Affiliate Terms and Conditions
Affiliate Program Operating Agreement
Updated: May, 2020
This Affiliate Program Operating Agreement (“Operating Agreement”) contains the terms and conditions that govern your participation in the Affiliate Program (the “Program”). “We,” “us,” or “our” means Baby Boldly.com. “You” or “your” means the applicant. A “site” means a website. “Partner Site” means the e-commerce/retail partner using the Baby Boldly affiliate tracking software. “Your Site” means any site(s), any software application(s) and any Mobile Application (as defined hereinafter) that you link to the partner site. "Affiliate Commissions" means commissions earned for a successful and verified sale of product on the Partner Site by a customer using your referral link.
BY CHECKING THE BOX INDICATING THAT YOU AGREE TO THE TERMS AND CONDITIONS OF THIS OPERATING AGREEMENT, OR BY CONTINUING TO PARTICIPATE IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE, REVISED OPERATING AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON OUR SITE, YOU (A) AGREE TO BE BOUND BY THIS OPERATING AGREEMENT; (B) ACKNOWLEDGE AND AGREE THAT YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS OPERATING AGREEMENT; AND (C) HEREBY REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR) AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THIS OPERATING AGREEMENT. IN ADDITION, IF THIS OPERATING AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS OPERATING AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS OPERATING AGREEMENT.
1. Description of the Program
The purpose of the Program is to permit you to advertise our Products on Your Site and to earn Affiliate Commissions for Qualifying Purchases (defined in Section 7) made by your end users. A “Product” is any item sold on our site, other than any products that are explicitly defined as excluded products defined in the exclusions table in the Affiliate Program Commissions Schedule (collectively, “Excluded Products”). Product may also include certain services, if any, expressly included on the Affiliate Program Commissions Schedule. In order to facilitate your advertisement of Products, we may make available to you data, images, text, link formats, widgets, links, and other linking tools, and other information in connection with the Program ("Content"). Content specifically excludes any data, images, text, or other information or content relating to products offered on any site other than the Partner Site.
To begin the enrollment process, you must submit a complete and accurate application to participate in the Program. You must identify Your Site in your application. We will evaluate your application and notify you of its acceptance or rejection. We may reject your application in our sole discretion including if we determine that Your Site is unsuitable.
If we reject your application, you are welcome to reapply at any time. However, if we accept your application and we later determine that Your Site is unsuitable, we may terminate this Operating Agreement at any time in our sole discretion.
You will ensure that the information in your Program application and otherwise associated with your account, including your email address and other contact information and identification of Your Site, is at all times complete, accurate, and up-to-date. We may send notifications (if any), approvals (if any), and other communications relating to the Program and this Operating Agreement to the email address then-currently associated with your Program account. You will be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current.
3. Links on Your Site
After you have been notified that you have been accepted into the Program, you may display Special Links on Your Site. “Special Links” are links to the Partner Site that you place on Your Site in accordance with this Operating Agreement, that properly utilize the special “tagged” link formats we provide, and that comply with the Affiliate Program Linking Requirements Special Links permit accurate tracking, reporting, and accrual of Affiliate Commissions.
You may earn Affiliate Commissions only as described in Section 7 and only with respect to activity on the Partner Site occurring directly through Special Links. We will have no obligation to pay you Affiliate Commissions if you fail to properly format the links on Your Site to the Partner Site as Special Links, including to the extent that such failure may result in any reduction of Affiliate Commissions amounts that would otherwise be paid to you under this Operating Agreement.
If you wish to include Special Links in a software application designed and intended for use on mobile phones, tablets, or other handheld devices (“Mobile Application”), you must include the name of the Mobile Application and the link to your Mobile Application in your application to the Program. The suitability and other requirements of this Section 3 and the Mobile Application Policy will apply to Mobile Applications. We will evaluate your application and notify you of its acceptance or rejection. A Mobile Application that is accepted will be an "Approved Mobile Application" for the purposes of this Agreement.
Special Links displayed in Approved Mobile Applications may be served by the Affiliate API or Partner API(“Affiliate API”) or the Product Advertising API, including any Special Links displayed within an integrated web browser and must use the Affiliate ID we have assigned to you expressly for your Approved Mobile Applications.
