- Introduction. These Blue Nile Affiliate Terms contain terms and conditions of the Blue Nile Affiliate Program in addition to those terms and conditions set forth in your Publisher Service Agreement with Commission Junction Inc.("Commission Junction" or "CJ"). Defined terms in these Blue Nile Affiliate Terms include the following: (a) "you" or "your" shall mean you, the applicant applying to participate in the Affiliate Program, and upon our acceptance of your application, the Affiliate, (b) "we" or "us" or "our" shall mean Blue Nile, (c) "our Web site" shall mean the Blue Nile Web site currently located at www.bluenile.com, (d) "your Web site" shall mean the World Wide Web site from which you will link to our Web site, (e) "Affiliate" shall mean a party accepted as a member of the Affiliate Program, (f) "User" shall mean a customer who links from your Web site to our Web site, (g) "Products" shall mean any merchandise offered for sale by us on our Web site and does not include items offered for sale by third parties on our Web site, (h) "Affiliate Site" shall mean an Affiliate Web site that has been accepted as an Affiliate of Blue Nile and (i) "Link" or "Links" shall mean banner advertisements, buttons, data feeds, storefronts, search boxes, links or text links that link to the Blue Nile home page or other specific pages of the Blue Nile Web site, containing the Blue Nile Logo and/or other Blue Nile Content, as defined below.
Program Enrollment. To begin the enrollment process in the Blue Nile Affiliate Program, you must either a) be an existing publisher in the Commission Junction Network, or b) complete an online application to become a publisher in the Commission Junction Network.
If you are an existing publisher in the Commission Junction Network, you must review and accept this Agreement by applying to the Blue Nile Affiliate Program and then clicking the acceptance button at the bottom of this Agreement. If you are not yet a publisher in the Commission Junction Network, you must complete an Online Application and accept the terms of this Agreement by clicking the acceptance button at the bottom of this Agreement. Once you have accepted this Agreement, we will review your completed Online Application and inform you whether or not you have been accepted as an Affiliate.
We reserve the right to accept or reject Affiliates in our sole discretion. We may reject your application for any reason, including, if we determine in our sole discretion, that your Web site is inappropriate or objectionable. Web sites that are objectionable or inappropriate include sites that:
If your application is accepted, you will be eligible to link Blue Nile Links to your Web site or through other authorized promotional methods.
- Are unavailable or under construction
- Are aesthetically unpleasing
- Contain hate/violent/sexually explicit/offensive content
- Promote excessive drinking and/or drug use
- Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- Are libelous, disparaging, or defamatory
- Promotes violence or illegal activities
- Use "Blue Nile, Inc.", variations or misspellings in its domain names
- Incorporates materials that infringe upon copyright, trademark or other intellectual property rights
Linking Requirements. When you become an Affiliate Site in our Affiliate Program, we will provide you with Links that will allow Users to be transported when they click on the Link to Products on our Web site. As an Affiliate, you may display these Links on your Web site or through other authorized promotional methods subject to your compliance with the terms and conditions contained in the Agreement. All Links are subject to our approval, and we will provide you with the information that you need to enable you to make appropriate Links to our Web site.
By accepting these Blue Nile Affiliate Terms, you agree that you shall cooperate fully with Blue Nile to maintain such Link or Links. You further agree that (a) such Link or Links shall be displayed prominently throughout your Web site or other authorized promotional method, (b) no Link or Links shall be modified, expanded or reduced in any way without our consent, and (c) no Link or Links published or distributed by you shall in any way modify the look, feel and/or functionality of our Web site. You will promptly remove from your site and delete or otherwise destroy any content or information that we notify you is not available for your use.
You will not engage in any promotional, marketing, or other advertising activities on behalf of us or our affiliation with our Web site or the Affiliate Program, except for those Links as permitted under these Blue Nile Affiliate Terms.
You must not make inaccurate, overbroad, deceptive or otherwise misleading claims about Blue Nile Content, promotions, links, products, services, Blue Nile, our policies, discounts, and prices. For example, if the price of our product is $199 without any discounts applied, you may not state that the product is $189.
