Disney Movie Club Affiliate Program Agreement THIS AGREEMENT ("Agreement") and the referred materials contain the complete terms and conditions that apply to an individual or entity's participation in the Disney Movie Club Affiliate Program (the "Affiliate Program"). This Agreement is made and entered into between and among Buena Vista Home Entertainment, Inc. ("BVHE"), LinkShare Corporation, a Delaware corporation ("Manager") and you. As used in this Agreement, "you" or "your" means the applicant to the Affiliate Program and "Site" means a World Wide Web site. "Disney Movie Club Site" means the World Wide Web site found at www.disneymovieclub.com. The Manager has been retained by BVHE to organize, manage and oversee the Affiliate Program. 1. ENROLLMENT IN THE AFFILIATE PROGRAM a. To begin the enrollment process in the Affiliate Program, you must submit a complete Affiliate Program application (the "Application"). The Application can be found at www.dmcaffiliates.com (the "Affiliate Gateway Site"). The Manager and BVHE will evaluate your Application in good faith and a representative of BVHE or the Manager will notify you of its acceptance or rejection of your Application. BVHE or the Manager may reject your Application for any reason whatsoever, including, but not limited to, BVHE's determination (in its sole discretion) that your Site is unsuitable for the Affiliate Program. Unsuitable Sites include, but are not limited to, those that: (i) contain or link to nudity or pornography or may relate to sexual materials; (ii) relate to violence, gambling or alcohol; (iii) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) relate to illegal activities; (v) infringe intellectual property rights of BVHE, the Manager or any third party or otherwise violate the rights of any third party: (vi) contain, in BVHE's sole judgment, material that is defamatory, fraudulent, or harassing to BVHE or any third party; (vii) advocate the adoption or relate to the ideology of a specific religious or political viewpoint (as opposed to discussing multiple religious or political viewpoints); or (viii) relate to the use of any pyramid or similar schemes. b. Once BVHE and the Manager accept your Application, BVHE or the Manager will provide you with access to the Disney Movie Club Site via the Affiliate Gateway Site. 2. PRODUCT ICONS AND LINKS a. You can display on your Site a word or words, graphic image(s), or combination of words and images offered on the Affiliate Gateway Site ("Icons"). You may change the selection of your featured Icons at any time provided that you comply with the terms of this Agreement. The content, style and placement of these Icons will be solely your responsibility and within your discretion provided that you comply with the terms of this Agreement. You must ONLY place Icons on your Site utilizing the code provided on the Affiliate Gateway Site. You may NOT "hard" code Icons on your Site. b. For each selected Icon, BVHE will provide an electronic link to the Disney Movie Club Site using a URL provided by BVHE ("Link"). It is your sole responsibility to set up and maintain the Links connecting your Site to the appropriate page on the Disney Movie Club Site designated for that particular Icon, and ensure that the Links are in good and working order. c. You may ONLY display discounts and other Disney Movie Club coupons on your Site that are (i) sent directly to you by BVHE, or (ii) are made available to you on the Affiliate Gateway Site. You may NOT display Disney Movie Club discounts or other coupons on your Site that you receive from any other source; to do so will be reason for termination of this Agreement. d. You may not modify any of BVHE's icons, content, tools, text, trademarks, logos or any of BVHE's images (collectively "Images") in any way. You acknowledge and agree that (i) the Links, Icons, Images, search boxes or any other material provided to you by BVHE or the Manager for inclusion on your Site may include the Disney Movie Club's trade name, trademark, service mark or logo (the "Disney Movie Club Brand Features"), (ii) you have no right to alter or modify such Disney Movie Club Brand Features, and (iii) you will not use or display the Disney Movie Club Brand Features or any of the other Images or Icons in any manner that is defamatory, misleading, libelous, obscene or otherwise potentially damaging to the reputation of the Disney Movie Club, BVHE (and its officers, directors, agents, employees, affiliates, parent company, divisions and subsidiaries) or of any motion picture produced or distributed by BVHE, or the Manager or the goodwill associated with the Disney Movie Club Brand Features. 