Bluefly.com Publisher Program
SPECIAL TERMS & CONDITIONS
These Bluefly.com Terms and Conditions for Commission Junction Network (the "Agreement") are entered into between Bluefly, Inc. and each participating in the Bluefly.com Publisher Program through Commission Junction Network.
- Bluefly, Inc. ("Advertiser" or "Company") operates the Bluefly.com origination Web site. As part of its Web site, Company offers the Bluefly.com Publisher Program ("Program"), through which approved companies operating their own Web sites and/or subscription email services ("Publishers") are granted a limited, non-exclusive right to: (i) advertise and promote Company goods and services and the Company Web site in a manner in compliance with this Agreement and the Publisher Service Agreement "Publisher Service Agreement") between Publisher and Commission Junction, Inc. ("CJ"), (ii) post or circulate an approved graphical or textual internet hyper-link ("Link") to the Company web site, and (iii) direct visitors to the Publisher's Web Site to the web site (the specific URL) designated by Company ("Destination Site"). Both the Company and Publishers are parties to agreements with CJ and are participants in the CJ Network (the "CJ Program"). This Agreement provides terms and conditions applicable to your membership in the Program that are in addition to or modify any terms and conditions that you have agreed to pursuant to your Publisher Service Agreement with CJ ("Publisher Service Agreement"). Any capitalized term herein that is not defined shall have the same meaning as in the Publisher Service Agreement. Company will be deemed a third party beneficiary of all of your obligations under the Publisher Service Agreement.
- Publishers are offered the opportunity to earn a commission on Qualifying Revenue (as hereinafter defined) for referring web surfers to the Publisher's web site (i) who click-on a Tracking Code Link, (ii) go directly to the Destination Site, (iii) complete a purchase during the same session and (iv) did not click on any advertising creative from any third party between the time that they clicked on the Tracking Code Link from Publisher's Web site and the time that they completed the transaction. Any transaction that meets all of the requirements described above is a "Qualifying Purchase." We will not pay referral or other fees on any products that are subsequently purchased after a customer has re-entered the Destination Site other than through a Tracking Code Link from Publisher's Web site, even If the customer previously followed a Tracking Code Link from Publisher's Web site to the Destination site. We reserve the right to reject orders that do not comply with any requirements that we may periodically establish. Publisher may not purchase products during sessions initiated through the Tracking Code Links on its Web site for its own use, resale or commercial use of any kind. This includes orders for customers or on behalf of customers or orders for products to be used by Publisher or its friends, relatives or associates in any manner. Any such purchases may result, in Company's sole discretion, in the withholding of referral fees or the termination of this Agreement. The commission rate will be set forth on the CJ Program Page for Company and may be changed from time to time by Company by posting and notifying Publisher of a different commission rate as appears on the CJ Program Join Program Page. Commissions shall be limited to a maximum of 6% of Qualifying Revenues unless we otherwise agree with you in writing. Payment for this money-making opportunity shall be made by Company through CJ in accordance with the terms of the CJ Program. No long-term commitment is required. For purposes hereof: "Qualifying Revenue" means revenues derived by us from Qualifying Purchases, excluding revenues derived from and costs associated with returns, shipping, handling, gift-wrapping, taxes, customs and duties, service charges, credit card processing fees, bad debt, and promotional discounts as advertised; and a "Tracking Code Link" means a Company advertisement or graphic that includes a tracking code provided by the Company through the Program and links to the Destination Site.
- Participation in the Program is subject to Company's approval. Prospective Publishers must first submit an application to Company through CJ in order to become an "approved" Publisher eligible to post Links to the Destination Site and earn commissions. After the application has been submitted, Company will notify the prospective Publisher through CJ in writing (by e-mail or otherwise) whether or not it has been approved (approval is in Company's sole discretion). Publisher is not authorized to post links to the Destination Site for any Publisher web site that has not been approved in advance by Company (in its sole discretion). Publisher must ensure that each of the links between its Web site and the Destination Site properly use Tracking Code Links. Company will not be liable to Publisher with respect to any failure by Publisher to use Tracking Code Links, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to Publisher pursuant to this Agreement.
