Dated November 11, 2018.
Our affiliates are very important to us. We do our best to treat you with fairness and respect, and we ask the same consideration of you. We have written the following Book Cave Affiliate Program Agreement with this goal in mind, and also to protect our company's good name. So please read through the entirety of this Book Cave Affiliate Program Agreement (this "Agreement").
If you have any questions, please don't hesitate to contact us here, or by email at firstname.lastname@example.org.
PLEASE READ THE ENTIRE AGREEMENT.
YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND BOOK CAVE, LLC (DBA BOOK CAVE).
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.
1.1. This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in the Book Cave Affiliate Program. The purpose of this Agreement is to allow HTML linking between your website and the Book Cave website (https://mybookcave.com) for the purpose of referring potential customers to Book Cave. Please note that throughout this Agreement, "we," "us," and "our" refer to Book Cave, and "you," "your," and "yours" refer to the Affiliate.
1.3. You must be approved by Book Cave before your participation in the Book Cave Affiliate Program. Book Cave reserves the right to withhold or refuse approval for any reason and without providing any further detail as to the reason(s) of the application denial. Approval may be withdrawn by Book Cave at any time and for any reason.
2. Affiliate Obligations
2.1. To begin the enrollment process, you will complete and submit the online application at the Book Cave website. We will evaluate your application within a reasonable time frame. We may reject your application at our sole discretion.
We will deny your application or cancel an existing Affiliate account if we determine that your site is unsuitable for our Affiliate 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 the law.
2.1.6. Includes "Book Cave", "My Book Cave", "My Book Ratings", "Book Cave Direct", 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 at our sole discretion.
2.1.8. Contains software downloads that potentially enable diversions of commission from other Affiliates in our program.
2.1.9. Promotes “get-rich-quick” schemes that have no tangible business value.
2.1.10. Is in violation of any other term or condition referenced herein.
2.2. You may not create or design your 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 Book Cave or any other affiliated business.
2.3. Affiliate website(s) must be fully functional at all levels.
2.4. Affiliate's policies must be compliant with state and federal laws and regulations, including but not limited to
2.4.1 The CAN-SPAM Act of 2003.
2.4.2 GDPR regulations regarding data protection enacted on May 25, 2018, if the Affiliate is doing business within the EU.
We reserve the right to review your compliance as necessary. Failure to prove compliance may result in termination from the Book Cave Affiliate Program.
2.5. Spawning process pop-ups are prohibited.
2.7. As a member of the Book Cave Affiliate Program, you will have access to the Affiliate Dashboard. Here you will have access to performance statistics lists and graphs, marketing assets (including links and banners), and the ability to update your contact and payment information. 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 you with. Book Cave is not responsible for any missed conversions if any supplied link is modified in any way by you.
2.8. 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 for compliance with this Agreement and/or to notify you of any changes that we feel could enhance your performance.
2.9. It is entirely your responsibility to comply with 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 text, 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.
2.10. It is your obligation to review this Agreement regularly. You must stay aware of any changes to the Book Cave Affiliate Agreement, although Book Cave will use reasonable efforts to notify you of any changes.
2.11. This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated hereunder.
3. Book Cave Rights and Obligations
3.1. We have the right to monitor your site 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 website are appropriate. 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 Book Cave Affiliate Program.
3.2. Book Cave reserves the right, at any time, to review your placement of Book Cave promotional material and reject the use of links. Book Cave reserves the right to require that you change the placement or use to comply with the guidelines provided to you.
3.3. Book Cave reserves the right to terminate this Agreement and your participation in the Book Cave Affiliate Program immediately and without notice to you should you commit fraud in your use of the Book Cave Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, Book Cave shall not be liable to you for any commissions for such fraudulent sales.
3.4. This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated hereunder.
4.1. Either you or we may end this Agreement at any time, with or without cause, immediately. Termination notice may be provided via email and if so, you must immediately cease all advertising activities.
4.2. This Agreement will terminate immediately upon any breach of this Agreement by you. Should any violations of the Book Cave Affiliate Program terms be discovered, any pending payments shall be forfeited.
4.3. If at any time there has been no substantial activity on your account for at least 1 year, then we will have the right, with 7 days email notice, to close your account. Any pending payments shall be forfeited.
