Bargello Affiliates Program Operating Agreement
This Agreement contains the complete terms and conditions that
apply to an individual's or entity's participation in the Bargello
Affiliates Program (the "Program"). As used in this Agreement,
"we", "us", or "our" means Bargello or any
of our affiliate companies, as the case may be, and "you"
means the applicant. "Bargello.com Site" means the site that
has its primary home page identified by the URL www.bargello.com,
and "site" means a World Wide Web site. "Your site"
means any site that you will link to the Bargello.com Site (and
which you will identify in your Program application). Save for our
obligation to pay referral fees under Section 4, which may be performed
solely by us, we may cause any of our obligations under this Agreement
to be fulfilled by any of our Affiliates (defined below), on our
behalf.
1. Enrollment in the Program
To begin the enrollment process, you will submit a complete Program
application via the Bargello.com Site. We will evaluate your application
in good faith and will notify you of its acceptance or rejection.
We may reject your application if we determine (in our sole discretion)
that your site is unsuitable for the Program. Unsuitable sites include,
but are not limited to, those that:
- promote sexually explicit materials
- promote violence
- promote discrimination based on race, sex, religion, nationality,
disability, sexual orientation, or age
- promote illegal activities
- breach intellectual property rights
- include "Bargello," any other trademark of Bargello Services
or its affiliates, or variations or misspellings of any of them,
in their URLs to the left of the top-level domain name (e.g.,
".com", ".net", ".org", etc.) -- for example, a URL such as
"Bargello.mydomain.com", "Bargeloshop.com" or "Bargello.net"
would be unsuitable
- otherwise violate intellectual property rights.
By participating in the Program you agree that you will not engage
in any such activities. If we reject your application, you are welcome
to reapply to the Program at any time. You should also note that
if we accept your application and your site is thereafter determined
(in our sole discretion) to be unsuitable for the Program, we may
terminate this Agreement. Participation in the Program is limited
to parties that lawfully can enter into and form contracts under
applicable law. For example, minors are not allowed to participate
in the Program.2. Links on Your Site
Once you have been notified that your site has been accepted
into the Program, we grant you a revocable, non-exclusive, worldwide,
royalty-free license for the duration of the term of this Agreement,
solely for purposes of facilitating referrals from your site to
the Bargello.com Site, to provide on your site one or more of the
following types of links to the Bargello.com Site:
General Link to Bargello.com Site Home Page: You may provide
a general link on your site to the home page of the Bargello.com
Site.
We will provide you with guidelines and graphical artwork to
use in linking to the Bargello.com Site home page. To permit accurate
tracking, reporting, and referral fee accrual, we will provide you
with special "tagged" link formats to be used in all links between
your site and the Bargello.com Site. You must ensure that each of
the links between your site and the Bargello.com Site properly utilizes
such special link formats. Links to the Bargello.com Site placed
on your site pursuant to this Agreement and which properly utilize
such special link formats are referred to as "Special Links".
You will earn referral fees only with respect to activity on the
Bargello.com Site occurring directly through Special Links; we will
not be liable to you with respect to any failure by you to use Special
Links, including to the extent that such failure may result in any
reduction of amounts that would otherwise be paid to you pursuant
to this Agreement.
You acknowledge that, by participating in the Affiliates Program
and placing any of the above links within your site, we may receive
information from or about visitors to your site or communications
between your site and those visitors. Your participation in the
Program constitutes your specific and unconditional consent to and
authorization for our access to, receipt, storage, use, and disclosure
of any and all such information, consistent with the policies and
procedures set forth in the Privacy Policy on the Bargello.com Site.
Except for the license granted under this Section 2, you do not
obtain any rights under this Agreement in any intellectual property,
including, without limitation, any intellectual property with respect
to the Special Links, link formats, technical specifications, guidelines
or graphical artwork referenced above, or with respect to the Bargello.com
domain name.
You also acknowledge that we (and our corporate affiliates, such
as Mag4you.com.) may crawl or otherwise monitor your site for the
purpose of ensuring the quality and reliability of Special Links
on your site (for example, to detect links that are broken or non-functional,
links to products that are out of stock or otherwise unavailable,
etc.). Therefore, you agree that we and our corporate affiliates
may take such actions and that you will not seek to block or otherwise
interfere with such crawling or monitoring (and that we and our
corporate affiliates may use technical means to overcome any methods
used on your site to block or interfere with such crawling or monitoring).