Your links and Web site shall not imply our endorsement or sponsorship of, or commercial tie-in or other association with, any product, service, party, or cause (including by placing unrelated third party materials in close proximity to any Links or sections of your Web site that contain any Blue Nile information. You will not take any action that could reasonably cause any customer confusion as to our relationship with you. We reserve the right to monitor your Web site and/or authorized promotional methods at any and at all times to make certain that you are in compliance with these Blue Nile Affiliate Terms. You shall be fully responsible for all content, links and activities conducted on your Web site or other promotional methods. We disclaim all liabilities related to such matters.
In accordance with the Agreement, you agree that you shall not:
- Place or use any Link of Blue Nile except with the intention of delivering valid sales, leads, applications, accounts, clicks or other specified compensable actions; and
- Inflate the number of applications, accounts, clicks or other specified compensable actions or any impressions of our web site, by any method or using any hidden frames, java pop ups, Web bot, robot, automatic redirecting of users, autospawning of browsers, or any other technique or means of generating automated click-throughs, requiring visitors to click on Blue Nile's Link before entering any area of your Site(s), by placing or including Promotions or links on pages of your Site that automatically reload or go to another page without interaction from the user (for example, client pull or server push technology, METATAG reload, or refresh command on page html) or on any page that is not generally accessible to all Web users (for example, pop-up windows and hidden frames).
- Use any promotional text or discount offers in your meta description and titles for the purpose of search engine optimization.
Affiliates using any of the aforementioned techniques or methods to establish a click, and/or place a cookie on a user's computer will be terminated without notice and forfeit all outstanding and future commissions.
- Order Processing. All orders, customer service and fulfillment of such orders will be handled by and through Blue Nile. You may not take orders, perform customer service or deliver Products on our behalf. We will process orders from any Users directed by you through your Web site, but we reserve the right to reject any orders that do not comply with any requirements that we may periodically impose. We will be solely responsible for all aspects of Product order processing and fulfillment, including order entry, payment processing, shipping, cancellations, returns and related customer service. Blue Nile will be responsible for tracking the number of Products sold to Users who are directed through Links to our Web site and reporting the required information to Commission Junction for your access. The form, content and frequency of the reports may vary from time to time and Blue Nile shall not be responsible for any failure of Commission Junction to provide access to the reported information. You are responsible for making certain that the Links are formatted properly. We reserve the right to change the prices of any or all of our Products at any time in our sole discretion without notice. We cannot ensure that if an order is placed that any Product will be available to the User or that a stated price for a Product will be accurate. We do not honor misquoted prices. All personal information regarding the User is the sole and exclusive property of Blue Nile and shall not be provided to you.
Referral Fees and Commissions. Referral Fees (if any) and percentage Commissions (if any) available to you through the Affiliate Program shall be set out in the Program Term. The Commission shall be equal to a percentage of the Net Sales of Products purchased by a User utilizing the Links between your Web site or other authorized promotional method and our Web site (the "Commission"). "Net Sales" shall mean the gross sale price of a Product, excluding amounts collected by us for gift certificates, sales taxes, duties, shipping, handling, fraud, charge-backs, exchanges, credit card processing fees, taxes and similar charges. The maximum commissionable Net Sales per order is $7,500 (subject to change due to exchange rates).
The Referral Fees and the Commission rates are subject to change at any time in our sole discretion with seven (7) days' notice. In order for you to generate a Referral Fee or Commission, the User must follow a link from your Web site or other authorized promotional method to our site, and within the referral period specified in the Program Term purchase the product using either our automated ordering system or by contacting one of our diamond and jewelry consultants, accept the delivery of the Product at the shipping destination (for Commissions or commission based Referral Fees, non-US), remit full payment to us and not cancel the order. You will not be eligible for a Referral Fee or Commission under the following circumstances:
- A party comes to Blue Nile through you and does not purchase anything and then returns to Blue Nile via another Affiliate or partner at a later date and then makes a purchase.
