Affiliate terms & conditions
These terms and conditions set out the rights and obligations which will form the legal agreement ("this Agreement") between you ("Affiliate" or "You") and us (" We" or "Us" or "Fiercesimplicity.com" or "Fierce Simplicity"), Fiercesimplicity.com, whose registered office is PO Box 416595 Miami Beach FL, 33141
Upon validation and acceptance by Fiercesimplicity.com of the Affiliate's application to join the Fierce Simplicity Affiliate Program (as defined below), Fierce Simplicity will communicate its acceptance of the Affiliate's application to the Affiliate at which time this Agreement will take effect immediately.
In this Agreement the following terms have the following meanings:
"Fierce Simplicity Affiliate Program" the Affiliate scheme arranged and operated by Fierce Simplicity;
"Fierce Simplicity Information Page" which sets out the amount of the Affiliate Commission and other commercial terms of the Fierce Simplicity Affiliate Program;
"Fierce Simplicity Marks" the trade marks, logos, text and other Intellectual Property Rights licensed to the Affiliate by Fierce Simplicity for the purpose and duration of this Agreement;
"Fierce Simplicity Website" the internet website owned or operated by Fierce Simplicity being located at www.fiercesimplicity.com or such other address as Fierce Simplicity may from time to time inform the Affiliate of and where Visitors may carry out Sales;
"Chargeback" the cancellation of Commission due to the Affiliate (if not already paid) or payment to Fierce Simplicity of a sum equal to Your Commission paid in respect of a Transaction in any circumstances specified by Fierce Simplicity at its sole discretion, including in the case of returned items, cancellations, fraud or suspected fraud on the part of either the affiliate or a Visitor;
"Returned Items" & "Cancelled Items" Orders returned or cancelled in accordance with Fierce Simplicity's return and cancellation policy which can be found under ‘information’ on the Fierce Simplicity website. The chargeback period for returns is 30 days.
"Commencement Date" the date on which Fierce Simplicity informs the Affiliate that the Affiliate's application to join Fierce Simplicity's Affiliate scheme has been successful;
"Confidential Information" all information or data (whether oral, visual, recorded in writing, in any other medium or by any other method) disclosed to or obtained by one Party from the other or from a third party, including without limitation any information relating to a Party's operations, processes, plans, intentions, price lists, pricing structures, Intellectual Property Rights, market opportunities, customers and business affairs;
"Control" the power of a person or group of persons acting together, to secure: i) by means of the holding of shares or the possession of voting power in or in relation to that or any other company; and ii) by virtue of any powers conferred by the articles of association or other document regulating that or any other body corporate; that the affairs of the first body corporate are conducted in accordance with the wishes of that person;
"Fierce Simplicity " Corporation Registered address: PO Box 416595 Miami Beach FL, 33141
"Intellectual Property Rights" all copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered or capable of registration, including (without limitation) patents, trade marks, service marks, trade names, design rights, database rights and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world;
"Party" a party to this Agreement;
"Publisher Agreement" the agreement between the Affiliate and the Fierce Simplicity Affiliate NETWORK(TM) relating to pay-for-performance marketing programs;
"Sale" a purchase made by a Visitor on the Fierce Simplicity Website;
"Service Website" the website maintained by Fierce Simplicity at fiercesimplicity.com.
"Tracking Code" the tracking code used by Fierce Simplicity to track and monitor various internet usage patterns including without limitation the Affiliate's performance in referring internet Visitors from Your Website to the Fierce Simplicity Website and recording which of those referrals result in sales of goods or services from the Fierce Simplicity Website;
"Transaction" a Sale on the Fierce Simplicity Website;
"Visitor" a person who uses the Fierce Simplicity Link created pursuant to this Agreement to be transferred from the Affiliate's Website or a subscription e-mail sent by the Affiliate to the Fierce Simplicity Website;
"Affiliate Commission" or "Commission" the compensation the Affiliate may earn on Transactions;
"Affiliate Website" the internet website(s) owned or operated by the Affiliate;
"Qualifying Link" is a link from Partner's site to Merchant's using one of the Required URLs or any other URL provided by Merchant for use in The Affiliate Network(tm) if it is the last link to the Merchant's site that the Customer uses during a Session where a sale of a product or a service to Customer occurs.