You also acknowledge that as a participant in the Program, we
may from time to time send you email updates about the Program.
By participating in the Program, you consent to our sending you
these email updates.
Further, you acknowledge and agree that you will: (a) not, in
connection with this Agreement, display or reference on your site,
any trademark or logo of any third party seller on the Bargello.com
Site; (b) use any data, images, text, or other information obtained
by you from us or the Bargello.com Site in connection with this
Agreement ("Content") only in a lawful manner and only in
accordance with the terms of this Agreement; (c) not use any Content
relating to any Excluded Merchant or any product sold by any Excluded
Merchant; (d) not modify or alter any Content that consists of a
graphic image, other than to resize it; (e) not edit any Content
that consists of text, other than to shorten its length; (f) not
sell, redistribute, sublicense or transfer any Content; (g) not
use any Content in a manner intended to send sales to any site other
than the Bargello.com Site; and (h) promptly delete any Content
that is no longer displayed on the Bargello.com Site or that we
notify you is no longer available for your use.
3. Order Processing
We will process Product orders placed by customers who follow
Special Links from your site to the Bargello.com Site. We reserve
the right to reject orders that do not comply with any requirements
that we periodically may establish. We will be responsible for all
aspects of order processing and fulfillment. Among other things,
we will prepare order forms, process payments, cancellations, and
returns, and handle customer service. We will track sales made to
customers who purchase Products by using Special Links from your
site to the Bargello.com Site and will make available to you reports
summarizing this sales activity. The form, content, and frequency
of the reports may vary from time to time in our discretion.
4. Referral Fees
We will pay you (in accordance with Sections 5 and 6 below) referral
fees on certain Product sales to third parties. For a Product sale
to be eligible to earn a referral fee, the customer must click-through
a Special Link from your site to the Bargello.com Site, and add
the Product to his or her shopping cart. The session ends upon one
of the following events: (a) 24 hours elapses from the customer's
initial click-through, (b) the customer orders the Product, or (c)
the customer follows a third party's Special Link. We will only
pay referral fees on eligible Products after order, payment and
shipping have occurred.
To permit accurate tracking, reporting and fee accrual, you must
ensure that the Special Links between your site and the Bargello.com
Site are properly formatted. We will not be liable for paying referral
fees on purchases that are not correctly tracked and reported because
the links between your site and the Bargello.com Site are not properly
formatted.
We will not, however, pay referral fees on any Products that
are added to a customer's Shopping Cart after the customer has reentered
the Bargello.com Site (other than through a Special Link from your
site), as determined by us, even if the customer previously followed
a link from your site to the Bargello.com Site. In addition, gift
certificates are not eligible to earn referral fees. You may
not purchase products during sessions initiated through the links
on your site for your own use, for 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 you or your friends, relatives,
or affiliates in any manner. Such purchases may result (in our sole
discretion) in the withholding of referral fees and/or the termination
of this Agreement. Products that are eligible to earn referral fees
under the rules set forth above are referred to as "Qualifying
Products".
In addition, you may not: (a) directly or indirectly offer any
person or entity any consideration or incentive (including, without
limitation, payment of money (including any rebate), or granting
of any discount or other benefit) for using Special Links on your
site to access the Bargello.com Site (e.g., by implementing any
"rewards" program for persons or entities who use Special Links
on your site to access the Bargello.com Site); (b) read, intercept,
record, redirect, interpret, or fill in the contents of any electronic
form or other materials submitted to us by any person or entity;
(c) in any way modify, redirect, suppress, or substitute the operation
of any button, link, or other interactive feature of the Bargello.com
Site; (d) make any orders or subscription requests, or engage in
other transactions of any kind on the Bargello.com Site on behalf
of any third party, or authorize, assist, or encourage any other
person or entity to do so; (e) take any action that could reasonably
cause any customer confusion as to our relationship with you, or
as to the site on which any functions or transactions (e.g., search,
order, browse, and so on) are occurring; (f) other than providing
Special Links on your site in accordance with this Agreement, post
or serve any advertisements or promotional content promoting the
Bargello.com Site or otherwise around or in conjunction with the
display of the Bargello.com Site (e.g., through any "framing" technique
or technology or pop-up or pop-under windows), or assist, authorize,
or encourage any third party to take any such action; (g) attempt
to circumvent the referral fee schedule or artificially increase
your referral fees (e.g. by intentionally featuring, purchasing
or requesting or encouraging any third party to purchase low-price
items offered on the Bargello.com Site (as determined by us) for
the purpose of exceeding any referral fee threshold or by causing
any page of the Bargello.com Site to open in a customer's browser
other than as a result of the customer clicking on a Special Link
on your site); (h) attempt to intercept or re-direct (including,
without limitation, via user-installed software) traffic from or
on, or divert referral fees from, any web site that participates
in the Program; or (i) seek to purchase or register any keywords,
search terms or other identifiers that include the word "Bargello"
or variations thereof (for example "Baargello", "Bargelo", etc.)
