This Agreement contains the terms and conditions that apply to your participation
as an Affiliate in the
Affiliate Program and to the establishment of links from your Affiliate Web site
to our Web site, "Bluemercury". The
Affiliate Program is administered through
THIS IS A LEGALLY BINDING AGREEMENT. BY COMPLETING AND SUBMITTING THE ONLINE APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS OPERATING AGREEMENT.
a. To begin the enrollment process, you must submit a complete Bluemercury Affiliate Program application via our Web site or the Be Free Web site. We will evaluate your application and will notify you of your acceptance or rejection in a timely manner. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Bluemercury Affiliate Program for any or no reason, including, but not limited to, inclusion of content, or links to such material that is in any way unlawful, harmful, threatening, harassing, defamatory, obscene, violent or that:
b. Employees of Bluemercury Co., Inc., Bluemercury, Inc., Avenue A and any product or service vendor or supplier doing business with us and each of their respective subsidiaries and affiliates (all hereinafter referred to as a "Related Party") and the immediate family members of such employees are not allowed to participate in the Bluemercury Affiliate Program.
If we reject your application, you are welcome to reapply to the Bluemercury Affiliate Program.
a. As an Affiliate Program member, we will make available to you a variety of graphic and textual links ("Links" or "Link"), which, subject to the terms and conditions of this Agreement, you may display as often and in as many areas on your site as you desire. The Links will serve to identify your site as a member of our Affiliate Program and will establish a link from your site to ours.
b. Agreements Regarding Links: In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. You agree not to alter Links or their content in any way. You also agree that you will display in your site only those graphic or textual images (indicating a Link) that are provided by us, and you will immediately substitute such images with any new images that are provided by us from time to time throughout the term of this Agreement. Each Link connecting users of your site to the pertinent area of our site will in no way alter the look, feel or functionality of our site. In addition, we encourage (but do not require) you to include a Link to the home page of our site.
All Affiliates will be required to display a graphic (which we will provide) indicating their Affiliate relationship to Best Buy.
We will be responsible for providing the information necessary to allow you to make appropriate Links from your site to our site. We will be solely responsible for: (i) processing every order placed by a customer following a special Link from your site; (ii) tracking the volume and amount of sales generated by your site; and (iii) providing information to Affiliate Program members regarding sales statistics via Reporting.net (http://Bluemercury.reporting.net), a service of Bluemercury. Our order processing obligations will include order entry, payment processing, shipping, cancellations, returns and related customer service. Sales transaction data will be provided once daily, and reflects data through the previous day; once a month, all returns/refunds/cancels will be provided, deducted from the overall sales transacted for the Affiliate Program member.
Only Bluemercury products that are: (i) sold by the Bluemercury Web site; (ii) purchased by users linking to the Bluemercury Web site from your site pursuant to a Link; (iii) actually shipped by the Bluemercury Web site to a U.S. shipping address and billed to a U.S. billing address; and (iv) for which Bluemercury has received full payment will qualify for a commission ("Qualifying Purchases"). No commissions will be paid for product orders that are cancelled or returned, which such cancellations and returns will be deducted on an on-going basis but no less frequently than monthly.
Commission rates will be based on the aggregate amount actually paid to Bluemercury for Qualifying Purchases, excluding amounts collected by us for sales taxes, duties, shipping, handling, and similar charges, amounts due to credit card fraud and bad debt, credits for cancelled orders and returned goods ("Net Sales"). All qualifying product items available for sale on our site will be included in the computation of Net Sales. Commission rates are based on product categories. Categories and the products contained within categories are determined solely by Bluemercury. Current commission rates and product categories are as follows:
(i) Bluemercury will not pay any commissions on sales of any product where the sale was completed through an error or anomaly on the Bluemercury Web Site related to any information posted on the Affiliate or related site with respect to such error or anomaly.
(ii) Commissions otherwise payable to an Affiliate for any month shall be forfeited where information prohibited by section 11. g. is posted to the Affiliate or related site regardless of whether sales of any products the subject of such posted information occurred, and Affiliate may be terminated at the sole discretion of Bluemercury.
When the total commissions due to you under the preceding Section 5 exceed twenty-five dollars ($25) at the end of any calendar month, we will send a commission check for the applicable commissions (less any taxes required to be withheld under applicable law) and a statement of activity to you. Such commission checks and statements of activity will be sent approximately forty-five (45) days after the end of any calendar month in which accumulated earned commissions exceed twenty-five dollars ($25). If at the end of any calendar month earned commissions are less than twenty-five dollars ($25), such earned commissions will be held and accumulated until such time that they exceed twenty-five dollars ($25) at which time they will be paid as set forth above.
You will be given a password to allow you to enter Bluemercury's Reporting.net site (http://Bluemercury.reporting.net). This password-protected site will allow you to review your sales statistics, which will be updated once daily, reflecting data through the previous day.