4. Program Requirements
By participating in the Program, you agree that you will comply with the Affiliate Program Participation Requirements and all pages, schedules, policies, guidelines, and other documents and materials referenced in this Operating Agreement (collectively, “Operational Documentation”).
You will provide us with any information that we request to verify your compliance with this Operating Agreement or any Operational Documentation. If we determine that you have not complied with any requirement or restriction described on the Associates Program Participation Requirements page or any other Operational Documentation or that you have otherwise violated this Operating Agreement, we may (in addition to any other rights or remedies available to us): (a) withhold any Affiliate Commissions payable to you under this Operating Agreement,; (b) close any other accounts you may have or may open in the future, without payment of any Affiliate Commissions; (c) terminate this Operating Agreement; or (d) undertake all of the above actions. In addition, you hereby consent to us:
- sending you emails relating to the Program from time to time;
- monitoring, recording, using, and disclosing information about Your Site and visitors to Your Site that we obtain in connection with your display of Special Links (e.g., that a particular customer clicked through a Special Link from Your Site before buying a Product on the Partner Site) in accordance with the Privacy Notice; and
- monitoring, crawling, and otherwise investigating Your Site to verify compliance with this Operating Agreement and the Operational Documentation.
5. Responsibility for Your Site
You will be solely responsible for Your Site, including its development, operation, and maintenance and all materials that appear on or within it.
We will have no liability for any material on or issue with Your Site, and you agree to defend, indemnify, and hold us, our affiliates and licensors, and our and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) relating to (a) Your Site or any materials that appear on Your Site, including the combination of Your Site or those materials with other applications, content, or processes; (b) the use, development, design, manufacture, production, advertising, promotion, or marketing of Your Site or any materials that appear on or within Your Site, and all other matters described in this Section 5; (c) your use of any Content, whether or not such use is authorized by or violates this Operating Agreement, any Operational Documentation, or applicable law; (d) your violation of any term or condition of this Operating Agreement or any Operational Documentation; or (e) your or your employees' negligence or willful misconduct.
6. Order Processing
We will process Product orders placed by customers who follow Special Links from Your Site to the Partner Site. We reserve the right to reject orders that do not comply with any requirements on the Partner Site, as they may be updated from time to time. We will track Qualifying Purchases (defined in Section 7) for reporting and Affiliate Commissions accrual purposes and will make available to you reports summarizing those Qualifying Purchases.
7. Affiliate Commissions
We will pay you Affiliate Commissions on Qualifying Purchases in accordance with Section 8 and the Affiliate Program Commissions Schedule. In the event 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 Affiliate Commissions payable to you under this Operating Agreement. Subject to the exclusions set forth below, a “Qualifying Purchase” occurs when (a) a customer clicks through a Special Link on Your Site to the Partner Site; (b) during a single Session that the customer adds a Product to his or her shopping cart and places the order for that Product no later than 89 days following the customer’s initial click-through; or (c) the Product is shipped to, and paid for by, the customer.
A “Session” begins when a customer clicks through a Special Link on Your Site to the Partner Site and ends upon the first to occur of the following: (x) 24 hours elapses from that click; (y) the customer places an order for a Product; or (z) the customer follows a Special Link to the Partner Site that is not your Special Link.
Qualifying Purchases exclude, and we will not pay Affiliate Commissions on any of, the following:
- any Product that, after expiration of the applicable Session, is added to a customer’s Shopping Cart, or is streamed or downloaded by a customer, even if the customer previously followed a Special Link from Your Site to the Partner Site;
- any Product purchase that is not correctly tracked or reported because the links from Your Site to the Partner Site are not properly formatted;
- any Product purchased through a Special Link by you or on your behalf, including Products you purchase through Special Links for yourself, friends, relatives, or associates (e.g., personal orders, orders for your own use, and orders placed by you for or on behalf of any other person or entity);
- any Product purchased for resale or commercial use of any kind;
- any Product purchased after termination of this Operating Agreement;
- any Product order where a cancellation, return, or refund has been initiated; and
- any Product purchased by a customer who is referred to the Partner Site through any of the following:
- a Prohibited Paid Search Placement (see below); or
- a link to the Partner Site, including a Redirecting Link (see below), that is generated or displayed on a Search Engine in response to a general Internet search query or keyword (i.e., in natural, free, organic, or unpaid search results), whether those links appear through your submission of data to that site or otherwise.