or any of the phrases ("Proprietary Terms") for use in any search
engine, portal, sponsored advertising service or other search or
referral service. From time to time we may request that you cause
any applicable Web search provider to exclude Proprietary Terms
from keywords used to display your advertising content in association
with search results, assuming the provider of such Web search engine
offers such exclusion capabilities. If we determine, in our sole
discretion, that you have engaged in any of the foregoing activities
or, as the case may be, refused promptly to comply with a request
from us to exclude Proprietary Terms from any keyword as mentioned
above, we may (without limiting any other rights or remedies available
to us) withhold any referral fees otherwise payable to you under
this Agreement and/or terminate this Agreement.
5. Referral Fee Schedule
During each calendar quarter, for Qualifying Products sold during
sessions initiated through Special Links on your site, you will
earn (subject to the other terms of this Agreement) referral fees
in accordance with our Fee Structure described under section 5a
"Standard Fee Structure" below.
5a. Standard Fee Structure.
Subject to the other terms of this Agreement, you will earn 5%
of "Qualifying Revenues" (revenues derived by us from sales of Qualifying
Product units sold during sessions initiated through Special Links
on your site, excluding costs for shipping, handling, gift-wrapping,
taxes separately stated and charged to the customer, service charges,
credit card processing fees, returns and bad debt).
6. Referral Fee Payment
We will pay you referral fees on a quarterly basis. Approximately
30 days following the end of each calendar quarter, we will either
(a) send you a check for the referral fees earned, (b) send you
a gift certificate good for purchase of Products through the Bargello.com
Site, subject to our standard terms or conditions, or (c) directly
deposit the referral fees earned into your bank account (if you
want us to use this method of payment, please note that you will
have to provide us with the name of your bank, the bank account
type, the 9-digit routing number/ABA number, the account number
and the primary account holder name as it appears on the bank account).
If you select payment via Bargello.com Site gift certificate, we
will accrue and withhold referral fees until the total amount due
is at least $10.00. If you select payment via check, we will accrue
and withhold referral fees until the total amount due is at least
$100.00. Please note that if you select payment via check, we will
deduct a processing fee in the amount of $8.00 from the referral
fees payable to you for each check we send. No processing fee will
be deducted if you select payment via Bargello.com Site gift certificate.
7. Policies and Pricing
Customers who buy products or submit Card applications through
this Program will be deemed to be our customers. Accordingly, all
of our rules, policies, and operating procedures concerning customer
orders, customer service, and 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 under this Program in accordance with our own
pricing policies. Product prices and availability may vary from
time to time. Because price changes may affect Products that you
have listed on your site, your site may only show prices when we
serve those prices through our "Bargello Recommends" Service or
our "Bargello Web Services". In addition, if you choose to display
prices for any Product on your site in any "comparison" format (including
through the use of any price-comparison tool or engine) together
with prices for the same or similar products offered through any
web site or other outlet other than the Bargello.com Site, you must
display both the lowest "new" price and, if we provide it to you,
the lowest "used" price at which the Product is available on the
Bargello.com Site. You may not otherwise 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.
8. Identifying Yourself as an Affiliate
You may not issue any press release with respect to this Agreement
or your participation in the Program; such action may result in
your termination from the Program. We will make available to
you a small graphic image that identifies your site as a Program
participant. You must display this logo or the phrase "In association
with Bargello" somewhere on your site. We may modify the text or
graphic image of this notice from time to time. In addition, you
may not in any manner misrepresent or embellish the relationship
between us and you, or express or imply any relationship or affiliation
between us and you or any other person or entity except as expressly
permitted by this Agreement (including by expressing or implying
that we support, sponsor, endorse, or contribute money to any charity
or other cause). If we determine your site is eligible to receive
Card Application Referral Fees, you may also place a Special Link
on your site to enable us to serve certain graphics relating to
the Card and Card applications directly to visitors on your site.