5. Qualifying Purchases and Qualifying Revenue
5.1. We will pay commissions as described in section 7 of this Agreement in connection with “Qualifying Purchases”, which (subject to the exclusions described in this Agreement) occur when
5.1.1. A customer clicks through your referral link the Book Cave site, and
5.1.2. During a Single Session, the customer submits a single retailer and/or group retailer promotion, and
5.1.3. The promotion is approved by Book Cave staff, and
5.1.4. Customer pays for promotion.
5.2. A Single Session starts when a customer clicks through your referral link to the Book Cave site, and ends upon the first to occur of the following:
5.2.1. 30 days elapse from that click, or
5.2.2. The customer clicks through to the Book Cave site using a referral link that is not your own referral link.
5.3. For each Qualifying Purchase, the corresponding “Qualifying Revenue” is equal to the amount we actually receive from that Qualifying Purchase, less any rebates, service charges, taxes (e.g. sales tax and VAT), PayPal processing fees, and bad debt.
Book Cave pays active Affiliates 10% of Qualifying Revenue.
7.1. We will pay commissions in US Dollar approximately 60 days following the end of each calendar month in which they were earned. We reserve the right to hold commissions until the total amount due to you reaches the minimum of 50 US Dollar.
7.2. Affiliate payments shall be made via PayPal only. It is the sole responsibility of Affiliates to ensure that their payment information is current and correct. Payments sent to a valid email address cannot be reversed or re-transmitted for any reason. Additionally, PayPal payments are subject to total dollar amount limits as imposed by PayPal, and if that limit should be exceeded, the Affiliate will receive as many separate payments as necessary to reach the full amount earned in the given payment period. Kindly review PayPal's payment terms and conditions.
7.3. Any payments that have been returned to Book Cave for any reason, such as incorrect PayPal email addresses, may be re-issued upon request and are subject to a 20 US Dollar reissue fee, which will be deducted from the original payment amount. Should this deduction cause the total payment amount to fall below the minimum payment threshold as outlined in section 7.1, Book Cave reserves the right to withhold issuance until the threshold is reached in subsequent payment periods.
7.4. If any excess payment has been made to you for any reason whatsoever, we reserve the right to adjust or offset the same against any subsequent commissions payable to you under this Agreement.
7.5. We will use commercially reasonable efforts to accurately and comprehensively track Qualifying Purchases for the purposes of our internal tracking, and to calculate your eligible commissions. This information will be available for your review via the Affiliate Dashboard.
7.6. Book Cave will only pay Affiliates for commissions that are earned and tracked while active members of the Book Cave Affiliate Program.
7.7. Any pending payments shall be forfeited by the affiliate if
7.7.1. The Affiliate is removed from the Book Cave Affiliate Program because of non-compliant behavior, or
7.7.2. The Affiliate account has been closed due to inactivity in accordance with 4.3. Any unpaid accrued commissions in your account may be subject to escheatment under applicable law.
7.8. Payments made to you, as reduced by all deductions or withholdings described in this Agreement, will constitute full payment and settlement to you of amounts payable under this Agreement.
7.9. In addition to any other remedies that may be available to Book Cave, in the event of any breaches by you of this Agreement, you shall forfeit your rights to any amounts owed by Book Cave to you.
Any questions or disputes regarding the data or payout provided by Book Cave must be submitted by email to email@example.com within five (5) business days from the most recent payment date, otherwise the information will be deemed accurate and accepted as such by you.
9. Promotion Restrictions
9.1. You are free to promote your own websites, but naturally, any promotion mentioning Book Cave could be perceived by the public or the press as a joint effort. Any pending balances owed to you will not be paid if your account is terminated because of unacceptable advertising. To avoid confusion, the following promotional restrictions are to be followed by all participating Affiliates:
9.1.1. Certain forms of advertising are always prohibited by Book Cave. For example, advertising commonly referred to as "spamming" is unacceptable to us and could cause damage to our name.
9.1.2. 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.
9.1.3. You may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address.
9.1.4. You may use mailings to customers to promote Book Cave 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.
9.1.5. You may post to newsgroups to promote Book Cave so long as the news group specifically welcomes commercial messages.
9.1.6. At all times, you must clearly represent yourself and your web site(s) as independent from Book Cave and its clients.
9.1.7. 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 Book Cave Affiliate Program.
