This agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Booksamillion.com Affiliate Program (the "Program") in connection with Commission Junction. As used in this agreement, "we" means Books-A-Million, Inc. (owner of the Booksamillion.com website), and "you" means the applicant. "Site" means a World Wide Web site and, depending on the context, refers either to Booksamillion.com or to the site that you will link to our site.
To begin the enrollment process, you will submit a complete Affiliate Program application via the Commission Junction site. We will evaluate your application in good faith and will notify you of your acceptance or rejection in a timely manner. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Affiliate Program for any reason, including, but not limited to, inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable.
As a Booksamillion.com Affiliate, you will have access to banners, buttons, icons, text links, and other items ("links"), which are subject to the terms and conditions hereof. These items, along with links to other areas of our site, will be made available to you through the Commission Junction site. You may post as many links to our site on your site as you like. The position, prominence and nature of links on your site shall comply with any requirements specified by us, but otherwise will be at your discretion.
To permit accurate commission tracking and reporting, you will link your site to areas within our site using special "tagged" link URLs. These special URLs are generated by way of the Commission Junction site or as otherwise instructed by us. You must ensure that each of the links between your site and our site properly utilizes such tagged URLs. You will only earn commissions with respect to activity on our site occurring directly through tagged URLs. We will not be liable to you with respect to any failure by you to use tagged URLs, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this agreement.
We shall have the sole right and responsibility for processing all orders made by customers. We will prepare order forms; process payments, cancellations, and returns; and handle customer service. You acknowledge that all agreements relating to sales to customers shall be between us and the customer.
We shall not be responsible to you for reporting, maintaining or retaining any information in connection with, relating to or arising out of this agreement including, without limitation, net sales. Your request for any such information shall be directed solely to Commission Junction in accordance with the terms and conditions of the Commission Junction Service Agreement.
We agree to pay you a commission, at the rate set forth below, on net sales to customers who access our site and purchase merchandise via a tagged URL. For purposes of this agreement, "net sales" shall mean the amount invoiced to the customer minus shipping and handling charges, discounts, mark downs, taxes, duties, returns, bad debt and collection expenses, credit card fees and fraud, and royalties to content providers.
We will not pay commissions on merchandise ordered directly from Booksamillion.com (instead of through a tagged URL), even if the customer previously followed a link from your site to Booksamillion.com.
This program is intended for commercial use only, and you may not purchase merchandise through the program for your own use.
We will pay you commissions on the net sales amount (defined above) according to the following rate:
Five percent (5%) of net sales
Commission amounts are tracked and paid by Commission Junction.
We grant you a nonexclusive, revocable right to use graphic images and text for which we grant express permission, solely for the purpose of identifying your site as a program participant and to assist in generating product sales. You may not modify the graphic image or text, or any other of our images, in any way. We reserve all of our rights in the graphic images, text, our trade names and trademarks, and all other intellectual property rights.
a) Keywords Involving Books-A-Million, Inc. Trademarks.
You shall not seek to purchase or register any keywords, search terms or other identifiers that include "Books-A-Million" or variations thereof for use in any search engine, portal, sponsored advertising service or other search or referral service. Specifically, this policy prohibits you from bidding on the trademarks "books-a-million", "booksamillion" and "bamm"; any keyword string that includes those trademarks such as "booksamillion coupon"; and any variations or misspellings of those trademarks including but not limited to "bookamillion", "booksmillion" and "booksamilion".
b) Domain Names and URLs.
You shall not use "booksamillion" or any confusingly similar variation thereof to the left of the top-level domain name (e.g., ".com" or ".net"). For example, URLs such as "booksamillion.anyname.com" or "booksamilliondeals.net" are unacceptable. You may not purchase or otherwise contract with third parties to exploit any Books-A-Million trademark or variation thereof for the purpose of causing your affiliate site to appear as a search result or for any other reason.
You shall not use any Books-A-Million trademark or content in a manner that would violate, or give Books-A-Million or its licensors liability under, any applicable law including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM Act") and any CAN-SPAM Act regulations.
d) Forced or Intercepted Clicks.
You shall not attempt to intercept or re-direct (including, without limitation, via user-installed software) traffic from, or divert commissions from, any web site that participates in the affiliate program. In addition, forced clicks and forced cookies are not permitted; a customer must take an affirmative action (by clicking on your link) for you to earn commission on a transaction.
e) Look and Feel.
You shall not in any way copy or resemble the "look and feel" of the Booksamillion.com site, nor create the impression that your site is the Booksamillion.com site or a part of the Booksamillion.com site.
If we determine, in our sole discretion, that you have engaged in any of the activities cited above, we may (without limiting any other remedies available to us) withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement.
Customers who buy products through this program will be deemed to be customers of Booksamillion.com. Accordingly, all Booksamillion.com rules, policies, and operating procedures concerning customer orders, customer service, and product 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 products sold under this program in accordance with our own pricing policies. Product prices and availability may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. Among other things, this includes ensuring that reviews, product descriptions, and articles on your site comply with all applicable copyright and other laws. You must have express permission to use another party's copyrighted or other proprietary material. We will not be responsible if you use another party's copyrighted or other proprietary material in violation of the law.
The term of this agreement will begin upon our acceptance of your program application and will end when terminated by either party. Either you or we may terminate this agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this agreement for any reason, you will immediately cease use of, and remove from your site, all links to our site, and all Booksamillion.com trademarks and logos, and all other materials provided by or on behalf of us to you in connection with the program. You are only eligible to earn commissions on our sales of qualifying products occurring during the term, and commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our site or on the Commission Junction site. Modifications may include, for example, changes in the scope of available commissions, commission schedules, payment procedures, and program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
You and we are independent contractors, and nothing in this agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this section.
We make no express or implied warranties or representations with respect to the program or any products sold through the program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
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; or (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.
You hereby agree to indemnify, defend and hold harmless us and our affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) relating to the development, operation, maintenance and contents of your site.
We hereby agree to indemnify, defend and hold harmless you and your affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) relating to a defect in any of our products.
You agree that Commission Junction is an intended third party beneficiary of this agreement.
In no event shall we be liable to the other party for any direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages. Further, our aggregate liability arising with respect to this agreement will not exceed the total commissions paid or payable to you under this agreement.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
This agreement will be governed by the laws of the United States and the state of Alabama, without reference to rules governing choice of laws. Any action relating to this agreement must be brought in the federal or state courts located in Birmingham, Alabama, and you irrevocably consent to the jurisdiction of such courts. You may not assign this agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this agreement.
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