- A party comes to Blue Nile through your Web site and returns after the referral period by entering our url directly.
- The User has prevented cookies from being saved on his, her or its' hard drive.
- The User does not provide our diamond and jewelry consultant with your Affiliate tracking number for any reason.
- If a User to our Web site cannot be tracked by our online ordering system for any reason.
- A party comes to Blue Nile through your Web site but purchases using a "Promotion Code" or "discount code" that discounts their purchase, unless the code is provided to you directly from the Blue Nile or is obtained from the "get links" section of the Commission Junction web site.
- Referral Fees and Commission Payments. We will pay your Referral Fees and Commission payments to Commission Junction on a monthly basis provided all of the conditions in this Agreement have been met. Referral Fees and Commission payments for items that have been returned 90 days from purchase will be deducted from Referral Fees and Commissions otherwise earned in the month that the items are returned. Commission Junction will make payments to you within 30 days after the end of the month in which Commission Junction has received payment from Blue Nile, provided that you have (a) not breached any terms or conditions of the Agreement, (b) met the conditions set forth herein, (c) previously provided a valid mailing address to which the payment may be mailed and (d) the transaction is eligible for a Payout through Commission Junction. Blue Nile reserves the right to withhold any referral fees and Commission payments if Blue Nile determines, in its sole and absolute discretion, that (a) you have breached any terms or conditions of the Agreement; (b) you have breached any terms or conditions of the Publisher Agreement; (c) you have not met the conditions set forth herein, or (d) your Web site or other promotional methods are deemed by us to be objectionable.
- Policies and Pricing. Users who purchase Products through the Affiliate Program will be deemed to be customers of Blue Nile. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service and sales will apply to those Users. We may change our policies and operating procedures at any time in our sole discretion without notice. Products, availability of our Products and our pricing of such Products may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or the price of any particular Product.
- Non-Exclusive, Limited License to Blue Nile Logo and Trademarks. You agree to display the Blue Nile logo (the "Logo") on your homepage or other promotional location of your Web site and/or through other authorized promotional methods. Subject to your compliance with the terms and conditions of this Agreement, we hereby grant to you a non-exclusive, non-transferable, non-sub licensable, revocable, limited license to use our Logo, name, url, trademarks and other materials that we provide to you directly or through Commission Junction (the "Blue Nile Content") solely in the form and manner available from and identified through the Commission Junction Service. You acknowledge and agree that such license is limited and that all right, title, ownership and interest in the Blue Nile Content shall remain with us at all times. You shall use the Blue Nile Content in exactly the form provided to you for your use. Your use of such Blue Nile Content shall comply with any trademark usage policies that we may adopt from time to time. You shall not take any action inconsistent with our ownership of or goodwill associated with the Blue Nile Content, including, without limitation, applying for registration of any of our trademarks (or any mark similar thereto) anywhere in the world. You agree that any benefits and goodwill arising from your use of the Blue Nile Content shall inure solely to our benefit. You agree that you shall not engage, participate or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the image and/or reputation of Blue Nile. You also agree that you shall not use the Blue Nile Content in any manner that is disparaging or that otherwise portrays us in a negative light. We reserve all of our rights in the Blue Nile Content and all other intellectual property rights. You shall not create, publish, distribute or permit any materials that make reference to us, without first submitting such material to us and receiving our written consent. We may revoke your license at any time. This license shall terminate upon the effective date of the expiration or termination of this Agreement and you shall immediately cease all use or publication of the Blue Nile Content.
- Non-Exclusive Limited License and Use of Affiliate Logos and Trademarks. You grant us a non-exclusive license to utilize your names, titles, logos, trademarks and urls (collectively, the "Affiliate Trademarks") to advertise, market, promote and publicize in any manner our rights hereunder; provided, however, we shall not be required to advertise, market, promote or publicize your Web site. You hereby represent and warrant that you are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant us the license to use the same contemplated in this Agreement and that such grant does not and will not (a) breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon you or (b) infringe upon any trademark, trade name, service mark, copyright or other proprietary right of any other person or entity. This license shall terminate upon the effective date of the expiration or termination of this Agreement.