"Merchant" any site owner selling products and services;
"Partner" any site owner that wishes to promote and link to the Merchant's site.
1. Offers and Engagements.
1.1. From time to time, We may post on the LinkShare Network(B2C) offers (each, an "Offer") to pay to other participants a specified commission in return for certain advertising services leading to a Qualifying Link.
1.2. If You accept one of our Offers, we will have entered into an "Engagement." Each Engagement shall have the same identification number as the original Offer that lead to the Engagement and shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Engagement and the terms of this Agreement, the terms of the Engagement shall govern.
1.3. At any time prior to You displaying a Qualifying Link on one of Your websites, Advertiser may, with or without notice (a) change, suspend or discontinue any aspect of an Offer or an Engagement or (b) remove, alter, or modify any graphic or banner ad that we have submitted for an Offer or an Engagement. You agree to promptly implement any request from Us to remove, alter or modify any such graphic or banner ad.
2.1 In this Agreement unless the context requires otherwise:
2.1.1 references to a Clause are to a clause of this Agreement;
2.1.2 references to this Agreement are to this Agreement as amended from time to time in accordance with the notice provision in Clauses 18 & 20.1;
2.1.3 the singular includes the plural and vice versa; references to any gender include every gender; and references to persons include corporations, partnerships and other unincorporated associations or bodies of persons;
2.1.4 all headings are for convenience, have no legal effect and should be ignored when interpreting this Agreement;
2.1.5 the words "other", "including" and "in particular" do not limit the generality of any preceding words;
2.1.6 a reference to any provision of any enactment will be construed as a reference to that provision or enactment as amended, re-enacted or extended at the relevant time; and
2.1.7 unless the contrary appears any right or power conferred by this Agreement may be exercised and any duty or obligation imposed by this Agreement is to be performed, from time to time, as occasion requires.
3.1 Subject to the terms of this Agreement, the Affiliate agrees to promote Fierce Simplicity by making available on the Affiliate's Website the Fierce Simplicity Link and Fierce Simplicity agrees to pay The LinkShare Network(tm) the Affiliate commission.
3.2 The terms of the Fierce Simplicity Information Page are expressly incorporated into this Agreement. In the event of any conflict between the terms of this Agreement, Publisher Agreement and the Fierce Simplicity Information Page, the terms of this Agreement shall prevail.
4.1 This Agreement shall commence on the Commencement Date and shall continue until terminated by Fierce Simplicity upon five (5) days written notice to the Affiliate through the user interface within the The LinkShare Network(tm) member's area, or by the Affiliate giving written notice through the user interface within the The LinkShare Network(tm) members' area.
5 Your Use of the Fierce Simplicity Link
5.1 Subject to the license granted to the Affiliate under Clause 5.2 below, Fierce Simplicity reserves all of its right, title and interest in its Intellectual Property Rights in the Fierce Simplicity Link and the Fierce Simplicity Website.
5.2 Fierce Simplicity grants to the Affiliate during the duration of this Agreement a non-exclusive, royalty-free, world-wide license to use, reproduce and display the Fierce Simplicity Link on the Affiliate's Website solely for the purposes envisaged by this Agreement. Any other use of the Fierce Simplicity Link by the Affiliate or to link in any other way to the Fierce Simplicity Website not set out in the preceding sentence of this Clause 5.2 is expressly excluded.
5.3 The Affiliate shall only use Fierce Simplicity Links obtained through the The LinkShare Network(tm) user interface within the Service Website members' area (which is available via a link from the Fierce Simplicity Information Page) to link to the Fierce Simplicity Website, or the link and tracking code created directly on the fiercesimplicity.com affiliate account.
