Affiliate Program - Terms & Conditions

THIS AGREEMENT and the documents described in Section 18 below contain the complete terms and conditions that apply to an individual or entity's participation in the Adorama Affiliate Program (the "Program"). This Agreement is made and entered into by and between Adorama, Inc., a New York corporation ("Adorama"), and you. As used in this Agreement, "we/us/our" means Adorama and "you" means the applicant specified in the Application, as that term is defined below. "Site" means a World Wide Web site. “Manager” means the impact radius Corporation, which has been retained by us to provide affiliate marketing services for the Adorama Affiliate Program.

1. ENROLLMENT IN THE PROGRAM (New Members)

   1. To begin the enrollment process, you will need to submit a completed Program application form which can be found at https://member.impactradius.com/bla/Adorama/login.user. We will evaluate your Application in good faith and will notify you of your acceptance or rejection. We may reject your Application for any reason whatsoever, including, but not limited to our determination (in our sole discretion) that your Site is unsuitable for the Program (“Unsuitable Site”). Unsuitable Sites include, but are not limited to, those that a. contain or link to nudity or pornography or promote sexually explicit materials; b. promote violence; c. promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; d. promote illegal activities; e. infringe intellectual property rights of ours, or otherwise violate the rights of any third party: f. contain, in our sole judgment, material that is defamatory, fraudulent, or harassing to us or any third party; or promote the use of any pyramid or similar schemes. Once we accept your Application, you will be provided with a password protected affiliate account. If we reject your Application, you are welcome to reapply to the Program at any time. Existing affiliates are automatically approved and do not need to complete the application form.

2. LINKS ON YOUR SITE

   1. PRODUCT ICONS AND HOME PAGE LINKS. You may select any one or more graphics offered through your Affiliate account ("Banners") or ("Logos") to feature on your Site. You may change the selection of your featured Icons at any time, without our approval. You can display on your Site a word or words, graphic image(s), or combination of words and images. The content, style, and placement of these words and images will be your sole responsibility and at your sole discretion provided that you comply with the terms of this Agreement. You must ONLY place word(s) or graphic image(s) links on your Site utilizing the code provided. You may NOT "hard" code image(s) on your Site. You may not modify any of our Icons, content, tools, text, images, Links (as defined below), Adorama Brand Features (as defined below), or search boxes (collectively "Licensed Materials") in any way. For each selected Icon, we will provide an electronic link to the Adorama Site using an Affiliate URL provided by us (a "Link"). It is your sole responsibility to set up and maintain the electronic Links connecting your Site to the appropriate page on the Adorama Site designated for that particular Icon and ensure that the electronic Links are in good and working order. You acknowledge and agree that Icons, content, tools, text, images, Links, search boxes or any other material provided to you by us on our behalf for inclusion on your Site may include Adorama’s trade name, trademark, service mark and/or logo , (ii) you have no right to alter or modify such Adorama Brand Features, (iii) you will not use or display the Adorama Brand Features or any of the other Licensed Materials on any Unsuitable Site, as determined in our sole discretion, or in any manner that is defamatory, misleading, libelous, obscene or otherwise potentially damaging to the reputation of Adorama or the goodwill associated with the Adorama Brand Features, and (iv) you will use the Adorama Brand Features in accordance with any trademark usage guidelines and policies that Adorama may issue from time to time.

3. ORDER PROCESSING

   1. We will process product orders placed by customers who follow Links from your Site to the Adorama Site. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish.
   2. 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 online using Links from your site to our Site in accordance with the terms of this Agreement (“Customers”) and will provide you with access to reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time in our discretion but will generally be available on a continuous basis. You hereby agree not to disclose the information contained in these reports to any third party without prior written or electronic consent. To permit accurate tracking, reporting, and fee accrual, you must ensure that the Links between your and our Site are properly formatted. All HTML tags are to be generated using the special HTML tags provided by us and are not to be altered in any manner. We will not be responsible for tracking and reporting sales that were not made through a Link formatted to our specifications.

4. REFERRAL FEES

   1. We will pay you Referral Fees on product sales to third parties as defined below. For a product sale to generate a Referral Fee, a Customer must follow a Link (in the format specified by us) from your Site to the Adorama Site, purchase one or more Products, as defined below, using our automated ordering system, and remit full credit card approved payment to Adorama. You will not receive a commission for any sales initiated or completed offline (for example, by telephone or in store). Our determination of whether a commission is payable is final and is binding to you.
   2. You will earn Referral Fees based on the Sale Price of Products, according to fee schedules to be established and issued from time to time by us, which are incorporated by reference in this Agreement, and which we retain the absolute right to modify at any time. "Sale Price" means the sale price on our Site for each product at the time the product sale took place. The Sales Price shall not include costs for shipping, handling, gift-wrapping (where and when applicable), and taxes.

5. FEE AMOUNT

   Referral fees earned pursuant to Section 4 are paid as a percentage of the Sale Price of the Products sold. In our sole discretion, we may establish other special commission rates with respect to certain promotions.

