TERMS AND CONDITIONS
In consideration of the promises set forth below, we agree as follows:
1. Offers and Engagements.
1.1. From time to time, shopamala.com (“AMALA”) may post offers to pay to other participants a specified commission in return for certain advertising services leading to a Qualifying Link (defined below).
1.2. If an Offer made by one party is accepted by the other party in accordance with the Offer's terms, an "Engagement" will have been formed.
1.3. At any time prior to Affiliate providing a Qualifying Link, AMALA may with or without notice (a) change, suspend or discontinue any aspect of an Offer or an Engagement or (b) remove, alter or modify any graphic or banner ad submitted by AMALA for an Offer or an Engagement. Affiliate agrees to promptly implement any request from AMALA to remove, alter or modify any graphic or banner ad submitted by AMALA that is being used by Affiliate as part of an Engagement.
2. Affiliate's Responsibilities.
2.1. Affiliate will link the Affiliate Site to areas within the AMALA Site using special URLs specified in the Engagement (the "Required URLs"). Affiliate may post as many links to the Required URLs and the rest of the AMALA Site as it likes on Affiliate Site. The position, prominence and nature of links on the Affiliate Site shall comply with any requirements specified in the Engagement, but otherwise will be in the discretion of Affiliate.
2.2. Affiliate agrees not to make any representations, warranties or other statements concerning AMALA, the AMALA Site, any of AMALA's products or services, or the AMALA Site policies, except as expressly authorized by the Engagement. In addition, Affiliate shall not make any representations or create the appearance (expressed or implied) that a visitor to the Affiliate Site is visiting the AMALA Site.
2.3. Affiliate is responsible for notifying AMALA of any malfunctioning of the Required URLs or other problems with Affiliate's participation in the Engagement. AMALA will respond promptly to all concerns upon notification by Affiliate. Affiliate is solely responsible for the development, operation and maintenance of the Affiliate Site.
2.4. Affiliate shall not use any email, at any time, to advertise or promote AMALA’s name, or any product or service related to or offered by AMALA without the prior written consent of AMALA for each individual campaign.
3.1. AMALA agrees to pay Affiliate the commission if AMALA sells to a visitor to the AMALA Site (a "Customer") a product or service that is the subject of the Engagement and if that Customer has accessed the AMALA Site and purchased the product or service from the AMALA Site via a Qualifying Link. Commissions are not calculated on any taxes or shipping and handling charges, and shall be reduced by any discounts, chargebacks, bad debt and returns. In no event will Affiliate receive any compensation for purchases made on the AMALA Site that are rejected by AMALA for reasons including, without limitation, fraud, cancellation, or non-compliance with any reasonable requirements established by AMALA as a condition of sale. AMALA will pay commissions on merchandise purchases (excluding gift certificates), less taxes, applicable discounts, shipping and handling that are shipped to residents of and addresses within the United States only. Commissions will be paid in accordance with the terms set forth in the Offer. If a return is made for a sale after the payment cycle for the commission on that sale, then the commission paid on such return will be credited back to AMALA during the next applicable payment cycle. If commissions are paid on any returns that occur after termination of this Agreement or any Engagement and after the final payment of commissions, then AMALA shall issue an invoice to Affiliate for said amounts, which Affiliate agrees to pay to AMALA within 30 days after the date of such invoice.
3.2. A "Qualifying Link" is a link from the Affiliate Site to the AMALA Site using one of the Required URLs or any other URL provided by AMALA for use in the Amala Affiliate Program if it is the last link to the AMALA Site that the Customer uses during a Session where a sale of a product or a service to Customer occurs.
A "Session" is the period of time beginning from a Customer's initial contact with the AMALA Site via a link from the Affiliate Site and terminating when the earlier to occur of the following: (1) the Customer returns to the AMALA Site via a link from a site other than the Affiliate Site; (2) the time specified in the Engagement relating to such Qualifying Link and the applicable return days; or (3) the Engagement expires or is terminated.
3.3. AMALA shall have the sole right and responsibility for processing all orders made by Customers. Affiliate acknowledges that all agreements relating to sales to Customers shall be between AMALA and the Customer.
3.4. All determinations of Qualifying Links and whether a commission is payable will be made by AMALA and will be final and binding on both AMALA and Affiliate. Prices for the products and services sold on the AMALA Site will be set solely by AMALA in its sole discretion.
4. Ownership and Licenses.
4.1. Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.