- If approved, the Publisher must acknowledge its acceptance of the these Terms and Conditions by clicking-through the acceptance button on this Web page thereby assenting to the Standard Terms and Conditions of the Program between Company and Publisher (also referred to as this "Agreement"). This Agreement shall apply only to approved Publishers who accept the Standard Terms and Conditions of the Program and only Publishers who accept this Agreement may participate in the Program.
- Other than the payment of the commission, Publisher shall have no claims to any additional compensation, commissions or business derived by or through a Destination Site.
- Participation in Program does not constitute an employment, broker or agency relationship between Publisher and Company nor does it create any partnership, joint venture, franchise, or sales representative relationship between the parties.
3. Authorization to Link to the Destination Site.
- Notwithstanding Section 4.1 of your Publisher Service Agreement entitled, "Proprietary Rights and Licenses", Publisher agrees that it is not licensed a revocable, non-transferable, royalty free, international sublicense to display and link to the Destination Site, and all trademarks, service marks, tradenames, and/or copyrighted material ("Content"). Company authorizes Publisher to display Tracking Code Links and to link to Destination Sites. Unless otherwise agreed by Company in writing, notwithstanding anything to the contrary herein, the authority granted by Company to Publisher hereunder will not constitute a license. Publisher may not distribute, license or otherwise use Company's links (and/or Content) unless authorized through Company's Information Page or by Company's written permission.
- Publisher shall not otherwise copy nor modify, in any way, any icons, buttons, banners, graphics files, or Content that Company has made available through the Network Service pursuant to the foregoing arrangement. Publisher may not remove or alter any copyright or trademark notices. If Publisher is licensed Content by Company, then such license is subject to the preceding conditions.
- You agree that Section 4.3 of your Publisher Service Agreement entitled, "Terminating Licenses", does not apply to this Agreement and your participation in the Program. Instead, Publisher agrees that Company may terminate any authority to display or distribute Content and/or Tracking Code Links, as well as any sublicense and/or license, under this Agreement, immediately upon written notice to the authorized party/sublicense/licensee if Company has reasonable concerns that the authorized party/sublicense/licensee is diluting, tarnishing or blurring the value of Company's trademarks, service marks, and/or tradenames, and/or breach of Company's other intellectual property rights.
- Publisher may not generate or send any email messages using or containing Company's name or logo, or any variation thereof, or its related companies' names or logos, or any variation thereof, or any of Advertiser's trademarks or products, without first obtaining in advance Advertiser's express written permission (electronic mail acceptable).
- Publisher may not bid on Company's trademark or any variation thereof in conjunction with search keyword programs. When promoting Company via external paid search engines, which may include, but are not limited to, entities such as Google and Overture, the following guidelines must be followed: (i) Publisher must not give the impression that you are, or represent, Company, through use of phrases such as 'Official Site'; (ii) Publisher may not bid on Company's trademark or any variation thereof in conjunction with search keyword programs. (iii) Publisher must not target the brand names of any entities that are direct competitors of Company, or otherwise engage in marketing practices that are illegal or violate the rights of any third party; (iv) Publisher must ensure that all copy used for search and keyword purposes is appropriate and 100% accurate and does not contain any claims that could be construed to be false or misleading; and (v) Publisher must identify itself as an "Affiliate" in all search keyword listings as well as organic search results. Publisher agrees that, following notice from Company, it will promptly remove any search listing containing copy and/or creative components that Company, in its sole discretion, deems inappropriate for any reason.
- Publisher agrees not to use, register or seek to register any trademark, service mark or domain name that contains the Company's name or words, or any variations, or misspellings of them, or is any way confusingly similar to Bluefly. If you do, you agree to transfer the registrations, at your expense, to Company at Company's request and to cooperate by providing any information, signing any documents and providing appropriate authorizations necessary to accomplish the transfer.