5.4 The Affiliate shall post the Fierce Simplicity Link on the Affiliate Website and shall, except with the prior written consent of Fierce Simplicity, have no right to display the Fierce Simplicity Link other than in the format obtained by the Affiliate from Fierce Simplicity through The LinkShare Network(tm) .
5.5 Fierce Simplicity may in its sole discretion, from time to time, change the appearance or style of the Fierce Simplicity Link and such Fierce Simplicity Link shall be dynamically modified by Fierce Simplicity or THE LINKSHARE NETWORK(TM) on Fierce Simplicity's behalf, or THE LINKSHARE NETWORK(TM) shall on Fierce Simplicity's behalf make available to the Affiliate an amended Fierce Simplicity Link in the THE LINKSHARE NETWORK(TM) user interface within the Service Website members' area at the Fierce Simplicity Information Page. The Affiliate agrees to only use the most up to date version of the Fierce Simplicity Link for the purposes set out in this Agreement and shall remove any Fierce Simplicity Link as instructed by Fierce Simplicity or THE LINKSHARE NETWORK(TM) from time to time that is no longer current.
5.6 The Affiliate acknowledges that the Intellectual Property Rights of Fierce Simplicity (including without limitation the Fierce Simplicity Link and Fierce Simplicity Marks) are and shall remain the sole and exclusive property of Fierce Simplicity. Any goodwill associated with any such rights shall inure exclusively for the benefit of Fierce Simplicity.
5.7 The Affiliate agrees not to use the Fierce Simplicity Link in a manner that disparages Fierce Simplicity, or its products or services, or portrays Fierce Simplicity and/or its products or services in a false light. The Affiliate will comply with Fierce Simplicity's requests as to the use of the Fierce Simplicity Link or Intellectual Property Rights and will not knowingly take any action that diminishes the value thereof.
5.8 The Affiliate agrees not to reproduce or store all or any part of the Fierce Simplicity Website in any form on the Affiliate's Website or on any other website or other electronic retrieval system.
6 Affiliate Warranties
6.1 The Affiliate represents and warrants to Fierce Simplicity that:
6.1. 2 The Affiliate shall not register, lodge or supply with or to any internet search engine or like service the terms or phrases which could be confused intentionally or otherwise, with the boutiques listed on Fierce Simplicity' boutique page (http://www.fiercesimplicity.com/boutiques) unless otherwise agreed in writing by Fierce Simplicity;
6.1.3 The Affiliate shall not use any form of incentive for Visitors to click on the Fierce Simplicity Link without the prior written agreement of Fierce Simplicity;
6.1.4 The Affiliate shall not use an internet search engine or like service to provide links directly to the Fierce Simplicity Website;
6.1.5 If the Affiliate uses an internet search engine or alike service to provide links to the Affiliate's Website, the Affiliate shall not register, lodge or supply with or to any such internet search engine or like service any terms which infringe the Intellectual Property Rights of any third party or any terms which are associated with or are the name or logo of Fierce Simplicity's direct or indirect competitors and suppliers and the Affiliate shall fully indemnify and keep Fierce Simplicity fully indemnified against all loss, damages, claims, demands, actions, costs, charges, expenses and liabilities of whatsoever nature which Fierce Simplicity may suffer or incur as a result of breach of this warranty;
6.1.6 The Affiliate shall ensure that no other web pages, links or other pop-up boxes appear on a Visitor's screen when Fierce Simplicity's Link is used and that the only web page that appears on the Visitor's screen following the use of the Fierce Simplicity Link is the Fierce Simplicity Website homepage or any other pages as agreed by Affiliate and Fierce Simplicity;
6.1.7 The Affiliate shall not participate as an Affiliate on behalf of Fierce Simplicity or enter into a similar arrangement on Fierce Simplicity's behalf other than as provided under this Agreement;
6.1.8 The Affiliate will do nothing that would detrimentally affect Fierce Simplicity or Fierce Simplicity's good name and/or reputation and shall fully indemnify and keep Fierce Simplicity fully indemnified against all loss, damages, claims, demands, actions, costs, charges, expenses and liabilities of whatsoever nature which Fierce Simplicity may suffer or incur as a result of breach of this warranty;
6.1.10 Affiliate's Website:
184.108.40.206 will comply with all applicable laws and regulations;
220.127.116.11 will not infringe any Intellectual Property Rights of a third party;
18.104.22.168 will not libel, defame, cause injury to, invade the privacy of or otherwise infringe or violate the rights of any person or third party;
22.214.171.124 will not contain any defamatory, pornographic or unlawful content; or
126.96.36.199 will not link directly to any material which is in breach of the provisions of this Agreement.
