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| Operating Agreement |
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This Operating Agreement contains the complete terms and conditions that apply to you as an Affiliate in the Affiliate Program of windaz, a division of dympaul Inc. and the establishment of links from your web site to our web site.
By submitting an application to join the windaz Affiliate Program, you are confirming that you have read this Operating Agreement and agreed to be bound by its terms and conditions.
"Affiliate(s)" – the business, individual or entity that displays the Merchant's products, services and/or promotions on its internet site in exchange for receiving remuneration from the Merchant for sales resulting from such display.
"Affiliate Site" – the Affiliate's internet site which displays the Merchants products, services and/or promotions.
"Net Sales" – total dollars paid to Staples for qualifying merchandise minus any tax, shipping, handling, and similar charges, amounts due to credit card fraud and bad debt, and credits for returned goods.
"Windaz Perfumes" – any product that is available for purchase through windaz.com.
Requirements:
1. Enrollment in the Affiliate Network
To begin the enrollment process, you must submit a completed Affiliate Program Application. We will evaluate your application in good faith 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 our Affiliate Program for any reason, including, but not limited to, inclusion of content that is, in our opinion, unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable.
2. Promotion of Our Affiliate Relationship
If you qualify and agree to participate as an Affiliate Site, we will make available to you a variety of graphic and textual links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions hereof, you shall display prominently throughout your site as you see fit and with our consent. The Links will serve to identify your site as a member of the Staples Affiliate Program and will establish a link from your site to ours. The Links may connect to any area of our site.
In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. You also agree that you will display on your site only those graphic or textual images (indicating a Link) provided by us, and you will substitute such images with any new images provided by us from time to time throughout the term of this Agreement. All Affiliate Sites shall display such graphic and/or textual images prominently in relevant sections of their site. Any information with respect to us that is going to be displayed on your site must be provided by us or approved by us in writing in advance of any display. Affiliates are not permitted to establish any Links to us in any community, forum, chat room or electronic bulletin board. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. 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. We are not responsible for missing or lost revenue/sales in the case where the Affiliate alters the Link in any way. Affiliates may establish a Link only on URL’s which have been approved by windaz.com in the application process.
5. Commission Payment
When the total commissions due to you (based on Section 4 above) exceed twenty–five dollars ($25), we will send a commission check for the applicable commission (less any taxes required to be withheld under applicable law). Subject to paragraph 12, such commission checks and statements of activity will be sent approximately thirty (30) days after the end of each month. If, at the end of one year no commission payments have been made, windaz will pay you the commission that has been earned and those commissions earned will be considered paid in full. THE MAXIMUM AMOUNT AN AFFIILIATE MAY EARN IN A GIVEN YEAR IS $100,000.
6. Reports of Sales
You will be given a password and have the ability to enter a password–protected site to receive your sales statistics on a daily basis.
7. Obligations Regarding your Site
a. You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. Such responsibilities include, but are not limited to, the technical operation of your site and all related equipment; creating and posting product reviews, descriptions, and references on your site and linking those descriptions to our catalogue; the accuracy and propriety of materials posted on your site ensuring that materials posted on your site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability and responsibility for such matters.
b. We have the right in our sole discretion to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement. If you are not in compliance we may terminate this Agreement immediately.
8. Windaz.com Responsibilities
We will be responsible for providing all information necessary to allow you to make appropriate Links from your site to our site. We will be solely responsible for processing every order placed by a customer following a special Link from your site, for tracking the volume and amount of sales generated by your site, and for providing information to Affiliate Sites regarding sales statistics. We will be responsible for order entry, payment processing, shipping, cancellations, returns, and related customer service. Any determination made by Staples regarding the foregoing shall be binding absent manifest error.
9. Policies and Pricing
Customers who buy perfumes from windaz.com through the Affiliate Network will be deemed to be our customers. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and Staples Product and Services 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 perfumes sold under the Affiliate Network in accordance with our own pricing policies. Prices and availability of perufmes from windaz may vary from time to time. Because price changes may affect products that you have listed on your site, you may or may not be able to include price information in your product descriptions. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
10. Emails and Publicity
You shall not create, publish, distribute, permit, or transmit any written material or electronic communications that makes reference to us without first submitting such material to us and receiving our written consent, which shall not be unreasonably withheld.
c. You grant to us a non–exclusive license to utilize your names, titles, and logos, as the same may be amended from time to time (the "Affiliate Trademarks"), 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 the Affiliate Trademarks. This license shall terminate upon the expiration or termination of this Agreement.
12. Term of the 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 we 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 commission on sales occurring during the term, and commissions earned through the date of termination will remain payable only if the related perfumes from windaz orders are not cancelled or returned. We may withhold your final payment for a reasonable time to ensure that no overpayment is made.
15. Relationship of Parties
You and windaz 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 statement, whether on your site or otherwise in contradiction of anything in this Section.
19. Confidentiality
Each of the parties agree that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party not having any obligation of confidentiality to the discloser hereunder. Notwithstanding the foregoing, each party is hereby authorized to deliver the copy of any such information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (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 including, without limitation, the Securities Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
20. Independent Investigation
YOUR APPLICATION SUBMISSION ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER RELATIONSHIPS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT. WE MAY ALSO SOLICIT CUSTOMER RELATIONSHIPS WITH ENTITIES THAT OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE STAPLES AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. |
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