6. FEE SCHEDULE

   All payments shall be made in U.S. dollars. 45 days following the shipment of the order you will receive Referral Fees via the method you selected. If a Product that generated a Referral Fee is returned or canceled within the 45 days, the order will be marked as returned or canceled and no payment will be issued .

7. POLICIES AND PRICING

   All Customers who buy products through this Program will be deemed to be the customers of Adorama. Accordingly, all Adorama rules, policies, and operating procedures (“Policies and Procedures”) concerning customer orders, customer service, and product sales will apply to those Customers. We may change our Policies and Procedures at any time and for any reason. 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 already have listed on your Site, you may not include price information in your product descriptions or otherwise on your Site. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.

8. LIMITED LICENSE/RESTRICTIONS

   1. Adorama grants you a limited, non-exclusive, non-transferable, non-sublicensable revocable right and license during the term to use the Logos, Banners and words or combination of words and images described in Section 2 and such other Icons and images for which Adorama grants express written permission, solely for the purpose of identifying your Site as a Program participant and to assist in generating product sales. You may not modify any of the Licensed Materials in any way. Adorama reserves all rights in the Licensed Materials and all intellectual property rights therein. Subject to the terms and conditions of this Agreement, Adorama grants you a limited, non-exclusive, royalty-free license to use the Sales Information, as defined below, to the extent necessary to fulfill your obligations under this Agreement or for your internal research purposes. Adorama may immediately revoke such licenses at any time and for any reason upon giving you oral, written or electronic notice. You hereby acknowledge and agree that all right, title and interest in the Licensed Materials are exclusively owned by Adorama and/or its licensors and that any goodwill resulting from Affiliate’s use of such Licensed Materials shall inure to the benefit of Adorama and shall automatically vest in Adorama upon use by Affiliate. You hereby acknowledge and agree that Adorama shall own all right title and interest in and to all information that is created or collected in connection with this Agreement, including, without limitation, (i) any contact information collected from any Adorama Customer who enters Adorama’s Site from a link from your Site ("Affiliate Customers") and any information regarding click-through rates, information regarding product purchases by Affiliate Customers ("Sales Information"), and any information regarding high-performing AdWords, keywords or any other similar advertising, search or query words or terms, any information regarding top-converting products, or any other non-public Adorama sales and marketing information (“Marketing Information”). You agree not to disclose during the term and at any time thereafter any Sales Information, Affiliate Customer contact information, or Marketing Information to any third party without Adorama’s prior written approval. You agree not to use or send any email, including but not limited to emails that you send to your customers promoting various offers or merchants, at any time, to advertise or promote Adorama's name, without prior written consent from us.
   2. You may not use the Adorama name, “Adorama”, “Adorama” or any other Adorama Brand Features, or any variation, element, derivation or adaptation thereof (including but not limited to abbreviations, misspellings, stringing of individual names into a single word, or any other variation which has the effect of implying the Adorama name; “Adorama Variations”), in any manner not expressly authorized by this Agreement. Without limiting the generality of the foregoing, Affiliate shall not: 1. use Adorama Brand Features or Adorama Variations in Affiliate’s domain or sub-domain; 2. use Adorama Brand Features or Adorama Variations (or use any type of software download or technology or otherwise engineer Affiliate’s website, search engine, or Affiliate’s service) in such a manner so as to intercept, redirect, or divert Internet traffic or Referral Fees to or from Adorama’s Site(s) without Adorama’s prior written approval; and, 3. bid on or purchase Adorama Brand Features or Adorama Variations as Adwords, keywords, or any other similar advertising, search or query words or terms, on Google, Yahoo, or any other similar search engine service or website. Any violation of this section shall constitute a material breach of the Agreement, and within twenty-four (24) hours of receipt of notice from Adorama of such breach, Affiliate shall cease such use of Adorama Brand Features or Adorama Variations. If Affiliate does not so cure such breach, Adorama may immediately terminate the Agreement, without any charge or liability, in addition to any other rights or remedies Adorama may have under the Agreement, and Adorama reserves the right to bring a trademark infringement action against Affiliate, as well as any other rights or remedies it may have at law or in equity. You agree not to: (i) cache any part of or all of the Licensed Materials, (ii) offer any unauthorized incentives to end users to use the Links, and (iii) offer or make available to end users coupons or promotions that have expired or have not been approved by us.