188.8.131.52 You are responsible for notifying Us of any malfunctioning of the URLs specified in the Engagement (the "Required URLs") or other problems with Your participation in the Engagement. We will respond promptly to all concerns upon receipt of Your notification.
7 Fierce Simplicity's Obligations
7.1 Fierce Simplicity shall, through use of Fierce Simplicity Affiliate NETWORK(TM) services, keep detailed and up to date records of all Sales.
8 Affiliate's Indemnity
8.1 The Affiliate undertakes that it will fully indemnify Fierce Simplicity and keep Fierce Simplicity fully indemnified against all loss, damages, claims, demands, actions, costs, charges, expenses and liabilities of whatsoever nature which Fierce Simplicity may suffer or incur as a result of the breach or negligent performance or failure in performance by the Affiliate of the terms of this Agreement.
8.2. Merchant and Partner jointly and severally hereby agree to indemnify, defend, and hold harmless The Fierce Simplicity Network(tm) and its affiliates, officers, directors, employees and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) directly or indirectly arising from or relating to any Offer, Engagement, any other matter related to this Agreement or the subject matter hereof any dispute relating thereto.
9 Affiliate Commission
9.1 Payment of the Affiliate's Commission shall be made in accordance with the terms and conditions of Fierce Simplicity's agreement with the affiliate and the current affiliate rate as listed on our affiliate account page. .
9.2 Fierce Simplicity's obligation to pay Affiliate Commission shall be discharged by payment to the affiliate as a full and final settlement of any and all sums payable by Fierce Simplicity under this Agreement.
9.3 The Affiliate agrees that Fierce Simplicity may require a Chargeback in any circumstances specified by Fierce Simplicity at its sole discretion provided that the Chargeback is notified to the Affiliate within 30 days of the date that Fierce Simplicity validates the Transaction as leading to a processed Transaction. If a Chargeback is required by Fierce Simplicity and payment of Affiliate Commission in connection with that Chargeback has already been made, such sum may be deducted from the Affiliate's Commission due for the following month. If at the end of any month the amount owing to Fierce Simplicity is greater than that owed by Fierce Simplicity to the Affiliate, Fierce Simplicity reserves the right to request a refund from the Affiliate
9.4. All determinations of Qualifying Links and whether a commission is payable will be made by Fierce Simplicity and will be final and binding on both Merchant and Partner. Prices for the products will be set solely by Merchant in its discretion.
9.5 The Affiliate agrees that transactions made for gift card purchases of any value on Fiercesimplicity.com are non-commissionable. Specific coupon codes associated with the affiliate are includable in calculating commissions.
9.6 The Affiliate agrees that the Commission shall be calculated only on the item price excluding any sales taxes, customs charges, VAT or any additional charges Fierce Simplicity charges above the item price. The Item price is defined as the price the boutique sets for the item. In certain countries like Australia, Canada, France, Germany, Ireland, Israel, Korea, Republic Of, New Zealand, Singapore, United Arab Emirates and The United Kingdom the price displayed includes customs and VAT allowance charge. The Affiliate's Commission shall not include percentage on those charges.