4.2. AMALA grants Affiliate a revocable, non-exclusive, nontransferable, non-sub licensable, United States based license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology (collectively, “AMALA Intellectual Property”), as designated in the Engagement or during the registration process in Amala Affiliate Program, on the Affiliate Site solely for the purpose of creating links from the Affiliate Site to the AMALA Site during Engagements. Except as expressly set forth in this Agreement or permitted by applicable law, Affiliate may not copy, distribute, modify, reverse engineer, or create derivative works from the AMALA Intellectual Property. Affiliate may not sublicense, assign or transfer any such licenses for the use of the AMALA Intellectual Property, and any attempt at such sublicense, assignment or transfer is void. Affiliate shall not, without the prior written consent of AMALA: (i) display any webpages from the AMALA Site except as otherwise provided in this Agreement; (ii) cache, store, or copy any portion of the AMALA Site; (iii) modify or alter any pages of the AMALA Site, including, without limitation, by removing any proprietary rights notices on the AMALA Site; (iv) frame any portion of the AMALA Site in conjunction with any materials that violate or infringe upon any right of any third party or in conjunction with any materials which AMALA, in its sole discretion, finds objectionable.
4.3. Affiliate grants AMALA a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Affiliate solely for co-branding purposes or as a return link from the AMALA Site to the Affiliate Site. AMALA will remove such graphic or banner ad upon Affiliate's request. Affiliate acknowledges and agrees that AMALA is not obligated to place any graphic or banner ad submitted by Affiliate on the AMALA Site.
4.4. Affiliate may not use the shopamala.com, amalabeauty.com, or AMALA name, or any variation or misspelling thereof, in any manner not expressly authorized in this Agreement, including, without limitation, the following: (i) Affiliate may not post AMALA sales or on the Affiliate Site without AMALA’s prior written consent; (ii) Affiliate may not use the amalabeauty.com, or AMALA name or trademarks, or any variation or misspelling thereof, in metatags, in hidden text or source code, in emails or newsletters, in searchable keywords, in Affiliate’s ad copy, or in Affiliate’s domain or sub-domain or any other part of Affiliate’s URL; (iii) Affiliate may not engineer the Affiliate Site in a manner that pulls internet traffic away from the AMALA Site; (iv) Affiliate may not engineer the Affiliate Site in a manner that would be considered “keyword stuffing,” such as using terms in hidden or live text that is meant to attract search engine spiders in order to determine higher relevancy to amalabeauty.com; (v) Affiliate may not use redirect URLs (ads that contain display URL that automatically redirect to the AMALA Site), Bridge pages (ads for webpages that act as an intermediary, whose sole purpose is to link or redirect traffic to the AMALA Site), or “framing” or “wrapping” (ads for webpages that replicate the look and fell of the AMALA Site); (vi) Affiliate may not launch the AMALA Site directly from search engine listings or from the Affiliate Site unless the visitor clicks through a AMALA banner, logo or product; (vii) Affiliate may not bid on keyword or keyword strings on any Pay per Click Search Engines that is or includes one of AMALA’s trademarks or a derivation or misspelling of a AMALA trademark, or any other word or term that is likely to cause confusion regarding its affiliation with amalabeauty.com, or AMALA. Some examples of these keywords include, without limitation, “AMALA”, “amalaskincare.com”, “AMALA Skincare”, “AMALA Cosmetics”, “AMALA Beauty.”
5.1. Either party may terminate this Agreement at any time, for any reason, provided that they provide at least five days’ prior written notice of such termination to the other party. Termination of this Agreement shall also terminate any outstanding Engagements. However, all rights to payment, causes of action and any provisions which by their terms are intended to survive termination, shall survive termination of this Agreement.
5.3. Upon the termination of this Agreement for any reason, Affiliate shall immediately stop use of and remove from the Affiliate Site, all links to the AMALA Site and AMALA Intellectual Property, and any other materials provided by or on behalf of AMALA to Affiliate pursuant to this Agreement or any Engagement.
6.1. Each party represents to the other that (a) it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby, and (b) any material which is provided to the other party and displayed on the other party's site will not (i) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, anti-discrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
6.2. EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.1. Each party hereby agrees to indemnify, defend and hold harmless the other party and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein. The party seeking indemnification shall provide the indemnifying party with prompt written notice of any such claims, reasonable cooperation in the defense of any such claims, and the right to defend and/or settle any such claims provided that no such settlement imposes any liability on the indemnified party.
9. Limitation of Liability.
9.1. In no event shall either party be liable to the other party for any indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages. AMALA’s total cumulative liability for direct damages hereunder and under the Engagements shall not in any event exceed the commissions paid to Affiliate during the 12 months immediately preceding the date on which the alleged liability arose.
10.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
10.2. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the State of Georgia, without regard to its conflicts of law provisions. Any action to enforce this Agreement shall be brought solely and exclusively in the federal or state courts located in the City and County of Smyrna, Georgia. If you need to send official correspondence, send it via registered mail or nationally recognized overnight carrier (i.e. Federal Express, UPS) to AMALA's headquarters to the attention of AMALA's legal department.
10.3. This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution may be achieved in any format convenient to the parties.
10.5. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
10.6. This Agreement represents the entire agreement between the parties and supersedes any and all prior oral and written negotiations and agreements between them with respect to its subject matter. This Agreement can only be modified or amended through a written instrument prepared by AMALA and accepted by Affiliate.