Customers who buy products from the Bluemercury Web site through the Affiliate Program will be deemed to be customers of Bluemercury. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, privacy, and Bluemercury product sales will apply to those customers.
We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold by the Bluemercury Web site under the Affiliate Program in accordance with our own pricing policies. Prices and availability of products on the Best Buy Web site may vary from time to time, and the availability and price of any particular product cannot be guaranteed. YOU MAY NOT PLACE INDIVIDUAL PRODUCT PRICING OR LOGOS, IMAGES, OR DESCRIPTIONS RELATED TO PRODUCTS ON YOUR SITE WITHOUT OUR EXPRESS PRIOR WRITTEN PERMISSION.
You shall not create, publish, distribute, or permit any written material that makes reference to us without first submitting such material to us and receiving our written consent.
a. WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS, TO USE THE Bluemercury TRADEMARK AND LOGO AND SIMILAR IDENTIFYING MATERIAL RELATING TO US BUT ONLY IN THE FORMS THAT WE PROVIDE TO YOU (COLLECTIVELY, THE "LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF LINKING YOUR SITE TO OUR SITE, WHERE YOUR USERS CAN PURCHASE PRODUCTS FROM OUR SITE. YOU MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY. WE RESERVE ALL OF OUR RIGHTS IN THE LICENSED MATERIALS. YOU ACCEPT THESE RIGHTS AND LICENSES SUBJECT TO THE TERMS AND CONDITIONS IN THIS AGREEMENT.
b. You acknowledge Bluemercury's ownership in its Licensed Materials, agree that you will not do anything inconsistent with Best Buy's ownership and that all of your use of the Licensed Materials will inure to the benefit of and be on behalf of Bluemercury, and agree to assist Bluemercury in recording this Agreement with appropriate government authorities. You agree that nothing is this Agreement gives you any right, title or interest in the Licensed Materials other than the right to use the Licensed Materials in accordance with this Agreement. You also agree that you will not attack the title of Bluemercury to the Licensed Materials or the validity of the Licensed Materials or this Agreement.
c. You agree that the nature and quality of all services provided by you in connection with this Agreement and all related advertising and promotional uses shall conform to high standards of quality and will not impugn the goodwill of Bluemercury or the Licensed Materials. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light.
d. You agree to use the Licensed Materials only in the form and manner and with appropriate legends as provided from time to time by Bluemercury, and not to use any other trademark or service mark in combination with the Bluemercury trademark or name.
e. You agree to not use, register or seek to register any trademark, service mark or domain name that contains the words "Bluemercury," "Bluemercury," "bb.com," "bby.com," "best" and "buy", or any variations or misspelling of them, or is any way confusingly similar to "Best Buy". If you do, you agree to transfer the registrations, at your expense, to Bluemercury at Bluemercury's request and to cooperate by providing any information, signing any documents and providing appropriate authorizations necessary to accomplish the transfer. If you fail to cooperate, you hereby authorize Bluemercury to sign appropriate documentation on your behalf in order to effect the transfer.
f. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of the Affiliate Program. We may revoke your license at any time in our sole discretion, by giving you written notice. If we give you such notice, you must immediately discontinue all use of the Licensed Materials.
g. You agree not to use or display the trademarks of Bluemercury, Inc., or otherwise infringe their intellectual property rights.
h. You grant to us a non-exclusive license, for the term of this Agreement, to utilize your names, titles, and logos, as the same may be amended from time to time to advertise, market, promote, and publicize in any manner our rights hereunder; provided, however, that we shall not be required to so advertise, market, promote, or publicize.
11. Obligations Regarding Your Site
a. You are solely responsible for, and we have no liability for, the development, operation, or maintenance of your site, or for any materials contained on your site.
b. You agree that your site will not, in any way, copy or resemble the look and feel of our site, nor will you create the impression that your site is our site or is a part of our site, nor will you frame any page on the Bluemercury Web site being viewed by a user of your site who links to the Bluemercury Web site through a Link.
c. You agree that your site does not currently contain and will not contain any content, or links to such material, that is in any way unlawful, harmful, threatening, harassing, defamatory, obscene, or violent as more fully set forth in Section 1 (Enrollment).
d. You also agree that your site will not contain any content from our site or any materials that are proprietary to Bluemercury, except with our prior written permission, or to the extent that materials are obtained by you strictly in accordance with the provisions of this Agreement. You agree not to purchase or otherwise contract with any third party to exploit any of the Bluemercury marks for the purpose of causing the Affiliate site to appear as a search result in any search engine or for any other reason.
e. You agree that your Affiliate site will not use any form of mass email communication ("spam") as a marketing tool for the site or for any other purpose and that any email generated by you or your Affiliate site will conform in all respects with all applicable local, state and federal laws, regulations and rules including the CAN-SPAM Act.