- any Qualifying Purchase wherein you have offered any person or entity any consideration or incentive (including any money, rebate, discount, points, donation to charity or other organization, or other benefit) for using Special Links (e.g., by implementing any “rewards” or loyalty program that incentivizes persons or entities to visit the Partner Site via your Special Links).
- any Product purchased through a Special Link in a Mobile Application that was not an Approved Mobile Application or where the Special Link in an Approved Mobile Application was not served by the AMA API, Product Advertising API or other linking tools that we make available to you.
“Prohibited Paid Search Placement” means an advertisement that you purchased through bidding on keywords, search terms, or other identifiers (including Proprietary Terms) or other participation in keyword auctions. “Proprietary Term” means keywords, search terms, or other identifiers that include the word “Baby Boldly” or “Belly and Bag”, or any other trademark of Baby Boldly or its affiliates, or variations or misspellings of any of those words (e.g., "BabyBold", “Belly Bag”, “Belly and Bag”). “Redirecting Link” means a link that sends users indirectly to the Partner Site via an intermediate site or webpage and without requiring the user to click on a link or take some other affirmative action on that intermediate site or webpage. “Search Engine” means Google, Yahoo, Bing, or any other search engine, portal, sponsored advertising service, or other search or referral service, or any site that participates in any of their respective networks.
8. Affiliate Commissions Payment
We will pay you Affiliate Commissions on a monthly basis for Qualifying Purchases shipped, streamed, or downloaded (as applicable) in a given month, subject to any applicable withholding or deduction described below. We will pay you approximately 60 days following the end of each calendar month, but we may accrue and withhold Affiliate Commissions until the total amount due to you is at least $100.00.
The Affiliate Commissions payable to you are exclusive of sales tax, shipping and other fees above and beyond the cost of the Product. No federal, state or local income or other tax will be withheld from the Affiliate Commissions paid to you.
9. Policies and Pricing
Customers who buy products through this Program are customers of the Partner Site with respect to all activities they undertake in connection with the Partner Site. Accordingly, as between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on the Partner Site will apply to those customers, and the same may be changed at any time.
10. Identifying Yourself as an Associate
You will not issue any press release or make any other public communication with respect to this Operating Agreement, your use of the Content, or your participation in the Program. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to any charity or other cause), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Operating Agreement. You must, however, clearly state the following on Your Site: “[Insert your name] is a participant in the Baby Boldly Affiliate Program, an affiliate advertising program designed to provide a means for sites to earn Affiliate Commissions by advertising and linking to the partner site”
11. Limited License
- Subject to the terms of this Operating Agreement and solely for the limited purposes of advertising Products on, and directing end users to, the Partner Site in connection with the Program, we hereby grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to (a) copy and display the Content solely on Your Site; and (b) use only those of our trademarks and logos that we may make available to you as part of Content (those trademarks and logos, collectively, “Baby Boldly and Belly&Bag Marks”) solely on Your Site and in accordance with the Affiliate Program Trademark Guidelines
- All licenses set forth in this Section 11 will immediately and automatically terminate if at any time you do not timely comply with any obligation under this Operating Agreement or any Operational Documentation, or otherwise upon termination of this Operating Agreement. In addition, we may terminate the license set forth in this Section 11 in whole or in part upon written notice to you. You will promptly remove from Your Site and delete or otherwise destroy all of the Content and Baby Boldly Marks with respect to which the license set forth in this Section 11 is terminated or as we may otherwise request from time to time.
- Associates Program IP License (“License”)
- By accepting the Operating Agreement, or by accessing or using the Product Advertising Content (as defined hereinafter), including the proprietary application programming interfaces and other tools (collectively, the “PA API”) that permit you to access and use certain types of data, images, text, and other information and content relating to Products (“Product Advertising Content”) which we may make available to you, you agree to be bound by this License.
- Subject to the terms of this License and solely for the limited purposes of participation in the Associates Program in strict compliance with the Operating Agreement (including this License and the other Operational Documentation), we hereby grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to: (a) copy and display Product Advertising Content solely on Your Site; (b) use only those of the Baby Boldly Marks we make available to you as part of the Product Advertising Content, solely on Your Site and in accordance with the Associates Program Trademark Guidelines, unless otherwise provided for in this Operating Agreement, and (c) access and use the PA API, Data Feed, and Product Advertising Content solely in accordance with the Specifications and this License.