9. RESPONSIBILITY FOR YOUR SITE

   1. You will be solely responsible for the development, operation, and maintenance of your Site and for all materials that appear on your Site, including, but not limited to the technical operation of your Site and all related equipment; posting Icons on your Site and linking those Icons to our Site; the accuracy and appropriateness of materials posted on your Site (including but not limited to all product-related materials); ensuring that materials posted on your Site do not violate or infringe upon the rights of any third party (including, but not limited to, copyrights, trademarks, privacy, or other personal or proprietary rights) ensuring that materials posted on your Site are not libelous, violate any provision of this Agreement or are otherwise illegal or unlawful.
   2. The accuracy and legality of all product effectiveness claims: you may not make specific claims regarding the effectiveness of any product. without limiting the generality of the foregoing, 1. you shall not make any representations, warranties or guarantees to anyone with respect to the specifications, features or capabilities of the products that are inconsistent with the information distributed or provided by Adorama, 2. you shall not make any false or misleading representations with regard to Adorama or the products, and 3. you shall not post, publish or use any misleading or deceptive advertising materials regarding Adorama or the products. if you violate the foregoing or otherwise make unsubstantiated product claims with respect to products we sell, your membership in the Adorama affiliate program may be terminated immediately upon notice.
   3. We disclaim all liability for the matters described in this Section 9. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the content development, operation, maintenance, and contents of your Site or any breach of any representations, warranties or covenants made by you in this Agreement.

10. TERM/TERMINATION

    The term of this Agreement will begin upon our acceptance of your Program Application and will end when terminated by either party in accordance with the terms of this Agreement. Either you or Adorama may terminate this Agreement at any time and for any reason, with or without cause, by giving the other party written or electronic notice of termination. You are only eligible to earn Referral Fees on sales occurring during the term of this Agreement, and 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. Upon termination of this Agreement, 1. all licenses hereunder shall terminate, 2. you shall immediately remove any Links, Icons, search boxes, or any other Licensed Materials from your Site and 3. sections 8(2), 9(3), 10, 13, 14, 15 and 19, as well as any other provisions which by their nature are reasonably expected to survive the termination of this Agreement, shall survive such termination.

11. 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 our affiliate gateway site. modifications may include, but are not limited to, changes in referral fees, fee schedules, payment procedures, and policies and procedures. 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 our affiliate gateway site will constitute binding acceptance of the change.

12. RELATIONSHIP OF PARTIES

    You and Adorama 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.

13. LIMITATION OF LIABILITY

    Adorama will not be liable to you or any other person or entity for any special, indirect, consequential or exemplary damages (including, without limitation any loss of revenue, profits, or data) arising in connection with this agreement or the program, however caused, and under whatever cause of action or theory of liability brought (including, without limitation, under any contract, negligence or other tort theory of liability, 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. all claims made hereunder by you against us shall be made within ninety (90) days of the act or omission, which forms the basis of such claims.

14. 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, non-infringement, 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 password protected affiliate account, Adorama’s Site or any other Site sponsored by us in connection with this Agreement will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors or termination of any services, products or this Agreement.

15. INDEPENDENT INVESTIGATION

    You acknowledge that you have read this agreement and agreed 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 website. you have independently evaluated the desirability of participating in the program and are not relying on any representation, guarantee, or statement other than as explicitly set forth in this agreement.

16. IDENTIFICATION OF AFFILIATES

    We may identify you or your Site as a participant in the Program without providing you prior notice or obtaining your specific written consent. Such identification may be oral, written, or electronic, and may include, but is not limited to, public announcements, promotional materials, internal and external reports, and public filings.

17. NON-ASSIGNMENT AND SUCCESSORS

    You may not assign or transfer this Agreement, by operation of law or otherwise, without our prior written consent. Any assignment or transfer in violation of the foregoing shall be null and void. 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.

18. SCOPE OF AGREEMENT

    This Agreement and the Fee Schedules constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior or contemporaneous written or oral agreements or representations between the parties.

19. MISCELLANEOUS

    1. This Agreement will be governed by the laws of the United States and the state of New York, without reference to rules governing the choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in New York, NY and you irrevocably consent to the jurisdiction and venue of such courts. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right subsequently to enforce such provision or any other provision of this Agreement. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. You shall not make any public announcement or issue any press release concerning the Agreement or the transactions contemplated hereby, without our prior written consent. We shall not be liable hereunder by reason of any failure or delay in the performance of our obligations on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, acts of war, acts of terrorism, governmental action, or any other cause that is beyond our reasonable control.
    2. As used herein, certain capitalized words (or any variation thereof) shall have the meaning as herein provided. Any conflict between said capitalized words, and any other meaning shall be resolved as herein provided. Unless otherwise stated above, all notices and other communications required or permitted hereunder shall be in writing and shall be delivered personally or transmitted by email to Adorama Inc. at affiliates@Adorama.com, or by Facsimile to (212) 741-0401 or by the United States certified or registered mail, return receipt requested, to Adorama Inc., Web Affiliates, 42 West 18th St. NY, NY 10011 or if to you at the email address designated on your Application.
    3. If the person entering into this Agreement is acting on behalf of his or her company or organization, such person hereby represents to Adorama that he or she has all requisite power and authority to enter into this Agreement on behalf of such company or organization, that this Agreement has been duly authorized by such company or organization and that this Agreement will constitute a legal, valid, a binding obligation of such company or organization. Such person hereby agrees to indemnify and hold harmless Adorama from any and all claims, damages and expense (including without limitation attorney’s fees) arising from any breach of this section.