- Use of Blue Nile Trademarks on Third-Party Web Sites. Affiliate agrees not to bid on Blue Nile's name or trademarks or variations thereof, including, but not limited to: Blue Nile, or bluenile.com, within any and all pay-for-placement, paid inclusion and other search engines. In addition, Affiliate may not claim to be Blue Nile, Inc. in any pay-for-placement, paid inclusion or other search engines, and must clearly state the nature of the Affiliate relationship. Affiliates violating this policy may be terminated without notice and forfeit all outstanding and future commissions.
Ownership; Confidentiality. The Blue Nile Content (including, without limitation, the Links) and all User data collected pursuant to this Agreement are, as between us and you, our property and we own all right, title and interest in the Blue Nile Content and User data. During the course of this Agreement, Affiliate may be in possession of or have access to certain confidential, non-public, proprietary, or secret information and material of Blue Nile, including, without limitation, User data or information, information regarding Product sales, and similar data ("Confidential Information"). You agree and acknowledge that this Confidential Information shall at all times be and remain our sole and exclusive property, and you further agree that:
- You will hold all Confidential Information in the strictest confidence, and will protect all Confidential Information from any unauthorized use, disclosure, copying, dissemination or distribution.
- You will not disclose any Confidential Information to any third party without our express prior written consent.
- You will disclose Confidential Information within your organization only to the extent necessary for your compliance with the terms of this Agreement.
- You will treat all Confidential Information with no less than the same degree of care as you accord your own secret or proprietary information.
- You will not utilize the Confidential Information in any way other than in connection with your compliance with this Agreement and your participation in the Affiliate Program. Without limitation on the foregoing, you will not use any Confidential Information for the benefit of any third party or to design, develop, provide or market any other product or service.
Upon termination of this Agreement, you agree to return to us all documents and other tangible materials and copies thereof in your possession containing any Confidential Information. You acknowledge that all Confidential Information is, and shall be, owned solely by us and that the unauthorized disclosure or use of such Confidential Information could cause irreparable harm and significant injury, the extent of which may be difficult to ascertain. The protections afforded to Confidential Information under this Agreement are in addition to, and not in lieu of, the protections afforded under any trade secrets laws, including the Uniform Trade Secrets Act.
- Affiliate Classification. We will classify all affiliates based on the following categories. Category definitions and designations are subject to change at our sole discretion. If you make any changes to your program, website, or other platforms (“Site Change”), you must give notify us seven (7) days before any Site Change goes live. In our sole discretion, we may change your affiliate classification upon notice of a Site Change. Failure to give us notice will be deemed a breach of this agreement.
- Reward Affiliate. Reward Affiliate websites require customers to log-in into a customer created member account. The Reward Affiliate is responsible for granting the customer a type of reward, such as cash back, points, miles, or a donation. Rewards passed onto customers may be subject to a cap on commission and revenue sales based on CJ Program terms. If a customer is given a reward that exceeds the cap established in the CJ Program terms, then the affiliate may honor or deny the reward excess at its own discretion.
- Coupon Affiliates. Coupon Affiliate websites promote Blue Nile and have coupon codes or offers for customers.
- Education Affiliate. Education Affiliate websites promote Blue Nile and focus entirely on diamonds, jewelry, and unbiased reviews of diamonds and jewelry.
- Content Affiliate. Content Affiliate websites promote Blue Nile and focus solely on fashion.
- Deal Affiliate. Deal Affiliate websites promote Blue Nile and primarily focus on product deals or category promotions.
- Mobile Affiliate. Mobile Affiliate websites promote Blue Nile and focus entirely on mobile customer marketing or in-app marketing.
