Affiliate Terms
Awin Program Agreement
Birdie & Claire, LLC (hereinafter referred to as “The Company”) Affiliate Agreement
This Agreement contains the complete terms and conditions that apply to your participation as an affiliate in the Affiliate Program of The Company, and the establishment of links from your affiliate website to our website www.birdieandclaire.com.
Definitions
Customer: The user sent to The Company site via affiliate link
Affiliate / You: The publisher advertising links/promotions of The Company
Enrollment in the Affiliate Program
First, you need to submit a complete Affiliate Program Application. We will evaluate your application and will notify you of your acceptance or rejection. We may reject your application if we determine (at our sole discretion) that your site is unsuitable for the Affiliate Program for any reason. If we reject your application, you are welcome to reapply to the Affiliate Program at any time.
Prohibited Sites/Verbiage
● Sites that promote sexually explicit material or violence.
● Sites that promote discrimination based on race, sex, religion, national origin, or physical disability.
● Sites that promote illegal activities.
● Sites that include violent, obscene, defamatory, libelous, slanderous and/or unlawful content;
● Sites that incorporate any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
Spam
Affiliate agrees to not utilize SPAM in promoting The Company. This action will result in the immediate termination of Affiliate account with a cancellation of any pending commissions. Affiliate will also be in violation of The Company’s Affiliate Agreement and subject to legal action and be held liable for any financial loss incurred by The Company. Any service interruptions to The Company’s website as a result of Affiliates spamming will be billed to Affiliate at 500 U.S. dollars per hour until service is restored.
For the purpose of this agreement SPAM is defined as emailing ANYONE, in bulk or by single mailing, about The Company, who has not specifically requested the information directly from Affiliate.
Promotion of Our Affiliate Relationship
As an Affiliate Site, we will make available to you Links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link") or banners, which, subject to the terms and conditions hereof, you may display as often and in as many areas on your site as you desire. The Links will serve to identify your site as a member of our Affiliate Network and will establish a link from your site to ours.
Links
Subject to the terms of clause © below, we will provide you with Links, which will consist of a graphic images or text provided by us (and subject to change from time to time in our sole discretion). These Links will connect your site directly to ours. By utilizing these Links, users of your site will be able to order, directly from us, any product(s) that were described or referenced on your site.
Agreements Regarding Links
In utilizing Links, you also agree that you will display on your site only those graphic images (indicating a Link) that are 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 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.
Pay Per Click (“PPC”) Bidding Rules
Publishers are prohibited to bid on the following:
● Branded/trademarked terms
● Derivatives of branded/trademarked terms
● Broad-match based on branded/trademarked terms
Paid Search publishers are also not allowed to use the brand name Birdie & Claire in:
● Display URL
● Title & Ad Copy
Pay-Per-Click Guidelines
As a condition of being a participant in our Affiliate Program, you agree not to participate PPC advertising without the Company’s prior written consent, which may be revoked at the Company’s sole and exclusive discretion. In the event that the Company does provide written consent, you must adhere to the following PPC guidelines:
1. You may not bid on any of the Company’s registered trademarks (“Trademarked Terms”), including any variations or misspellings thereof, for search or content based campaigns on advertising networks, search services, or similar services, including but not limited to Google, MSN or Yahoo.
2. You may not use the Company’s Trademarked Terms in sequence with any other keyword.
3. You may not use the Company’s Trademarked Terms in Your ad title, ad copy, display name or as the display URL.
4. You may not directly link to the Company’s website from any PPC ad or use redirects that yield the same result. Visitors must be directed to an actual page on your website.
5. You may not bid in any manner appearing higher than the Company for any search term in position 1-5 in any auction style PPC advertising program.
6. If you automate your PPC campaigns, it is your responsibility to exclude the Company’s Trademarked Terms from your program and the Company strongly suggests you add the Company’s Trademarked Terms as negative keywords.
Our 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 via Awin. We will be responsible for order entry, payment processing, shipping, cancellations, returns, and related customer service.
Payment
1. Commission will be calculated and issued via Awin polices.
2. Awin may charge Processing fees. Processing fees will be deducted from the amount of the commission paid. Fees may change at any time.
Other Responsibilities and Opportunities of Affiliate Sites
If you qualify and agree to participate as an Affiliate Site, you shall display Links prominently throughout your site as you see fit and with our consent.
Compliance with the Agreement:
● 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.
● We will monitor for FTC compliance to ensure disclosures are adequately added
Reports of Sales
Awin will provide you a username and password and you have the ability to enter a password-protected site to receive your sales statistics on a daily basis.
Your Responsibilities
You are solely responsible for ensuring that reviews, descriptions, and articles on your site comply with applicable copyright, FTC disclosure and other laws. You must have express permission to use another party’s copyrighted or other proprietary material. We are not responsible for violations.
Independent Contractors
Both the Affiliate and the Company agree that they are entering into this Affiliate Agreement as independent contractors and this agreement creates no partnership, agency franchise, joint venture, sales representative or employment relationship between them. You have no authority to accept or make any representations or offers on the behalf of the Company. You cannot make any statements on your website or other social media or otherwise that would contradict anything in this section.
