Affiliate Terms and Conditions
PLEASE READ THE ENTIRE AGREEMENT. YOU MAY PRINT THIS PAGE FOR YOUR RECORDS. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND FUTURE SHOE, INC. (DBA KIDSSHOES.COM) BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in KidsShoes.com’s Affiliate Program. The purpose of this agreement is to govern your use of your social media (“Social”) accounts in connection with your promotion of children’s shoes sold via the KidsShoes.com web site, as directed by us from time to time as set forth herein. Please note that throughout this Agreement, “we,” “us,” and “our” refer to KidsShoes.com, and “you,” “your,” and “yours” refer to the affiliate.
2. Affiliate Obligations
2.1. To begin the enrollment process, you will complete and submit the online application at the web page located at KidsShoes.com/kidsfashiongroup. The fact that we may auto-approve applications does not imply that we may not re-evaluate your application at a later time. We may reject your application at our sole discretion. We may cancel your application if we determine that your Social presence is unsuitable for our Program, including if it: 2.1.1. Promotes sexually explicit materials;
2.1.2. Promotes violence;
2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
2.1.4. Promotes illegal activities;
2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law; or
2.1.6. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion. 2.2. In each month of the term hereof, you will be sent a shoe chosen at our sole option (the “Monthly Shoe”), for which you will be billed a discounted price. You may opt out of up to two (2) such required purchases in each year during the Term. You understand and agree that due to our internal marketing decisions, there may be months during the Term hereof when different Affiliates are sent different Monthly Shoes, and that our decisions in such regard as to who receives which shoe are final. 2.3. Each month, you will feature the Monthly Shoe via your Social accounts in an organic manner to provide exposure to the Monthly Shoe across your Social followers and shall, without limitation, take appropriate steps to indicate to your Social followers how they may purchase the shoe via KidsShoes.com. 2.4. KidsShoes.com reserves the right, at any time, to review your placement and approve the use of the Monthly Shoes purchased by you in your Social feeds and require that you change the placement or use to comply with the guidelines provided to you. 2.6. We may monitor your Social accounts as we feel necessary to make sure that they are up-to-date and to notify you of any changes that we feel should enhance your performance. 2.8. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person’s copyrighted material, including without limitation any image(s), or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third party rights. 2.9. You may not operate your Social accounts in any manner which may lead customers to believe you are the owner of KidsShoes.com or any other affiliated business.
3. KidsShoes.com Rights and Obligations
3.1. We have the right to monitor your Social accounts at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your Social accounts that we feel should be made, or to make sure that your links to our web site are appropriate and to notify further you of any changes that we feel should be made. If you do not make the changes to your Social accounts that we feel are necessary, we reserve the right to terminate your participation in the KidsShoes.com Affiliate Program. 3.2. KidsShoes.com reserves the right to terminate this Agreement and your participation in the KidsShoes.com Affiliate Program immediately and without notice to you should you commit fraud in your use of the KidsShoes.com Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, KidsShoes.com shall not be liable to you for any commissions for such fraudulent sales. 3.3. This Agreement will begin upon our acceptance of your Affiliate Program application, and will continue until terminated as set forth herein.
Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email or fax. In addition, this Agreement will terminate without further notice immediately upon any breach of this Agreement by you.
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and KidsShoes.com’s Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in KidsShoes.com’s Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
In consideration of your use of your Social accounts to promote the Monthly Shoe, you will share in a commission pool consisting of 4% of the total gross sales amounts (not including shipping, handling, and/or returns) of each Monthly Shoe earned via only sales made through KidsShoes.com, which shall be shared equally among the entire pool of participants in the Affiliate Program who received and promoted such Monthly Shoe (the “Commission”). KidsShoes.com will pay to you your Commission earned via check or electronic payment method forty-five (45) days after the end of the month in which such Commission was earned.
7. Promotion Restrictions
8.1. You are free to promote your own web sites, but naturally any promotion that mentions KidsShoes.com could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by KidsShoes.com. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may not use mailings to customers to promote KidsShoes.com. You may post to discussion forums to promote KidsShoes.com so long as the forum specifically welcomes commercial messages. At all times, you must clearly represent yourself and your Social accounts as independent from KidsShoes.com. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the KidsShoes.com Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation. 8.2. Affiliates that bid in Pay-Per-Click campaigns on keywords such as KidsShoes.com, Kids Shoes, www.KidsShoes.com, and/or any misspellings or similar alterations of these – whether separately or in combination with other keywords – will be considered trademark violators, and will be banned from KidsShoes’ Affiliate Program. We will do everything possible to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior. 8.3. Affiliate shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers. As used herein, “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) intercepts searches to redirect traffic through an installed software, thereby causing, e.g., pop ups, to be put in place where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (b) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; and/or (c) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
9. Grant of Licenses
9.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of KidsShoes.com’s Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of KidsShoes.com and the good will associated therewith will inure to the sole benefit of KidsShoes.com. 9.2. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
KIDSSHOES.COM MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING KIDSSHOES.COM SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
11. Representations and Warranties
You represent and warrant that: 11.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms; 11.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party; 11.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
12. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL KIDSSHOES.COM’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
You hereby agree to indemnify and hold harmless KidsShoes.com, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the 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 herein, or (iii) any claim related to your Social accounts, including, without limitation, content therein not attributable to us.
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
15.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and KidsShoes.com. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement that reasonably would contradict anything in this Section. 15.2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party. 15.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the conflicts of laws and principles thereof. 15.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties. 15.5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written. 15.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement. 15.7. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.