f. When promoting Best Buy 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) you must not give the impression that you are, or represent, Bluemercury, through use of phrases such as 'Official Site'; (ii) you must not outbid Best Buy for the top placement on select trademarks and brand names designated by Bluemercury, including but not limited to: "BluemercuryTM" and "Bluemercury®"; (iii) you must not target the brand names of any entities that are direct competitors of Bluemercury, or otherwise engage in marketing practices that are illegal or violate the rights of any third party; and (iv) you 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. You agree that, following notice from Bluemercury, you will promptly remove any search listing containing copy and/or creative components that Bluemercury, in its sole discretion, deems inappropriate for any reason.
g. You agree that your Affiliate site, and any other web site operated by you or related to your Affiliate site, will not, and will not permit users to, post on the site or any bulletin board or chat room associated with the site any information relating to the Bluemercury Web Site that may be used by others to take advantage of errors or anomalies discovered on the Bluemercury Web Site (e.g., pricing errors, shopping cart errors, discount calculations) to the disadvantage of Bluemercury. In the event any such information is posted to the Affiliate or related web site, you agree to remove it immediately and take steps to discourage your users from posting such information. In addition, you agree that you have an affirmative duty, as an Affiliate of Bluemercury, to inform Bluemercury at email@example.com immediately upon discovering any errors or anomalies on the Bluemercury Web Site. Failure to abide by these terms may lead to a loss of commission payments to you, or termination, as provided in section 5. f. of this Agreement.
The term of this Agreement will begin upon our acceptance of your Affiliate Program application and will end when terminated by either party. Either you or Bluemercury may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn commissions on sales occurring during the term, and commissions earned through the date of termination will remain payable only if the related Qualified Purchases are not cancelled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement at any time in our sole discretion. Modifications may include, but are not limited to, changes in the scope of available commissions, commission payment schedules, payment procedures, and Affiliate Program rules. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Program following our posting of a change notice or new agreement on our Web site will constitute binding acceptance of the change.
You and Bluemercury are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any representations regarding the association of Bluemercury, Inc., with Bluemercury or you.
NEITHER Bluemercury NOR ITS SUPPLIERS MAKES ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE AFFILIATE PROGRAM OR TO ANY Bluemercury PRODUCTS SOLD BY THE Bluemercury WEB SITE THROUGH THE AFFILIATE PROGRAM (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, NEITHER Bluemercury NOR ITS SUPPLIERS MAKE ANY REPRESENTATION THAT THE OPERATION OF THE Bluemercury WEB SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND NEITHER Bluemercury NOR ITS SUPPLIERS WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
You represent and warrant to us that: (i) you have the right and authority to enter into this Agreement and perform your obligations under the Agreement; (ii) you are the sole and exclusive owner of the Affiliate trademarks and have the right and power to grant to us the license to use your trademarks in the manner provided for in this Agreement; (iii) you are an adult of at least 21 years of age; and (iv) you are not an employee or immediate family member of a Related Party as described in Section 1 b. above.
You agree that all customer information related to the Bluemercury Affiliate Program belongs to us. You agree to protect as secret all Bluemercury Affiliate Program customer information and Affiliate Program business and sales information related to us, you, or our suppliers, including, without limitation, information relating to sale pricing, promotions and weekly specials (collectively, "Information"), not to disclose Information to any third parties, and not to use Information for any purpose other than the purposes of this Agreement. You agree to protect Information using methods at least as protective as those you use to protect your own information of a confidential nature, but in no event, using less than a standard of reasonable care.
You agree that you will not publish or otherwise disclose or permit to be published or disclosed on your site or any affiliated site by users of your site or such other site our (i) weekly insert pricing or promotional offers prior to the time such prices or offers become effective on the Bluemercury Web Site (which, in most cases, is 3:00 a.m. Sundays) or (ii) holiday or special insert pricing or promotional offers, including, without limitation, the insert and promotions for the day after Thanksgiving until 6:00am Eastern Standard Time on the Friday immediately following Thanksgiving.
NEITHER Bluemercury NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND YOU WAIVE ALL RIGHTS TO ANY CLAIMS FOR ANY SUCH DAMAGES. FURTHER, THE AGGREGATE LIABILITY OF Bluemercury AND ITS SUPPLIERS WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
You agree to indemnify, defend and hold harmless Bluemercury and its subsidiaries and affiliates, and suppliers, and their directors, officers, employees, and shareholders, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses, including reasonable attorneys' fees, ("Losses") insofar as such Losses, or actions in respect of Losses, arise out of or are based on (i) any claim that our use of Affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party; (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you; or (iii) any claim related to your site, including, without limitation, claims regarding content on your site.
Bluemercury's performance under this Agreement shall be excused to the extent that its performance is hindered, delayed or made commercially impractical by causes beyond its reasonable control.
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You understand that we may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate Web sites that are similar to or compete with your Web site. You have independently evaluated the desirability of participating in the Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
This Agreement will be governed by the laws of the United States and the State of DC, without reference to rules governing choice of law. Any action relating to this Agreement must be brought in the federal or state courts located in Los Angeles, DC, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.