This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation
in the 125aDay.com Affiliate Program (the "Program"). As used in this Agreement, "we", "us", or "our" means
Dallas Distributing and Publishing, Inc. or any of our affiliate companies, as the case may be, and "you" means the applicant.
"125aDay.com Site" means the site that has its primary home page identified by the URL www.125aDay.com,
and "site" means a World Wide Web site. "Your site" means any site that you will link to the 125aDay.com Site
(and which you will identify in your Program application). Save for our obligation to pay referral fees under
Section 4, which may be performed solely by us, we may cause any of our obligations under this Agreement to
be fulfilled by any of our Affiliates (defined below), on our behalf.
1. Enrollment in the Program
To begin the enrollment process, you will submit a complete Program application via the 125aDay.com Site.
We will evaluate your application in good faith and will notify you of its acceptance or rejection. We may
reject your application if we determine (in our sole discretion) that your site is unsuitable for the Program.
Unsuitable sites include, but are not limited to, those that:
By participating in the Program you agree that you will not engage in any such activities. If we reject
your application, you are welcome to reapply to the Program at any time. You should also note that if we
accept your application and your site is thereafter determined (in our sole discretion) to be unsuitable
for the Program, we may terminate this Agreement. Participation in the Program is limited to parties that
lawfully can enter into and form contracts under applicable law. For example, minors are not allowed to
participate in the Program.
- promote sexually explicit materials
- promote violence
- promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- promote illegal activities
- breach intellectual property rights
- otherwise violate intellectual property rights.
2. Links on Your Site
Once you have been notified that your site has been accepted into the Program, we grant you a revocable,
non-exclusive, worldwide, royalty-free license for the duration of the term of this Agreement, solely for
purposes of facilitating referrals from your site to the 125aDay.com Site, to provide on your site one
or more of the following types of links to the 125aDay.com Site:
Product Links: You may select one or more Products to list on your site. A "Product" is any product listed
on the 125aDay.com Site that is fulfilled by us or on our behalf, or any product sold by a third party
seller on the 125aDay.com Site. For each selected Product, you will display on your site a short description,
review, or other reference. You will be responsible for the content, style, and placement of these references.
You will provide a Special Link (as defined below) from each Product reference on your site to the corresponding
125aDay.com Site online catalog entry. Each such link will connect directly to a single item in our online
catalog. You may add or delete Products (and related links) from your site at any time without our approval.
General Link to 125aDay.com Site Home Page: You may provide a general link on your site to the home page
of the 125aDay.com Site.
We will provide you with guidelines and graphical artwork to use in linking to the 125aDay.com Site home page.
To permit accurate tracking, reporting, and referral fee accrual, we will provide you with special "tagged"
link formats to be used in all links between your site and the 125aDay.com Site (and for purposes of this
Agreement, the browser window described above that opens upon a user's clicking on a Quick-Click link is
deemed a part of the 125aDay.com Site, and any Quick-Click link is deemed a link between your site and the
125aDay.com Site). You must ensure that each of the links between your site and the 125aDay.com Site
properly utilizes such special link formats. Links to the 125aDay.com Site placed on your site pursuant
to this Agreement and which properly utilize such special link formats are referred to as "Special Links."
You will earn referral fees only with respect to activity on the 125aDay.com Site occurring directly
through Special Links; we will not be liable to you with respect to any failure by you to use Special Links,
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.
You acknowledge that, by participating in the Affiliate Program and placing any of the above links within
your site, we may receive information from or about visitors to your site or communications between your
site and those visitors. Your participation in the Program constitutes your specific and unconditional
consent to and authorization for our access to, receipt, storage, use, and disclosure of any and all such
information, consistent with the policies and procedures set forth in the Privacy Notice on the 125aDay.com Site.
Except for the license granted under this Section 2, you do not obtain any rights under this Agreement in
any intellectual property, including, without limitation, any intellectual property with respect to the
Special Links, link formats, technical specifications, guidelines or graphical artwork referenced above,
or with respect to the 125aDay.com domain name.
You also acknowledge that we and our corporate affiliates may crawl or otherwise monitor your site for the
purpose of ensuring the quality and reliability of Special Links on your site (for example, to detect links
that are broken or non-functional, links to products that are out of stock or otherwise unavailable, etc.).
Therefore, you agree that we and our corporate affiliates may take such actions and that you will not seek
to block or otherwise interfere with such crawling or monitoring (and that we and our corporate affiliates
may use technical means to overcome any methods used on your site to block or interfere with such crawling
You also acknowledge that as a participant in the Program, we may from time to time send you email updates
about the Program. By participating in the Program, you consent to our sending you these email updates.