- Affiliate Partner Responsibilities. You will be solely responsible for the development, technical operation and maintenance of your Web site or other promotional methods and for all materials that appear on your Web site or other promotional methods. You shall be solely responsible for ensuring that materials posted on your Web site or in other promotional methods do not violate or infringe upon the rights of any third party, including copyright, trademark, privacy or other personal or proprietary rights, and ensuring that materials posted on your Web site or in other promotional methods are not libelous or otherwise illegal. You must have express written consent to use another party's copyrighted or proprietary material. We disclaim all responsibility if you use another party's copyrighted or other proprietary material in violation of the law.
Promotional Methods. You represent and warrant that you will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any laws and/or regulations that govern advertising, email marketing and/or communications. Without limiting the foregoing, for any emails sent in connection with this Agreement:
- Only "opt-in" system may be used. (Opt-in systems are those where the user specifically requests to be placed on a mailing list.)
- If you generate your own opt-in list through forms on your Web site, as long as you disclose that users will receive e-mailings from you.
- Use of "opt-out" systems are strictly prohibited.
- Use of any lists, whether purchased or created, compiled by means of automated tools are not permitted. This includes, for example, lists developed by scanning UseNet, e-mail archives, or Web pages for e-mail addresses, regardless of whether the scan was "targeted."
- You must use valid e-mail headers at all times.
- You must give the Web address of the opt-in system used and tell the user receiving your mail that such e-mails can be stopped by visiting that opt-in site.
- If anyone contacts you and asks to be removed from your list you will do so within 96 hours and send an e-mail acknowledging the removal.
You represent and warrant that you will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by your site content /site visit or by downloadable software applications for which you are the owner/operator. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results.
You will not knowingly collect, use, or disclose personal information from children under 13 years of age.
- Usage and Security of Account. You shall be responsible for all usage and activity on your Account and for loss, theft or unauthorized disclosure of your password (other than through CJ's negligent or willful conduct or omission). You shall provide us with prompt written notification of any known or suspected unauthorized use of your Account or breach of the security of your Account.
- Publisher Agreement. You represent and warrant to us that you are and shall remain fully compliant with the terms and conditions of, and you shall meet all your obligations under, your Publisher Agreement.
Special Terms and Conditions Regarding State of Residency and Location. These Special Terms and Conditions ("Special Terms") are made and agreed to between Blue Nile and you, and shall apply to any affiliate that earns compensation based on completed sales, including, but not limited to, commission compensation or similar compensation. These Special Terms do not apply to affiliates that are compensated solely on a cost-per-click basis. The Special Terms are subject to change at our sole discretion upon seven (7) days' notice. All affiliates that these Special Terms apply to shall be deemed to be an Ineligible Affiliate, a Type 1 Affiliate, or a Type 2 Affiliate.
- Ineligible Affiliates; Prohibited States: YOU ARE DEEMED AN "INELIGIBLE AFFILIATE" AND CANNOT PARTICIPATE IN THE AFFILIATE PROGRAM IF YOU ARE A RESIDENT OF, PHYSICALLY PRESENT IN, HAVE A PERSON PHYSICALLY PRESENT ON YOUR BEHALF IN, OR ARE OTHERWISE LOCATED IN ANY OF THE FOLLOWING STATES ("PROHIBITED STATES"):
- North Carolina
- Rhode Island
- South Dakota
- Type 1 Affiliates; Type 1 States: YOU ARE DEEMED A "TYPE 1 AFFILIATE" IF YOU ARE A RESIDENT OF, PHYSICALLY PRESENT IN, HAVE A PERSON PHYSICALLY PRESENT ON YOUR BEHALF IN, OR ARE OTHERWISE LOCATED IN ANY OF THE FOLLOWING STATES ("TYPE 1 STATES"):
- New Jersey
- Type 2 Affiliates: YOU ARE DEEMED A "TYPE 2 AFFILIATE" IF YOU ARE NOT A RESIDENT OF, ARE NOT PHYSICALLY PRESENT IN, DO NOT HAVE PERSON PHYSICALLY PRESENT ON YOUR BEHALF IN, OR ARE NOT OTHERWISE LOCATED IN ANY OF THE PROHIBITED STATES OR TYPE 1 STATES.