10 Termination and Effect of Termination
10.1 Notwithstanding the provision of Clause 4.1 above Fierce Simplicity may terminate this Agreement forthwith by giving written notice to the Affiliate if :
10.1.1 the Affiliate commits a material breach of this Agreement (other than a breach of Clause 6), which is capable of remedy, and fail to remedy the breach within 14 days of written notice to do so;
10.1.2 the Affiliate commits a material breach of this Agreement which cannot be remedied;
10.1.3 the Affiliate is repeatedly in breach of this Agreement;
10.1.4 the Affiliate is in breach of any of the warranties set out in Clause 6;
10.1.5 the Affiliate is the subject of a bankruptcy order, or become insolvent, or make any arrangement or composition with or assignment for the benefit of the Affiliate's creditors, or if the Affiliate goes into either voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over the Affiliate's assets; or
10.1.6 the Affiliate undergoes a change in Control.
10.2 On termination:
10.2.1 all licenses granted by Fierce Simplicity to the Affiliate under this Agreement will immediately terminate;
10.2.2 The Affiliate shall immediately remove the Fierce Simplicity Link from the Affiliate's website; and
10.2.3 Fierce Simplicity shall have no obligation to pay the Affiliate any Commission which is accrued but unpaid as at the date of termination if this Agreement is terminated under Clauses 10.1.1, 10.1.2, 10.1.3, 10.2.4 or 10.1.5.
10.2.5 . Either party may terminate any Engagement at any time by deleting their acceptance of the Engagement through The Fierce Simplicity Network(tm). Termination of an Engagement shall not terminate this Agreement or any other Engagement.
11.1 The Parties will at all times keep confidential all Confidential Information acquired in consequence of this Agreement, except for information which they are bound to disclose by law or where information requested by regulatory agencies or information given to their professional advisers where reasonably necessary for the performance of their professional services. The provisions of this Clause 11.1 shall survive termination of this Agreement.
12.1 The remedies available to either Party under this Agreement shall be without prejudice to any other rights, either at common law or under statute, which it may have against the other Party.
13.1 The Parties will bear all their own costs and expenses incurred in connection with this Agreement.
14 Relationship of the Parties
14.1 Fierce Simplicity and the Affiliate are independent Parties and not the agent, representative or partner of the other Party.
15.1 The failure of either Party to enforce or to exercise, at any time or for a period of time, any term of or any right arising pursuant to this Agreement does not constitute and shall not be construed as a waiver of such terms or right and shall in no way affect that Party's right later to enforce or exercise it.
16.1 The invalidity or unenforceability of any term of, or any right arising pursuant to, this Agreement shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.
17.1 Any notices served by the Parties under this Agreement may be delivered by hand or sent by first class recorded delivery post marked for the attention of the "Affiliate Manager" to the address supplied by the relevant Party to the other Party or to any other address in the United States that the addressee may notify the other Party of in writing from time to time. Notice is not validly served if sent by e-mail.
18.1 This Agreement is personal to the Affiliate and may not be assigned, transferred, sub-contracted or otherwise parted with this Agreement or any right or obligation under it without Fierce Simplicity's prior written consent.
19 Force Majeure
19.1 Neither Party shall have liability to the other Party to the extent that its performance of its obligations under this Agreement is prevented or hindered due to any circumstances outside its reasonable control.
20.1 This Agreement (or any provision of it) may be amended upon five (5) days written notice by Fierce Simplicity to the Affiliate signed by a duly authorized representative of Fierce Simplicity.
20.2 The continued performance of the Affiliate's obligations under this Agreement after the notice period set out in Clause 20.1 has elapsed shall be deemed to be a binding acceptance of such amendments.
21 Entire Agreement
21.1 This Agreement and the Fierce Simplicity Information Page contain all the terms which the Parties have agreed in relation to the subject matter of this Agreement. Neither of the Parties have been induced to enter into this Agreement by a statement or promise which it does not contain save that this clause shall not exclude any liability which one Party would otherwise have to the other in respect of statements made fraudulently.
22 Law and Jurisdiction
22.1 The construction, validity and performance of this Agreement is governed by the laws of the state of Florida.