PLEASE READ THE ENTIRE AGREEMENT.
YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND MERCHANT, INC.
(DBA CHALK FULL OF DESIGN)
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 Chalk Full of Design’s Affiliate
Program. The purpose of this Agreement is to allow HTML linking between your
marketing tools and the Chalk Full of Design web site. Please note that
throughout this Agreement, "we," "us," and "our"
refer to Chalk Full of Design, and "you," "your," and
"yours" refer to the affiliate.
2. Affiliate Obligations
2.1. Enrollment will begin with an offer to join the Chalk
Full of Design Affiliate Program. You will be provided with an application,
which must be completed and returned for evaluation. We may reject your
application at our sole discretion. We may cancel your application if we
determine that your business, marketing materials, promotional methodology, or
social media footprint are 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
2.1.6. Includes "Merchant" or variations or misspellings thereof in
its domain name
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory,
obscene, harassing, or racially, ethnically or otherwise objectionable to us in
our sole discretion.
2.1.8. Contains software downloads that potentially enable diversions of
commission from other affiliates in our program.
2.1.9. You may not create or design your marketing materials, website or any
other website that you operate, explicitly or implied in a manner which
resembles our website nor design your website in a manner which leads customers
to believe you are Chalk Full of Design or any other affiliated business.
2.2. As a member of Chalk Full of Design’s Affiliate
Program, you will have access to Affiliate Account Manager. Here you will be
able to review our Program’s details and previously-published affiliate
newsletters, download HTML code (that provides for links to web pages within
the Chalk Full of Design web site) and banner creatives, browse and get
tracking codes for our coupons and deals. In order for us to accurately keep
track of all guest visits from your site to ours, you must use the HTML code
that we provide for each banner, text link, or other affiliate link we provide
2.3. Chalk Full of Design reserves the right, at any time,
to review your placement and approve the use of Your Links and require that you
change the placement or use to comply with the guidelines provided to you.
2.4. The maintenance and the updating of your site will be
your responsibility. We may monitor your site as we feel necessary to make sure
that it is up-to-date and to notify you of any changes that we feel should
enhance your performance.
2.5. 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, whether
it be a writing, an image, 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.
3. Chalk Full of Design Rights and Obligations
3.1. We have the right to monitor your site and marketing
materials 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 site
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 site that we feel are necessary,
we reserve the right to terminate your participation in the Chalk Full of
Design Affiliate Program.
3.2. Chalk Full of Design reserves the right to terminate
this Agreement and your participation in the Chalk Full of Design Affiliate
Program immediately and without notice to you should you commit fraud in your
use of the Chalk Full of Design Affiliate Program or should you abuse this
program in any way. If such fraud or abuse is detected, Chalk Full of Design
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 application and issuance of Affiliate Program credentials, and will
continue unless terminated hereunder.
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
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 Chalk Full of Design’s Affiliate Program rules.
If any modification is unacceptable to you, your only option is to end this
Agreement. Your continued participation in Chalk Full of Design’s Affiliate
Program following the posting of the change notice or new Agreement on our site
will indicate your agreement to the changes.
Chalk Full of Design pays affiliates through PayPal using
the account information provided on the Chalk Full of Design Affiliate Program
application. All affiliates are required to complete and submit a W-9 prior to
authorization as an affiliate. 7. Access to Affiliate Account Interface
Chalk Full of Design utilizes the Affiliatly referral
program application. You will be provided Affiliate Program credentials and a
link for access so that you may enter secure affiliate account interface. From
their site you will be able to receive your reports that will describe our
calculation of the commissions due to you.
8. Promotion Restrictions
8.1. You are free to promote your own web sites, but
naturally any promotion that mentions Chalk Full of Design 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 Chalk Full of Design. 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 use mailings to customers to promote Chalk Full of Design so long as
the recipient is already a customer or subscriber of your services or web site,
and recipients have the option to remove themselves from future mailings. Also,
you may post to newsgroups to promote Chalk Full of Design so long as the news
group specifically welcomes commercial messages. At all times, you must clearly
represent yourself and your web sites as independent from Chalk Full of Design.
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 Chalk
Full of Design Affiliate Program. Any pending balances owed to you will not be
paid if your account is terminated due to such unacceptable advertising or
8.2. Affiliates that among other keywords or exclusively bid
in their Pay-Per-Click campaigns on keywords such as Chalk Full of Design,
Full of Design, and/or any misspellings or
similar alterations of these – be it separately or in combination with other
keywords – and do not direct the traffic from such campaigns to their own
website prior to re-directing it to ours, will be considered trademark
violators, and will be banned from Merchant’s 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. Affiliates are not prohibited from keying in prospect’s
information into the lead form as long as the prospects’ information is real
and true, and these are valid leads (i.e. sincerely interested in Merchant’s
8.4. 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 from the time the consumer
clicks on a qualifying link until such time as the consumer has fully exited
Merchant’s site (i.e., no page from our site or any Chalk Full of Design’s
content or branding is visible on the end-user’s screen). As used herein a.
“Parasiteware™” and “Parasitic Marketing” shall mean an application that (a)
through accidental or direct intent causes the overwriting of affiliate and non
affiliate commission tracking cookies through any other means than a customer
initiated click on a qualifying link on a web page or email; (b) intercepts
searches to redirect traffic through an installed software, thereby causing,
pop ups, commission tracking cookies to be put in place or other commission
tracking cookies to be overwritten 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); (c) set
commission tracking cookies through loading of Merchant site in IFrames, hidden
links and automatic pop ups that open Chalk Full of Design’s site; (d) targets
text on web sites, other than those web sites 100% owned by the application
owner, for the purpose of contextual marketing; (e) 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 Chalk Full of Design’s
Affiliate Program. You agree that all uses of the Licensed Materials will be on
behalf of Chalk Full of Design and the good will associated therewith will
inure to the sole benefit of Chalk Full of Design.
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.
CHALK FULL OF DESIGN MAKES NO EXPRESS OR IMPLIED
REPRESENTATIONS OR WARRANTIES REGARDING CHALK FULL OF DESIGN SERVICE AND WEB
SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF CHALK
FULL OF DESIGN ABILITY, 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
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 CHALK FULL OF DESIGN’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
You hereby agree to indemnify and hold harmless Chalk Full
of Design, 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 site, 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 Chalk
Full of Design. 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 any other of Your Site or otherwise, 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.