If you are uncertain which type of affiliate you are, please consult with your legal and/or tax advisor.
- Solicitation: As used in these Special Terms, "Solicitation" means a direct or indirect communication to a specific person or specific persons done in a manner that is intended to and calculated to incite the person or persons to purchase tangible personal property from a specific retailer or retailers. We reserve the right to determine if any behavior constitutes Solicitation at our sole discretion.
- Rules Applicable to Type 1 Affiliates: If you are a Type 1 Affiliate, then you agree to all of these Special Terms, except for Section (f) below, and you specifically agree to the following:
- You are prohibited from engaging in any solicitation activities in the Prohibited States or Type 1 States that refer potential customers to Blue Nile including, but not limited to, distributing flyers, coupons, newsletters and other printed promotional materials or electronic equivalents, verbal soliciting (e.g. in-person referrals), initiating telephone calls, and sending e-mails; and if you are an organization, such as a club or non-profit group, you shall maintain information on your website alerting your members to the prohibition against each of the solicitation activities described above.
- You will certify annually by January 15th each year under penalty of perjury that you have not engaged in any prohibited solicitation activities in the Prohibited States or Type 1 States at any time during the previous calendar year, and, if you are an organization, such as a club or a non-profit group, the annual certification shall also include a statement from the organization certifying that its website includes information directed at its members alerting them to the prohibition against the solicitation activities described herein.
- If you fail to provide the annual certification as required in Section (e)(ii) of these Special Terms by January 31st of each year, you will be deemed to be in violation of these Special Terms and the Blue Nile Affiliate Terms starting on the first day of the period in which you are certifying for. As a result, you will be required to immediately return all of the compensation you have received from Blue Nile, and Blue Nile has the right to withhold any unpaid compensation, you have earned from the Affiliate Program for the entire period for which you fail to certify.
- Future Residency, Locations, and Physical Presence in Prohibited States: You further agree, warrant and represent that, for as long as you participate in the Affiliate Program, you will not engage in any activities which would cause you to have residency, locations, or physical presence in any of the Prohibited States.
- If you engage in any activities in a Prohibited State which cause you to become an Ineligible Affiliate you must immediately notify us in writing upon discovery. You will be deemed to be in violation of these Special Terms and the Blue Nile Affiliate Terms beginning on the first day in which you engaged in such activities in the Prohibited State. As a result, you will be required to immediately return all of the compensation you have received from Blue Nile, and Blue Nile has the right to withhold any unpaid compensation you earned from the Affiliate Program for the period beginning on the first day in which you engaged in such activities in the Prohibited State.
- Rules Applicable to Type 2 Affiliates: If you are a Type 2 Affiliate, then you agree to all of these Special Terms, except for Section (e) above, and you specifically agree to the following:
- No Residency: You agree, warrant and represent that you are not a resident of any of the Type 1 States or Prohibited States.
- No Locations in States: You agree, warrant and represent that you are not located in any of the Type 1 States or Prohibited States.
- No Physical Presence in States: You agree, warrant and represent that you are not physically present directly or through a representative in any of the Type 1 States or Prohibited States.
- Future Residency, Locations, and Physical Presence in Type 1 States or Prohibited States: You further agree, warrant and represent that, for as long as you participate in the Affiliate Program, you will not engage in any activities which would cause you to have residency, locations, or physical presence in any of the Type 1 States or Prohibited States.
- If you engage in any activities in a Prohibited State which cause you to become an Ineligible Affiliate, you must immediately notify us in upon discovery. You will be deemed to be in violation of these Special Terms and the Blue Nile Affiliate Terms starting on the first day in which you engaged in such activities in the Prohibited State. As a result, you will be required to immediately return all of the compensation you have received from Blue Nile, and Blue Nile has the right to withhold any unpaid compensation, you earned from the Affiliate Program for the period starting on the first day in which you engaged in such activities in the Prohibited State.
