to BrillKids.com using one of the Required URLs or any other URL provided by BrillKids for use in The BrillKids Community if it is the last link to BrillKids that the Customer uses during a Session where a sale of a product or a service to Customer occurs. A "Session" is either (a) a period of 72 hours from the time of a Customer's initial contact with BrillKids via a link from the Affiliate's site or the Engagement expires or is terminated or (b) if a Customer links to BrillKids from more than one affiliate site within a 72-hour period, then the period of time beginning from a Customer's initial contact with BrillKids via a link from the Affiliate's site and terminating when the Customer either returns to BrillKids via a link from a site other than Affiliate's site or the Engagement expires or is terminated.
3.3. BrillKids shall have the sole right and responsibility for processing all orders made by Customers. Affiliate acknowledges that all agreements relating to sales to Customers shall be between BrillKids and the Customer.
3.4. All determinations of Qualifying Links and whether a commission is payable will be made by The BrillKids Community and will be final and binding on both BrillKids and Affiliate. Prices for the products will be set solely by BrillKids in its discretion.
3.5. BrillKids Affiliates can earn commissions via PayPal, and commission is may be withdrawn or transferred once a minimum of US$50.00 has been earned by Affiliate.
3.6 Each Referral Sale will have a 30-day guarantee period before it is reflected in actual Earnings Reports - this is to ensure that the buyer does not file for a refund after BrillKids has already paid Affiliate.
4. OWNERSHIP AND LICENSES.
4.1. Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or that it may use or develop in the future.
4.2. BrillKids grants Affiliate a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology provided by BrillKids and posted on The BrillKids Community interface solely for the purpose of creating links from Affiliate's site to BrillKids during Engagements. Except as expressly set forth in this Agreement or permitted by applicable law, Affiliate may not copy, distribute, modify, reverse engineer, or create derivative works from the same. Any good will resulting from Affiliate's use of BrillKids's name, logos, trademarks, service marks and trade dress will inure solely to the benefit of BrillKids and will not create any right, title or interest for Affiliate. Affiliate may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void.
4.3. Affiliate may use only the logos, trademarks, service marks, trade dress, banners, text links, coupon codes, etc. ("Creative") that are provided by BrillKids and posted in the BrillKids Affiliate Program interface. Creative is to be used solely for the purpose of advertising content on BrillKids. Affiliate's use of the Creative shall comply with BrillKids's Identity Guidelines for BrillKids Affiliates as provided by BrillKids, which may change from time to time. Affiliate shall not use the Creative in connection with any activity that disparages BrillKids, or its products or services, or that damages the reputation for quality inherent in the same. The use of Creative that is posted on other sites, found in other emails or other sources, manipulated in any way or derived from any means besides the BrillKids interface is not permitted. If Affiliate does not fully comply with this provision BrillKids may withhold commissions, immediately terminate this Agreement, permanently remove Affiliate from the program, or utilize any remedy otherwise available to it in law or in equity.
4.4. Affiliate's use of BrillKids's name, logos, trademarks, service marks, and trade dress pursuant to Section 4.2 and 4.3 must be in a manner that is clearly less prominent than that of Affiliate's name, logos, trademarks, service marks, trade dress, products and/or site name. Affiliate shall not create or attempt to create an impression that there is an association or affiliation between BrillKids and Affiliate beyond the arrangement outlined in this Agreement.
4.5. Affiliate shall always maintain the quality of its services at a level satisfactory to BrillKids. BrillKids shall at times have the right to review Affiliate's activities related to this Agreement.
4.6. Affiliate shall immediately cease using BrillKids's name, logos, trademarks, service marks, trade dress, proprietary technology and any Creative upon the termination or expiration of this Agreement.
4.7. Affiliate grants BrillKids a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Affiliate solely for co-branding purposes or as a return link from BrillKids's site to Affiliate's site. BrillKids will remove such graphic or banner ad upon Affiliate's request.