- Publisher may not wrap or frame the Destination Site in any manner or in any way copy or resemble the look and feel of the Destination Site, nor will the Publisher create the impression that the Publisher site is the Destination Site or is a part of the Destination Site.
- If Publisher's site donates any portion of its referral fees to any school, foundation or other charitable organization, Publisher may not state or imply that Company endorses such activities or is responsible in any way for the inclusion and donation of funds to any of the schools, foundations or charities associated with Publisher's site without express written consent from Company (electronic mail acceptable).
- Publisher may not use Company domain name (www.bluefly.com), or any variation thereof, in Publisher's domain name or any other part of Publisher's Universal Record Locator (URL) or in any meta tags or other hidden text without express written consent from Company (electronic mail acceptable). Publisher may not engineer Publisher's site in such a manner that pulls Internet traffic away from Company.
- Company does not allow sites that provide a portion of their commission or Publisher benefits to sites or organizations that violate any of the Prohibited Content.
- Publisher agrees that it will not issue any press release or make any other similar public announcement that in any way makes any reference to Company without prior written consent, which consent may be withheld at our sole discretion.
4. Term and Termination.
- The term of this Agreement shall be continuous, unless and until either party properly terminates this Agreement, in accordance with the following: (i) Company shall provide Publisher with seven (7) days notice, unless terminated earlier as provided for in Section 7(B) below; and (ii) Publisher shall use the automated system within the CJ Network to drop the Program and Publisher shall comply with Section 7(E) (v) below.
- For purposes of notification of termination by Company, delivery via email is considered a written and immediate form of notification.
- Upon any termination of this Agreement, Company and Publisher will be released from all obligations and liabilities to the other party occurring or arising after the date of such termination or the transactions contemplated hereby, except with respect to those obligations which by their nature are designed to survive termination as provided herein; provided that no such termination will relieve Publisher from any liability arising from any breach of this Agreement occurring prior to termination.
- Upon termination of this Agreement, (i) Company's acceptance of additional referrals obtained through Publisher shall not constitute a continuation or renewal of this Agreement or a waiver of such termination, (ii) Publisher shall be entitled only to those unpaid commissions, if valid, earned by Publisher on or prior to the date of termination; (iii) Publisher shall in no event be entitled to commissions with respect to any amount of referrals delivered after the date of termination; (iv) all rights and licensees of Publisher hereunder shall immediately terminate; and (v) Publisher shall cease all uses of any Content, trade names, trademarks, service marks, logos and other designations of Company or the Program.
Publisher hereby agrees to indemnify, defend and hold harmless Company and its related companies, directors, officers, employees and agents, from and against any and all liability, third-party claims, losses, damages, injuries or expenses (including reasonable attorneys' fees), arising out of a breach, or alleged breach, of any of Publisher's representations or obligations herein.
6. Limitation of Liability.
- ADVERTISER'S TOTAL LIABILITY FOR DAMAGES ARISING UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNTS PAID TO PUBLISHER AS FEES HERE UNDER FOR THE
EVENT GIVING RISE TO LIABILITY.
- IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
- NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT WILL NOT APPLY TO CLAIMS, DAMAGES AND OTHER LOSSES ARISING IN CONNECTION WITH (I) THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS; (II) GROSS NEGLIGENCE; OR (III) WILLFUL MISCONDUCT.