9. Limited License
We grant you a nonexclusive, revocable right to use the graphic
image and text described in Section 8 and such other text or images
for which we grant express permission, solely for the purpose of
identifying your site as a Program participant and to assist in
generating Product sales or Card sales (if applicable). You may
not modify the graphic image or text, or any other of our images,
in any way. We reserve all of our rights in the graphic image and
text, any other images, our trade names and trademarks, and all
other intellectual property rights. You agree to follow our Trademark
Guidelines, as those guidelines may change from time to time. We
may revoke your license at any time by giving you written notice.
10. Responsibility for Your Site
You will be solely responsible for the development, operation,
and maintenance of your site and for all materials that appear on
your site. For example, you will be solely responsible for:
- the technical operation of your site and all related equipment
- creating and posting Product descriptions on your site and
linking those descriptions to the Bargello.com
- the accuracy and appropriateness of materials posted on
your site (including, among other things, all Product-related
materials)
- ensuring that materials posted on your site do not violate
or infringe upon the rights of any third party (including, for
example, copyrights, trademarks, privacy, or other personal
or proprietary rights)
- ensuring that materials posted on your site are not libelous
or otherwise illegal
- ensuring that your site accurately and adequately discloses,
either through a privacy policy or otherwise, how you collect,
use, store, and disclose data collected from visitors, including,
where applicable, that third parties (including advertisers)
may serve content and/or advertisements and collect information
directly from visitors and may place or recognize cookies on
visitors' browsers.
We disclaim all liability for these matters. Further, you will
indemnify and hold us harmless from all claims, damages, and expenses
(including, without limitation, attorneys' fees) relating to the
development, operation, maintenance, and contents of your site.
11. Compliance with Laws
As a condition to your participation in the Program, you agree
that while you are a Program participant you will comply with all
laws, ordinances, rules, regulations, orders, licenses, permits,
judgments, decisions or other requirements of any governmental authority
that has jurisdiction over you, whether those laws, etc. are now
in effect or later come into effect during the time you are a Program
participant. Without limiting the foregoing obligation, you agree
that as a condition of your participation in the Program you will
comply with all applicable laws (federal, state or otherwise) that
govern marketing email, including without limitation, the CAN-SPAM
Act of 2003 and all other anti-spam laws.
12. Term of the Agreement
The term of this Agreement will begin upon our acceptance of
your 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. Upon the termination of this Agreement for any reason,
you will immediately cease use of, and remove from your site, all
links to the Bargello.com Site, and all of our trademarks, trade
dress, and logos, and all other materials provided by or on behalf
of us to you pursuant hereto or in connection with the Program.
You are eligible to earn referral fees only on sales of Qualifying
Products that occur during the term, and referral fees earned through
the date of termination will remain payable only if the related
orders are not canceled or returned. We may withhold your final
payment for a reasonable time to ensure that the correct amount
is paid.
13. Modification
We may modify any of the terms and conditions contained in this
Agreement, at any time and in our sole discretion, by posting a
change notice or a new agreement on the Bargello.com Site. Modifications
may include, for example, changes in the scope of available referral
fees, referral fee schedules, payment procedures, and Program rules.
IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS
TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE
PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT
ON THE Bargello.com SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE
CHANGE.
14. Relationship of Parties You and we 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,
that reasonably would contradict anything in this Section.
15. Limitation of Liability
We will not be liable for indirect, special, or consequential
damages (or any loss of revenue, profits, or data) arising in connection
with this Agreement or the Program, even if we have been advised
of the possibility of such damages. Further, our aggregate liability
arising with respect to this Agreement and the Program will not
exceed the total referral fees paid or payable to you under this
Agreement.
16. Disclaimers
We make no express or implied warranties or representations with
respect to the Program or any products sold through the Program
(including, without limitation, warranties of fitness, merchantability,
noninfringement, or any implied warranties arising out of a course
of performance, dealing, or trade usage). In addition, we make no
representation that the operation of the Bargello.com Site will
be uninterrupted or error-free, and we will not be liable for the
consequences of any interruptions or errors.
17. Independent Investigation
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 PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE,
OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
18. Miscellaneous
This Agreement will be governed by the laws of Pakistan, without
reference to rules governing choice of laws. You may not assign
this Agreement, by operation of law or otherwise, without our prior
written consent. Subject to that restriction, this Agreement will
be binding on, inure to the benefit of, and be enforceable against
the parties and their respective successors and assigns. 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 provision or any other provision of this Agreement.
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