Further, you acknowledge and agree that you will: (a) not, in connection with this Agreement, display or
reference on your site, any trademark or logo of any third party seller on the 125aDay.com Site; (b) use
any data, images, text, or other information obtained by you from us or the 125aDay.com Site in connection
with this Agreement ("Content") only in a lawful manner and only in accordance with the terms of this
Agreement; (c) not use any Content relating to any Excluded Merchant or any product sold by any Excluded
Merchant; (d) not modify or alter any Content that consists of a graphic image, other than to resize it;
(e) not edit any Content that consists of text, other than to shorten its length; (f) not sell, redistribute,
sublicense or transfer any Content; (g) not use any Content in a manner intended to send sales to any site
other than the 125aDay.com Site; and (h) promptly delete any Content that is no longer displayed on the
125aDay.com Site or that we notify you is no longer available for your use.
3. Order Processing
We will process Product orders placed by customers who follow Special Links from your site to the 125aDay.com
Site. We reserve the right to reject orders that do not comply with any requirements that we periodically may
establish. We will be responsible for all aspects of order processing and fulfillment. Among other things,
we will prepare order forms, process payments, cancellations, and returns, and handle customer service. We
will track sales made to customers who purchase Products by using Special Links from your site to the
125aDay.com Site and will make available to you reports summarizing this sales activity. The form, content,
and frequency of the reports may vary from time to time in our discretion.
4. Referral Fees
We will pay you (in accordance with Sections 5 and 6 below) referral fees on certain Product sales to third
parties. For a Product sale to be eligible to earn a referral fee, the customer must click-through a Special
Link from your site to the 125aDay.com Site, and add the Product to his or her shopping cart or purchase the
Product via our 1-Click feature during a session. The session ends upon one of the following events: (a)
24 hours elapses from the customer's initial click-through, (b) the customer orders the Product, or (c)
the customer follows a third party's Special Link. We will only pay referral fees on eligible Products after
order, payment and shipping have occurred.
To permit accurate tracking, reporting and fee accrual, you must ensure that the Special Links between your
site and the 125aDay.com Site are properly formatted. We will not be liable for paying referral fees on
purchases that are not correctly tracked and reported because the links between your site and the 125aDay.com
Site are not properly formatted.
We will not, however, pay referral fees on any Products that are added to a customer's Shopping Cart or are
purchased via our 1-Click feature after the customer has reentered the 125aDay.com Site (other than through
a Special Link from your site) after the 90 day cookie expiration date, as determined by us, even if the
customer previously followed a link from your site to the 125aDay.com Site.
You may not purchase products during sessions initiated through the links on your site for your own use, for
resale or commercial use of any kind. This includes orders for customers or on behalf of customers or orders
for products to be used by you or your friends, relatives, or associates in any manner. Such purchases may
result (in our sole discretion) in the withholding of referral fees and/or the termination of this Agreement.
Products that are eligible to earn referral fees under the rules set forth above are referred to as
In addition, you may not: (a) directly or indirectly offer any person or entity any consideration or incentive
(including, without limitation, payment of money (including any rebate), or granting of any discount or other
benefit) for using Special Links on your site to access the 125aDay.com Site (e.g., by implementing any
"rewards" program for persons or entities who use Special Links on your site to access the 125aDay.com Site);
(b) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other
materials submitted to us by any person or entity; (c) in any way modify, redirect, suppress, or substitute
the operation of any button, link, or other interactive feature of the 125aDay.com Site; (d) make any orders
or subscription requests, or engage in other transactions of any kind on the 125aDay.com Site on behalf of
any third party, or authorize, assist, or encourage any other person or entity to do so; (e) take any action
that could reasonably cause any customer confusion as to our relationship with you, or as to the site on
which any functions or transactions (e.g., search, order, browse, and so on) are occurring; (f) other than
providing Special Links on your site in accordance with this Agreement, post or serve any advertisements or
promotional content promoting the 125aDay.com Site or otherwise around or in conjunction with the display
of the 125aDay.com Site (e.g., through any "framing" technique or technology or pop-up or pop-under windows),
or assist, authorize, or encourage any third party to take any such action; (g) attempt to circumvent the
referral fee schedule or artificially increase your referral fees (e.g. by intentionally featuring, purchasing
or requesting or encouraging any third party to purchase low-price items offered on the 125aDay.com Site
(as determined by us) for the purpose of exceeding any referral fee threshold or by causing any page of
the 125aDay.com Site to open in a customer's browser other than as a result of the customer clicking on
a Special Link on your site); (h) attempt to intercept or re-direct (including, without limitation, via
user-installed software) traffic from or on, or divert referral fees from, any web site that participates
in the Program; or (i) seek to purchase or register any keywords, search terms or other identifiers that
include the word "125aDay" or variations thereof (for example "dalasdp", "dalasdp", etc.) ("Proprietary
Terms") for use in any search engine, portal, sponsored advertising service or other search or referral
service. From time to time we may request that you cause any applicable Web search provider to exclude
Proprietary Terms from keywords used to display your advertising content in association with search results,
assuming the provider of such Web search engine offers such exclusion capabilities. If we determine, in
our sole discretion, that you have engaged in any of the foregoing activities or, as the case may be,
refused promptly to comply with a request from us to exclude Proprietary Terms from any keyword as mentioned
above, we may (without limiting any other rights or remedies available to us) withhold any referral fees
otherwise payable to you under this Agreement and/or terminate this Agreement.