7. Policies and Pricing.
Customers who buy products through the Program will be deemed to be Company's customers. Accordingly, all Company rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. Company may change its policies and operating procedures at any time. For example, Company will determine the prices to be charged for products sold under this Program in accordance with its own pricing policies. Product prices and availability may vary from time to time. Company will use commercially reasonable efforts to present accurate information, but cannot guarantee the availability or price of any particular product. If Publisher offers its users an incentive, discount, cash-back on purchases program or similar program based on the user's purchase through the Program, it shall be solely Publisher's obligation to that user to make payments pursuant to that program. Publisher's sole obligation shall be to pay earned fees to Publisher as stated in this Agreement. At Company's discretion, Company may offer affiliate-wide promotional codes that Publisher can post on Publisher's site. Publisher shall only post promotional codes that are either (a) affiliate-wide or (b) specific for Publisher's site. Publisher may not post promotional codes that are not for Publisher's use. Should Publisher post promotional codes that are not for Publisher's use, Company has the right to withhold referral fees and remove Publisher from Company's affiliate program.
8. Customer and Sales Information.
Company will own all right, title, and interest (including all intellectual property rights) in and to all information that is created or collected in connection with this Agreement, including, without limitation, (a) any contact information collected from any customer who enters the Destination Site from a Tracking Code Link from Publisher's Web site ("Affiliate Customers"); and (b) any information regarding click-through rates or product purchases by Affiliate Customers ("Sales Information"). Subject to the terms and conditions of this Agreement, Company grants you a limited worldwide, non-exclusive, non-transferable royalty-free license to use the Sales Information to the extent necessary to fulfill your obligations under this Agreement or for your internal research purposes. You agree not to disclose any Sales Information or Affiliate Customer contact information to any third party without Bluefly's prior written approval. You agree not to send Affiliate Customers e-mail communications promoting your Site as an affiliate of Bluefly or otherwise unless granted previous approval by Bluefly, and to comply with all applicable federal, state and local anti-spam and other laws, rules and regulations to the extent that Bluefly permits you to send any such email communications.
9. Additional Terms.
- Publisher shall not assign, transfer or delegate its obligations under this Agreement, either in whole or in part, without the prior written consent of Company. Any attempted assignment, transfer or delegation in violation of the provisions of this provision will be void.
- The provisions of this Agreement are severable. If any provision of this Agreement, or the application thereof to any person or circumstance, shall be deemed invalid or unenforceable under any applicable law, such invalidity or unenforceability shall not affect the other provisions of this Agreement that can be given effect.
- No delay or failure by Company in exercising any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right.
- The rights and remedies of Company are not mutually exclusive; that is, the exercise of one or more of the provisions hereof shall not preclude the exercise of any other provision hereof. Publisher acknowledges, confirms, and agrees that damages may be inadequate for a breach or a threatened breach of this Agreement and, in the event of a breach or threatened breach of any provision hereof, the respective rights and obligations hereunder shall be unenforceable by specific performance, injunction, or other equitable remedy.
- This Agreement shall be deemed a mutual agreement and shall not be construed and/or interpreted in favor or against either party on the basis of preparation of the Agreement.
- By applying to the Program, using the automatic facility located on the CJ Network Service, and by clicking-through the acceptance button to this Agreement, Publisher executes, accepts, enters into, and becomes party to this Agreement, effective on the date of such acceptance to this Agreement.
- Company reserves the right to modify the terms and conditions of this Agreement in its sole discretion upon seven (7) days prior written notice to Publisher. If any modification is unacceptable to Publisher, Publisher's sole recourse is to terminate this Agreement. Publisher's continued participation in the Program after notice of modification to the terms and conditions of this Agreement constitutes Publishers binding acceptance to the change.
- This Agreement shall be governed by the laws of the State of New York (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state and federal courts in New York, New York. Publisher consents to such venue and jurisdiction.
- Official notices to Company should be sent to: Bluefly, Inc., attn: Legal Department, 42 West 39th Street, New York, New York 10013.
BY APPLYING FOR THE BLUEFLY PROGRAM AND CLICKING ON THE "ACCEPT" ICON BUTTON YOU ARE SIGNIFYING YOUR AGREEMENT TO BE PRESENTLY BOUND BY THE TERMS OF THIS AGREEMENT TO THE SAME EXTENT AS IF YOU HAD PERSONALLY SIGNED THIS AGREEMENT.