- If you engage in any Type 1 State and such engagement causes you to become a Type 1 Affiliate, you must immediately notify us in writing upon discovery. You will automatically be subject to the rules applicable to Type 1 Affiliates and must follow the rules applicable to Type 1 affiliates starting on the date you first engaged in activity in the Type 1 State. If you are unable to comply with the rules applicable to Type 1 Affiliates, then you will be deemed to be in violation of these Special Terms and Blue Nile Affiliate Terms. As a result, you will be required to immediately return all of the compensation you have received from Blue Nile and Blue Nile has the right to withhold any unpaid compensation you earned from the Affiliate Program for the period starting on the first day in which you engaged in such activities in the Type 1 State. Statement of No Residency, Locations, and Physical Presence in Type 1 States and Prohibited States: You further agree to provide us, upon our request, with a signed statement indicating that you had no residency, locations, and physical presence in the Type 1 States and/or Prohibited States. The statement must cover the entire time period you are in the Blue Nile Affiliate Program.
Agreement Term. The term of this Agreement shall begin upon our acceptance of your Online Application and will end when terminated hereunder.
We may terminate this Agreement at any time, with or without cause, by giving seven (7) days' written notice of termination. Notice by e-mail to your address on our records is considered sufficient notice for our termination of this Agreement. This Agreement may be terminated immediately by us in the event that you: (a) violate the Publisher Agreement or; (b) violate this Agreement. This Agreement may also be terminated by us in less than seven (7) days in the event any law in any jurisdiction is passed which, in our sole discretion, may cause us to immediately be subject to sales/use tax nexus in such jurisdiction.
Termination of your Publisher Agreement shall automatically terminate this Agreement.
If this Agreement is terminated because (i)your Publisher Agreement has terminated, (ii)you violated the terms of this Agreement, or (iii) because your Web site or other promotional methods are deemed by us to be objectionable, you are not eligible to receive any Referral Fees or Commission payments, even for Referral Fees or Commissions that you earned prior to the date of your termination. If this Agreement is terminated for any other reason, then you shall be eligible to receive only those Referral Fees and Commissions generated prior to the termination of this Agreement (except as provided below). Referral Fees and Commissions earned through the termination of the Agreement shall remain payable only if the related Product orders are not canceled or returned. We reserve the right to withhold your final payment for a reasonable period of time to ensure that the correct amount is paid to you.
Further, in the event that we determine, in our sole and absolute discretion, that you have breached or are breaching any of the terms set forth in this Agreement or have engaged or are engaging in any other activity which could cause us to be deemed a sales or similar tax collector under State law, we reserve the right to suspend or terminate your affiliate relationship with Blue Nile, including the forfeiture of any Referral Fees and/or Commission payments from the date of the breach or activity.
- Agreement Modification. We reserve the right to modify the terms and conditions of this Agreement in our sole discretion upon seven (7) days written notice through the Network Service (via the "Replace" option) with effect on the later to occur of your acceptance or the 8th day after such notice is posted. If any modification is unacceptable to you, your sole recourse is to terminate this Agreement by expiring the relationship and/or rejecting the new Program Term offered. Publisher's continued participation in the Program by accepting the newly offered Program Term with new terms and conditions for this Agreement constitutes Publisher's binding acceptance to the change.
- Relationship of the Parties to this Agreement. Each party shall act as an independent contractor and nothing set forth 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.
- Limitations on Liability. We will have no liability of any sort arising from any interruptions or errors in our Web site. WE WILL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY LOST REVENUES, DATA OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE WERE ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. Further, our aggregate liability arising under or with respect to this Agreement or the Affiliate Program shall in no event exceed the total amount of Referral Fees and Commissions paid by us to you under this Agreement.