5. Referral Fee Schedule
During each calendar quarter, for Qualifying Products sold during sessions initiated through Special
Links on your site, you will earn (subject to the other terms of this Agreement) referral fees in accordance
with Fee Structure described below.
Subject to the other terms of this Agreement, you will earn 15% of "Qualifying Revenues" (revenues derived
by us from sales of Qualifying Product units sold during sessions initiated through Special Links on your
site, excluding costs for shipping, handling, gift-wrapping, taxes separately stated and charged to the
customer, service charges, credit card processing fees, returns and bad debt).
6. Referral Fee Payment
We will pay you referral fees on a quarterly basis. Approximately 30 days following the end of each calendar quarter,
we will send you a check for the referral fees earned. We will accrue and withhold referral fees until the total
amount due is at least $100.00.
We are obligated by U.S. federal law to obtain tax information from Program participants who are U.S. citizens,
U.S. residents or U.S. corporations and from Program participants who are not U.S. citizens or residents but
whose businesses are taxable in the U.S. If we believe you are a Program participant from whom we are obligated
to obtain tax information and you do not provide this information to us after we have requested it, we may
withhold your referral fee payments until you provide this information or otherwise satisfy us that you are
not a person from whom we are required to obtain tax information.
7. Policies and Pricing
Customers who buy products through this Program will be deemed to be our customers. Accordingly, all of
our 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. Because price
changes may affect Products that you have listed on your site, your site may only show prices. In addition,
if you choose to display prices for any Product on your site in any "comparison" format (including through
the use of any price-comparison tool or engine) together with prices for the same or similar products
offered through any web site or other outlet other than the 125aDay.com Site, you must display both the
lowest "new" price and, if we provide it to you, the lowest "used" price at which the Product is available
on the 125aDay.com Site. You may not otherwise include price information in your Product descriptions.
We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the
availability or price of any particular product.
8. Identifying Yourself as an Affiliate
You may not issue any press release with respect to this Agreement or your participation in the Program;
such action may result in your termination from the Program. We will make available to you a small graphic
image that identifies your site as a Program participant. You must display this logo or the phrase "In
association with 125aDay.com" somewhere on your site. We may modify the text or graphic image of this
notice from time to time. In addition, you may not in any manner misrepresent or embellish the relationship
between us and you, or express or imply any relationship or affiliation between us and you or any other
person or entity except as expressly permitted by this Agreement (including by expressing or implying
that we support, sponsor, endorse, or contribute money to any charity or other cause).
9. Limited License
We grant you a nonexclusive, revocable right to use the graphic image and text described in Section 8
and such other text or images 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
image and text, any other images, our trade names and trademarks, and all other intellectual property rights.
You agree to follow our Trademark Guidelines, as those guidelines may change from time to time. We may
revoke your license at any time by giving you written notice.
10. Responsibility for Your Site
You will be solely responsible for the development, operation, and maintenance of your site and for all
materials that appear on your site. For example, you will be solely responsible for:
We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims,
damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation,
maintenance, and contents of your site.
- the technical operation of your site and all related equipment
- creating and posting Product descriptions on your site and linking those descriptions to the 125aDay.com Site catalog
- the accuracy and appropriateness of materials posted on your site (including, among other things, all Product-related materials)
- ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights)
- ensuring that materials posted on your site are not libelous or otherwise illegal
11. Compliance with Laws
As a condition to your participation in the Program, you agree that while you are a Program participant you
will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions
or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc.
are now in effect or later come into effect during the time you are a Program participant. Without limiting
the foregoing obligation, you agree that as a condition of your participation in the Program you will comply
with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation,
the CAN-SPAM Act of 2003 and all other anti-spam laws.
12. Term of the Agreement
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 the 125aDay.com
Site, and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf
of us to you pursuant hereto or in connection with the Program. You are eligible to earn referral fees
only on sales of Qualifying Products that occur during the term, and referral fees 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 the 125aDay.com Site. Modifications may
include, for example, changes in the scope of available referral fees, referral fee 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 ON THE 125aDay.COM SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
14. Relationship of Parties
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
15. Limitation of Liability
We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits,
or data) arising in connection with this Agreement or the Program, even if we have been advised of the
possibility of such damages. Further, our aggregate liability arising with respect to this Agreement
and the Program will not exceed the total referral fees paid or payable to you under this Agreement.
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 the 125aDay.com Site will be
uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
17. Independent Investigation
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.
Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any
transactions or activities under this Agreement or your relationship with us or any of our affiliates
shall be submitted to confidential arbitration in Dallas, Texas, except that, to the extent you have in
any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or
other appropriate relief in any state or federal court in the state of Texas (and you consent to non-exclusive
jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under
this agreement shall be conducted under the rules then prevailing of the American Arbitration Association.
The arbitrator's award shall be binding and may be entered as a judgment in any court of competent
jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement
shall be joined to an arbitration involving any other party subject to this Agreement, whether through
class arbitration proceedings or otherwise.
This Agreement will be governed by the laws of the United States and the state of Texas, without reference
to rules governing choice of laws. 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 be 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.