9.2. Affiliates that advertise among other keywords or exclusively bid in their pay-per-click campaigns on keywords such as Book Cave, My Book Cave, mybookcave.com, My Book Ratings, Book Cave Direct, mybookratings.com, bookcavedirect.com and/or any misspellings or similar alterations of these—be it separately or in combination with other keywords—will be considered trademark violators, and will be terminated from the Book Cave 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 pay-per-click bidding behavior.
9.3. Affiliates are prohibited from keying in prospect's information into the signup form with the intent of misrepresenting or falsifying leads.
9.4. 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 our site (i.e., no page, content, or branding from our site is visible on the end-user's screen). As used herein, "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, Bing, Yahoo, AOL, and similar search or directory engines); (c) sets commission tracking cookies through loading of Book Cave's site in IFrames, hidden links, and automatic pop ups that open Book Cave's site; (d) targets text on websites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; or (e) removes, replaces or blocks the visibility of affiliate banners with any other banners, other than those that are on websites 100% owned by the owner of the application.
9.5. Book Cave Affiliates are rewarded for networking and bringing in new customers through their own marketing efforts. Book Cave prohibits Affiliates from utilizing their Affiliate link to refer their own customer account(s) to receive commission (“self referrals”). This also includes accounts that are not under their name but are paid for using a payment medium that they own. Also prohibited are referrals for individuals of the Affiliate’s immediate family or household.
10. Grant of Licenses
10.1. Book Cave grants 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 Book Cave's Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of Book Cave and the goodwill associated therewith (including any data derived from the Book Cave Affiliate Program) will inure to the sole benefit of Book Cave.
10.2. 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.
11.1. Any information relating to Book Cave or any of its affiliates that we provide or make accessible to you in connection with the Book Cave Affiliate Program that is not known to the general public or that reasonably should be considered to be confidential is Book Cave's Confidential Information.
11.2. You agree to use Confidential Information only to the extent reasonably necessary for your performance as an Affiliate under this Agreement, and to ensure that all persons or entities who have access to Confidential Information will be made aware of and will comply with the obligations in this provision.
11.3. You will not disclose Confidential Information to any third party (other than your affiliates bound by confidentiality obligations) and you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement.
12. Representations and Warranties
12.1. You represent and warrant that
12.1.1. This Agreement has been duly and validly communicated and agreed to and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
12.1.2. 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 other party.
12.1.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
THE BOOK CAVE AFFILIATE PROGRAM, THE BOOK CAVE SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE BOOK CAVE SITE, INCLUDING ANY SPECIAL LINKS, LINK FORMATS, CONTENT, AND OUR AFFILIATES’ DOMAIN NAMES, TRADEMARKS AND LOGOS, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INTELLECTUAL PROPERTY RIGHTS, INFORMATION, AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE AFFILIATE PROGRAM ARE PROVIDED “AS IS” AND “AS AVAILABLE”. BOOK CAVE MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING BOOK CAVE SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN. ANY IMPLIED WARRANTIES OF BOOK CAVE 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.
14. 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 BOOK CAVE'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 AGREEMENT.
You hereby agree to indemnify and hold harmless Book Cave, 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.
16. Governing Law
User expressly agrees that this Agreement shall be governed by, and construed in accordance with, the laws of the State of Utah, and that any claim or action shall only be filed in the state or federal courts sitting in Utah County, Utah, and you agree and expressly consent to the exercise of exclusive personal jurisdiction in such courts. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
17.1. 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 Book Cave. 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 site or otherwise, that reasonably would contradict anything in this section.
17.2. Neither party may assign its rights or obligations under this Agreement to any party, except, that the assignment to a third party who obtains all or substantially all of the business or assets of a party shall be permitted subject to the reasonable consent of the other party (i.e. the non-assigning party).
17.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
17.5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
17.6. 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.
17.7. Whenever used in this Agreement, the terms “include(s)", “including”, and “for example” are used and intended without limitation.
We reserve the right to 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 revised Agreement on our web site, or by sending notice of such modification to you by email to the email address associated with your Book Cave account. Modifications may include, but are not limited to, changes in the payment procedures and Book Cave Affiliate Program rules. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. YOUR CONTINUED PARTICIPATION IN THE BOOK CAVE AFFILIATE PROGRAM FOLLOWING THE POSTING OF THE CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL INDICATE YOUR AGREEMENT TO THE CHANGES.