12. Reservation of Rights; Submissions
Other than the limited licenses expressly set forth in Section 11, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to, and you do not, by virtue of this Operating Agreement or the License hereunder otherwise, acquire any ownership interest or rights in or to, the Program, Special Links, link formats, Content, PA API, Data Feeds, Product Advertising Content, any domain name owned or operated by us, information and materials on any Partner Site or the Associates Site, our and our affiliates’ trademarks and logos (including the “Baby Boldly” and “Belly & Bag" Marks), and any other intellectual property and technology that we provide or use in connection with the Program (including any application program interfaces, software development kits, libraries, sample code, and related materials).
If you provide us or any of our affiliates with suggestions, reviews, modifications, data, images, text, or other information or content about a product or in connection with this Operating Agreement, any Content, or your participation in the Program, or if you modify any Content in any way, (collectively, “Your Submission”), you hereby irrevocably assign to us all right, title, and interest in and to Your Submission and grant us (even if you have designated Your Submission as confidential) a perpetual, paid-up royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (a) use, reproduce, perform, display, and distribute Your Submission in any manner; (b) adapt, modify, re-format, and create derivative works of Your Submission for any purpose; (c) use and publish your name in the form of a credit in conjunction with Your Submission (however, we will not have any obligation to do so); and (d) sublicense the foregoing rights to any other person or entity. Additionally, you hereby warrant that: (y) Your Submission is your original work, or you obtained Your Submission in a lawful manner; and (z) our and our sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. You agree to provide us such assistance as we may require to document, perfect, or maintain our rights in and to Your Submission.
13. Compliance with Laws
In connection with your participation in the Program you will comply with all applicable federal, state and local laws of the United States including but not limited to ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over you.
14. Term and Termination
The term of this Operating Agreement will begin upon our acceptance of your Program application and will end when terminated by either you or us. Either you or we may terminate this Operating Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon any termination of this Operating Agreement, any and all licenses you have with respect to Content will automatically terminate and you will immediately stop using the Content and Baby Boldly Marks and promptly remove from Your Site and delete or otherwise destroy all links to the Partner Site, all Baby Boldly Marks, all other Content, and any other materials provided or made available by or on behalf of us to you under this Operating Agreement or otherwise in connection with the Program. We may withhold accrued unpaid Affiliate Commissions for a reasonable period of time following termination to ensure that the correct amount is paid (e.g., to account for any cancelations or returns). Upon any termination of this Operating Agreement, all rights and obligations of the parties will be extinguished, except that the rights and obligations of the parties under Sections 5, 9, 10, 12, 13, 14, 16, 17, 18, 19, and 20, together with any accrued but unpaid payment obligations of us under this Operating Agreement, will survive the termination of this Operating Agreement. No termination of this Operating Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Operating Agreement prior to termination.
We may modify any of the terms and conditions contained in this Operating Agreement (and any Operational Documentation) at any time and in our sole discretion by posting a change notice, revised agreement, or revised Operational Documentation on the Partner Site or by sending notice of such modification to you by email to the email address then-currently associated with your Associates account (any such change by email will be effective on the date specified in such email and will in no event be less than two business days after the date the email is sent). Modifications may include, for example, changes to the Associates Program Affiliate Commissions Schedule, Associates Program Participation Requirements, payment procedures, and other Program requirements. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS OPERATING AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF ANY MODIFICATION (E.G., THE DATE OF OUR POSTING OF A CHANGE NOTICE, REVISED OPERATING AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE PARTNER SITE OR THE DATE SPECIFIED IN ANY EMAIL TO YOU REGARDING SUCH MODIFICATION) WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
16. Relationship of Parties
You and we are independent contractors, and nothing in this Operating Agreement or the Operational Documentation will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective affiliates. You will have no authority to make or accept any offers or representations on our or our affiliates’ behalf. You will not make any statement, whether on Your Site or otherwise, that contradicts or may contradict anything in this section. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Operating Agreement, you will be deemed to have taken the action yourself.
17. Covenant Not to Compete
During the term of this Agreement and for a period of two years thereafter (regardless of the reason for termination or whether such termination was by Company or by the Affiliate), Affiliate shall not, directly or indirectly, compete with Company for business or own, manage, operate, control, be employed by, participate in, render services for, or be connected in any manner with the ownership, management, operation or control, of any person or entity in competition with Company.