- Warranty Disclaimers. WE HEREBY DISCLAIM, AND YOU HEREBY RELEASE US, FROM ANY AND ALL LIABILITY FOR DOWNTIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING THE LINKS AND/OR OUR WEB SITE. WITHOUT LIMITING THE FOREGOING, THE LINKS, THE LICENSED TRADEMARKS ARE PROVIDED TO YOU "AS IS" WITHOUT ANY WARRANTY OR ANY KIND. WE MAKE NO WARRANTIES OR REPRESENTATIONS OF ANY KIND WITH REGARD TO THE AFFILIATE PROGRAM OR ANY PRODUCTS, EXPRESS OR IMPLIED, STATUTORY, ARISING BY LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT OUR WEB SITE OR PRODUCTS WILL BE ERROR FREE, FUNCTION WITHOUT INTERRUPTION OR THAT ANY ERRORS WILL BE CORRECTED. UNDER NO CIRCUMSTANCES SHALL WE BE RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF COMMISSION JUNCTION RELATING TO THE COMMISSION JUNCTION NETWORK SERVICES OR OTHERWISE. IF AS A MATTER OF LAW WE MAY NOT DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMISSIBLE UNDER APPLICABLE LAW.
Indemnification. You hereby agree to indemnify, defend and hold harmless us and our stockholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, losses, liabilities, damages or expenses (including attorneys' fees) of any nature whatsoever incurred or suffered by us (the "Damages") insofar as such Damages (or actions in respect thereof) arise out of or are based upon: (a) any claim or threatened claim that our use of the Affiliate Trademarks infringes on the rights of any third party, (b) your breach or alleged breach of this Agreement or any representation or warranty or covenant made by you in this Agreement, (c) your unauthorized use of any of our Confidential Information or (d) any claim related to your products, services, Web site or promotional methods, including any claims relating to the development, operation, maintenance, activities, contents and links of your Web site, emails or other promotional activities.
Additionally, you shall indemnify, defend and hold harmless Blue Nile from and against any administrative, regulatory or legal proceeding arising out of Blue Nile's alleged failure to collect State sales tax to the extent that such proceeding results, in whole or in part, from your breach or alleged breach of any provision of the Special Terms.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL OF 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 COMPETITIVE 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.
- Binding Agreement.You hereby represent and warrant to us that this Agreement has been duly accepted and validly approved by your authorized agent and that such Agreement has been validly accepted and delivered by you and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms and that the acceptance, delivery and performance of this Agreement are within your legal capacity and power, have been duly authorized by all requisite action on your part, require the approval or consent of no other persons and neither violate nor constitute a default under the provision of any law, rule, regulation, order, judgment or decree to which you are subject or which is binding upon you, or the terms of any other agreement, document or instrument applicable to you or binding upon you.
Miscellaneous. This Agreement shall be governed by the laws of the United States and of the State of Washington, as applied to agreements made, entered into and performed entirely within the State of Washington, notwithstanding your actual state of residence or principal business location. Any action relating to this Agreement must be brought in federal or state courts located in King County, Washington and you irrevocably consent to the jurisdiction of such courts. You agree that damages may be inadequate to compensate Blue Nile for the unique losses to be suffered in the event of a breach of this Agreement, and that Blue Nile will be entitled, in addition to any other remedy it may have under this Agreement or at law, to seek and obtain injunctive and other equitable relief, including specific performance of the terms of this Agreement without the necessity of posting bond. You may not assign this Agreement, by operation or law or otherwise, without our prior written consent, any such purported assignment shall be null and void. Subject to such restriction, this Agreement will be binding upon, inure to the benefit of and be enforceable against the parties and their respective successors and assigns.
If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. 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. This Agreement and the documents referenced herein constitute the entire agreement between the parties regarding its subject matter, supersedes any other agreements or understandings between them.
BY APPLYING FOR THE BLUE NILE AFFILIATE PROGRAM, YOU ARE SIGNIFYING YOUR AGREEMENT TO BE PRESENTLY BOUND BY THE TERMS OF THIS AGREEMENT TO THE SAME EXTENT AS IF YOU HAD PERSONALLY SIGNED THIS AGREEMENT.