5. CONFIDENTIALITY.
5.1. Except as otherwise provided in this Agreement or with our prior written consent, Affiliate agrees that all information including, without limitation, the terms of this Agreement, BrillKids's business and financial information, its customer lists, and its pricing and sales information, shall remain strictly confidential and shall not be utilized, directly or indirectly, by Affiliate 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 Affiliate. Notwithstanding the foregoing, Affiliate may deliver a copy of any such information (a) pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process.
5.2. BrillKids shall own and retain all right, title and interest in all names, addresses and other identifying information of Customers visiting BrillKids's sites ("Customer Data") that BrillKids collects, including without limitation, Customers who access BrillKids's sites through Qualifying Links, and Affiliate shall have no right to use any such Customer Data.
6. PRIVACY.
6.1. Affiliate shall not send out any emails, directly or indirectly, that advertise or promote BrillKids, it products, services, web sites or Offers without BrillKids's prior express written consent and BrillKids's approval of email content in each and every instance. Affiliate emails must comply with the CAN-SPAM Act of 2003 and any comparable laws that apply to the transmission of Affiliate's emails.
6.2. Affiliate shall only send an email or other form of electronic message or advertisement containing BrillKids's name, product or service, web site address, metatag or any other type of identifier to any recipient if the recipient has directly consented to receive such communication from Affiliate or Affiliate has a pre-existing business relationship with the recipient. In addition, Affiliate agrees to provide a recipient of such communication with the ability to "opt out" of further communications from Affiliate by sending an "unsubscribe" email to Affiliate.
7. TERMINATION.
7.1. Either party may terminate any Engagement at any time by deleting their acceptance of the Engagement through The BrillKids Community. Termination of an Engagement shall not terminate this Agreement or any other Engagement.
7.2. Either party may terminate this Agreement at any time, for any reason, provided that they provide at least five day's prior written notice of such termination to the other party and The BrillKids Community. In addition, BrillKids shall be entitled to terminate this Agreement immediately if Affiliate materially breaches or violates any terms or conditions of this Agreement, or if BrillKids determines, in its sole discretion, that there are technical or operational issues (e.g. interruptions caused by or shifts in online/Internet technology) that adversely affect compliance with this Agreement, or that Affiliate obtained orders/referrals fraudulently or through misrepresentation, in which case BrillKids reserves the right to withhold payment of commissions pending an investigation of the suspected fraud or misrepresentation. Termination of this Agreement shall also terminate any outstanding Engagements. However, all rights to payment, causes of action and any provisions that by their terms are intended to survive termination shall survive termination of this Agreement.
7.3. This Agreement shall commence as of the date last executed below and shall terminate as per the terms of sections 4.3 and 7.2 above.
8. REPRESENTATIONS.
8.1. Each party represents to the other that it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby.
8.2. Affiliate represents that: (a) the contents of its website do not (i) infringe on BrillKids's or any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) contain defamatory or libelous material; (iv) contain lewd, pornographic or obscene material; (v) violate any laws regarding unfair competition, antidiscrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, or other similar harmful or deleterious programming routines; and (b) that Affiliate has and complies with a privacy policy that is prominently displayed on its website and in conformity with applicable privacy laws.
8.3. EXCEPT FOR THE ABOVE REPRESENTATIONS, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. INDEMNIFICATION.
9.1. Affiliate agrees to indemnify, defend and hold harmless BrillKids and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.
10. LIMITATION OF LIABILITY.
10.1. Except for Section 9.1 ("Indemnification"), in no event shall either party be liable to the other party for any direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.
11. GENERAL.
11.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
11.2. BrillKids may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement on the BrillKids Site and/or giving you notice of the modification through The BrillKids Community or through a subsequent written agreement between the parties. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, ITS ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. AFFILIATE'S CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING BRILLKIDS'S POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON ITS SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
11.3. This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution may be achieved in any format convenient to the parties. Affiliate will express affirmative acceptance of this Agreement's terms and conditions by so indicating when asked to do so on the BrillKids site, and if requested, on BrillKids's site, or by accepting an Offer, as defined herein.
11.4. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.