18. Covenant Not to Solicit Clients
During the term of this Agreement and for a period of two years thereafter (regardless of the reason for termination or whether such termination was by Company or by the Affiliate), Affiliate shall not, directly or indirectly, on behalf of any person or entity in competition with Company, solicit the business or patronage of any former, current or prospective client of Company or perform services or accept business from any former, current or prospective client of Company regardless of whether the Affiliate had any contact with or provided services for the former, current or prospective client on behalf of Company while employed by Company.
19. Covenant Not to Solicit Affiliates
During the term of this Agreement and for a period of two years thereafter (regardless of the reason for termination or whether such termination was by Company or by the Affiliate), Affiliate shall not, directly or indirectly, solicit or encourage any of the then-current or former Affiliates or employees of Company to terminate their association or employment with Company or to compete with Company or become affiliated with or employed by anyone in competition with Company. For the purpose of this paragraph, “former Affiliates or Employees” shall mean those individuals who served as sales Affiliates for or were employed by Company within a year prior to termination of this Agreement.
20. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS OPERATING AGREEMENT, THE PROGRAM, OPERATIONAL DOCUMENTATION, THE PARTNER SITE, THE BABY BOLDLY SITE OR THE SERVICE OFFERINGS (DEFINED BELOW), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS OPERATING AGREEMENT, THE PROGRAM, THE PARTNER SITE, THE BABY BOLDLY SITE AND THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL AFFILIATE COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS OPERATING AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
THE PROGRAM, THE BABY BOLDLY SITE, THE PARTNER SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE PARTNER SITE, ANY SPECIAL LINKS, LINK FORMATS, OPERATIONAL DOCUMENTATION, CONTENT, BABY BOLDLY.COM DOMAIN NAME AND OUR AFFILIATES’ TRADEMARKS AND LOGOS (INCLUDING THE BABY BOLDLY MARKS), AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS." NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME IN OUR SOLE DISCRETION. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAM, CONTENT, OPERATIONAL DOCUMENTATION, THE BABY BOLDLY SITE, OR THE AFFILIATE-PROGRAM SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS OPERATING AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OF THIS OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.
22. Governing law and Disputes
If either party is in breach of any term in this Operating Agreement or any other agreement related to the Program, the non-breaching party shall provide the breaching party with written notice of such breach and a thirty (30) day period in which to cure such breach. To the extent the breach is not cured and litigation is necessary, the courts in Duval County, Florida shall have the exclusive jurisdiction over any dispute relating to or arising from the Program or this Operating Agreement.
This Operating Agreement will be governed by the laws of the state of Florida, without regard to the principle of conflict of laws.
Notwithstanding anything to the contrary in this Operating Agreement, we may seek injunctive or other relief in any court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property or proprietary rights. You further acknowledge and agree that our rights in the Content are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
To the extent any legal action is commenced to enforce the terms of this Operating Agreement or related agreement, the prevailing party is entitled to recover their reasonable attorney’s fees from the other party.
You acknowledge and agree that we and our affiliates may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Operating Agreement or operate sites that are similar to or compete with Your Site. You may not assign this Operating Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Operating Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Operating Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Operating Agreement. In the event of any conflict between this Operating Agreement and the Operational Documentation, the Affiliate Program Commissions Schedule page will control over this Operating Agreement, which will control over the remainder of the Operational Documentation. Whenever used in this Operating Agreement, the terms “include(s),” “including,” “e.g.,” and “for example” mean, respectively, “include(s), without limitation,” “including, without limitation,” “e.g., without limitation,” and “for example, without limitation.” Any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under this Operating Agreement, may be made, taken, or given in our sole discretion. Any information relating to us or our affiliates provided by us in connection with the Operating Agreement that is not known to the general public is considered ("Confidential Information"). You agree that: (a) all Confidential Information will remain Baby Boldly's exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your performance under the Operating Agreement and ensure that persons who have access to Confidential Information will be made aware of and will comply with the obligations in this provision; and (c) you will not otherwise disclose Confidential Information to any individual, company, or other third party (other than your affiliates). You agree that we may, in our sole discretion, disclose or make available any information provided or submitted by you or related to your performance under this Operating Agreement to any judicial, quasi-judicial, governmental, regulatory or any other authority as may be required by us to co-operate and/ or comply with any of their orders, instructions or directions or to fulfill any requirements under applicable laws. You represent and warrant that you and your financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority.