Non-Exclusivity This Agreement does not create an exclusive relationship between you and the Company. You are free to work with similar affiliate program providers in any category. This agreement imposes no restrictions on the Company to work with any individual or company the Company may choose.
Policies and Pricing
Customers who buy The Company’s products through the Affiliate Program will be deemed to be customers of The Company. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and 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 our products sold under the Affiliate Program in accordance with our own pricing policies. Our prices and product availability may vary from time to time. Because price changes may affect products that you already have listed on your site, you should update pricing often or not include price information in your product descriptions.
Customers sent to The Company must be the end user of the product/service. If Affiliate is placing order on behalf of the customer, approval of this promotional method must be explicitly provided by The Company.
Publicity
You shall not create, publish, distribute, or permit any written material that makes reference to us without first submitting such material to us and receiving our written consent, which we agree shall not be unreasonably withheld.
Licenses and Use of the Company’s logos and Trademarks
WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS AND UNDER THE CONDITIONS PROVIDED FOR HEREIN, TO USE OUR LOGOS, TRADE NAMES, TRADEMARKS, AND SIMILAR IDENTIFYING MATERIAL RELATING TO US (COLLECTIVELY, THE "LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF SELLING PRODUCTS ON YOUR SITE FOR THE COMPANY. YOU MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY WITHOUT WRITTEN PERMISSION. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS WHILE YOU ARE A MEMBER IN GOOD STANDING OF THE AFFILIATES PROGRAM.
● You shall not make any specific use of any Licensed Materials for purposes other than selling products on your site for The Company, without first submitting a sample of such to us and obtaining the prior written consent of The Company’s Affiliate Program Manager, which shall not be unreasonably withheld. We reserve all of our rights in the Licensed Materials and of our other proprietary rights. We may revoke your license at any time, by giving you written notice.
Promotion through Google Shopping / Product Listing Ads are not allowed unless express permission is provided.
Confidentiality
For the purpose of this Agreement, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, and (ii) Company customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process. Any information regarding Your and Company’s business relationship is not available for the general public and should be considered as “Confidential Company information”. You cannot share any “Confidential Company information” without our written consent except when it is required by laws.
Amendment; Modifications
We may amend or modify any of the terms and conditions of this Agreement at any time, and you can review the most current version of this Agreement at any time at the Awin site.
You will be notified by email of significant changes to this Agreement. If the modifications are unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in this Affiliate Program after a change notice has been emailed will constitute binding acceptance of the change.
No Assignment
Neither party may assign its rights or obligations under this Agreement to any third party, except to a party who obtains all or substantially all of the business or assets of a party to this Affiliate Agreement.
Representations and Warranties
You hereby represent and warrant to us as follows:
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.
2. The development, operation, and contents of your site and/or social (YouTube, TikTok, Facebook, Instagram) account(s) do not infringe upon the copyright, trademark, or any other right of any person or entity.
3. All information contained in your application to the Affiliate Program will be true, correct and complete in all material respects.
Fraud
If you commit fraud or falsify information in connection with referring visitors and/or sales to the Company through the Links on your site, this Agreement will be terminated immediately. In addition, you will be liable to the Company for any and all damages that the Company suffers as a result of such actions. You will also be responsible for returning to the Company all commissions received for fraudulent/falsified visits and/or sales, and we will not hesitate to pursue all legal causes of action against you to the fullest extent possible under the law.
Anti-Predatory Advertising Policy
You will be removed from the Company Affiliate Program and forfeit any pending commissions if you are utilizing or distributing software downloads that potentially enable diversions of commission from other affiliates in our program.
Indemnification
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.
Limitation of Liability
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, DIRECTORS, OR EMPLOYEES, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM INTERACTIONS WITH THE COMPANY.
IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, THE COMPANY IS DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE COMPANY’S AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION OR FEE AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS BUT NOT MORE THAN TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF LIABILITY, SO THIS PROVISION MAY NOT APPLY TO YOU.
Term
The terms of this Agreement will begin upon acceptance of your application. This Agreement shall commence on the date of approval of your Affiliate Program application and shall continue thereafter in full force and effect month-to-month until terminated at any time by either party upon notice to the other party in writing or by e-mail.
Termination
Your affiliate application and status in the Program may be suspended or terminated for any of the following reasons:
§ Inappropriate advertisements (false claims, misleading hyperlinks, etc.);
§ Spamming (mass email, mass newsgroup posting, etc.);
§ Advertising on sites containing or promoting illegal activities;
§ Failure to disclose the affiliate relationship for any promotion that qualifies as an endorsement under existing Federal Trade Commission guidelines and regulations, or any applicable state laws.
§ Violation of intellectual property rights. The Company reserves the right to require license agreements from those who employ trademarks of the Company in order to protect our intellectual property rights;
§ Offering rebates, coupons, or other form of promised kick-backs from your affiliate commission as an incentive. Adding bonuses or bundling other products with the Company, however, is acceptable.
§ Self referrals, fraudulent transactions, suspected Affiliate fraud.
In addition to the foregoing, the Company reserves the right to terminate your Affiliate account at any time, for any violations of this Agreement or no reason.
Upon termination of this Agreement for any reason, you will immediately cease use of, and remove from your site and/or social media accounts, all Links to our site, and all Company trademarks, trade dress, images and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program.