MOBILE APPLICATION POLICY
These Mobile Guidelines (“Mobile Guidelines”) apply to your inclusion of Special Links in your Approved Mobile Application. "We," "us," or "our" means Baby Boldly.com, its Partner Sites or any of its affiliates, as the case may be. "You" means the user agent for the associate account associated with the Approved Mobile Application. All capitalized terms used below that are not defined on this page have the meanings given to them in the Operating Agreement. Strict compliance with these Mobile Guidelines is required at all times, and any violation of these Mobile Guidelines will automatically terminate the Operating Agreement.
Your Mobile Application:
- must be free to download and all Referral links must be accessible without paying for access;
- must have original content;
- must not emulate our Partner Site own shopping app functionality (if any);
- must not have price tracking and/or price alerting functionality, unless approved in advance by Baby Boldly or its Partner Site in writing;
- must not host or render Partner site's web pages in WebViews.
We may modify this Mobile Application Policy at any time and in our sole discretion by posting a change notice or revised or a revised Mobile Application Policy on the Baby Boldly or the Partner Site. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE YOUR PARTICIPATION IN THE PROGRAM. YOUR CONTINUED INCLUSION OF SPECIAL LINKS IN YOUR APPROVED MOBILE APPLICATION FOLLOWING OUR POSTING OF A CHANGE NOTICE OR A REVISED MOBILE APPLICATION POLICY ON THE PARTNER SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
We reserve the right, exercisable in its sole discretion, to take appropriate action against any use without permission or any use that does not conform to this Mobile Application Policy.
Affiliate Program Commissions Schedule
This Associates Program Affiliate Commissions Schedule (“Schedule”) is part of the Operating Agreement that governs your participation in the Associates Program. This Schedule describes the Affiliate Commissions rates you may earn as a participant in the Program. It also describes the limitations that apply to earning Affiliate Commissions on certain Products.
From time to time, we may modify this Schedule in accordance with the Operating Agreement. All capitalized terms used below that are not defined on this page have the meanings given to them in the Operating Agreement.
During each calendar month, you may earn Affiliate Commissions for Qualifying Purchases. Most Affiliate Commissions are calculated as a percentage of Qualifying Revenues based on the tables below and are subject to the limitations described in the “Limitations on Affiliate Commissions Rates for Certain Products” section below. We also may offer Affiliate Commissions in the form of bounties or other special offers as described in the “Special Offers and Promotions” section below. “Qualifying Revenues” mean amounts we receive from customers’ Qualifying Purchases, excluding shipping, handling, and gift-wrapping fees, taxes, and service charges, and less any rebates, credit card processing fees, returns, and bad debt.
Standard Commission Structure
The standard commission structure for our Products is as follows:
- 5% of Qualifying Revenues up to $1,000.00;
- 10% of Qualifying Revenues between $1,001.00 and $2,500.00; and
- 15% of Qualifying Revenues above $2,501.00.
The exclusion of products for the standard commission structure is as follows:
- None Applicable as of May 2020
From time to time, we may make changes to the Affiliate Commissions rates including but not limited to 1.) Exclude certain Products or categories of Products from earning Affiliate Commissions and/or 2.) Reduce or Increase the Affiliate Commissions for specific Products or categories of Products. We may also run special or limited time offers or promotions under which you may earn Affiliate Commissions on Products or categories of Products that were previously excluded from earning Affiliate Commissions, or you may earn increased Affiliate Commissions rates from those set forth above.
We may notify you about these exclusions, rate changes, special offers or promotions by updating this page or through emails, blog posts, or other means.
In addition to the Affiliate Commissions above, you may also serve as an “Influencer.” As an Influencer, you agree to perform the following tasks in exchange for one of our Products:
- Post a review on our site within 3 days of delivery of the Product with at least one sentence about your experience with the Product, along with a rating.
- Post 2 dedicated Instagram posts tagging only Baby Boldly in the caption of the post within 30 days of delivery of the Product.
- Post 2 Instagram stories tagging only Baby Boldly within 30 days of delivery of the Product.