3. ORDER PROCESSING a. BVHE will process membership orders placed by third parties who buy products through the Affiliate Program who follow any Links from your Site to the Disney Movie Club Site ("Customers"). BVHE reserves the right to reject orders that do not comply with any requirements that BVHE periodically may establish. b. BVHE or the Manager will be responsible for all aspects of order processing and fulfillment. Among other things, BVHE will prepare order forms, handle customer service, and process payments, cancellations, and returns. BVHE will track sales made to Customers who purchase products using Links from your Site to the Disney Movie Club Site and will provide you with access to reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time in BVHE's discretion but will generally be available on a continuous basis. You agree not to disclose the information contained in these reports to any third party without BVHE's prior written consent. To permit accurate tracking, reporting, and fee accrual, you must ensure that the Links between your Site and the Disney Movie Club Site are properly formatted. All HTML tags are to be generated using the special HTML tags provided by BVHE and are not to be altered in any manner. BVHE will not be responsible for tracking and reporting sales that were not made through a Link formatted to BVHE's specifications. 4. REFERRAL FEES BVHE will pay you referral fees ("Referral Fees") on certain membership orders of certain Customers. To generate a Referral Fee, a Customer must follow a Link (in the format specified by BVHE) from your Site to Disney Movie Club Site, and register to become a member of the Disney Movie Club. BVHE will pay Referral Fees if the Customer has reentered the Disney Movie Club Site and registered for the Disney Movie Club within 30 days of following a Link from your Site to the Disney Movie Club Site, if the Customer, within that 30 days, did not follow a Link from another Site. Memberships that are entitled to earn Referral Fees under the rules set forth above are hereinafter referred to as "Eligible Memberships." 5. FEE AMOUNT BVHE, in its sole discretion, may establish the amount of Referral Fees earned pursuant to Section 4 for Eligible Memberships sold in accordance with the provisions and procedures of this Agreement. 6. FEE SCHEDULE Unless otherwise stated in an offer, BVHE will pay you Referral Fees on a monthly basis (a "month" is a calendar month for purposes of this Agreement). Approximately 60 days following the end of each month, BVHE (or The LinkShare Network as BVHE's designee) will send you a check for the Referral Fees earned, less any taxes or other sums that BVHE believes in good faith it must withhold by law or to correct a previous overpayment to you. If, however, the Referral Fees payable to you for any month are less than $25.00, BVHE will hold those Referral Fees until the total amount due is at least $25.00, or (if earlier) until this Agreement is terminated. It is also possible that a referred activity for which BVHE previously paid you will be reversed or otherwise determined to be invalid or disqualified. For example and without limitation, if BVHE pays you a Referral Fee based on an Eligible Membership and that Eligible Membership is later cancelled by a Customer, BVHE will deduct the amount of the Referral Fee from your next payment. If there is no subsequent next payment, BVHE will send you a bill. 7. POLICIES AND PRICING All Disney Movie Club rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to Customers. BVHE may change its policies and operating procedures at any time and for any reason. BVHE will use commercially reasonable efforts to present accurate information, but BVHE cannot guarantee the availability or price of any particular product. 8. LIMITED LICENSE a. BVHE grants you a limited, nonexclusive, non-transferable, revocable right to use the Link and such other Icons and Images for which BVHE grants express written permission, solely for the purpose of identifying your Site as an Affiliate Program participant and to assist in generating product sales. BVHE reserves all rights in the Icons, the Disney Movie Club Brand Features, any other Images, trade names and trademarks, and all other intellectual property rights. BVHE may immediately revoke your license at any time and for any reason upon giving you oral or written notice. b. You acknowledge and agree that BVHE will own all right, title and interest in and to all information that is created or collected in connection with this Agreement, including, without limitation, (i) any contact information collected from any Disney Movie Club Customer who enters the Disney Movie Club Site from a Link from your Site ("Affiliate Customers") and (ii) any information regarding click-through rates or product purchase by Affiliate Customers ("Sales Information"). Subject to the terms and conditions of this Agreement, Disney grants you a limited worldwide, non-exclusive royalty-free license to use the Sales Information to the extent necessary to fulfill your obligations under this Agreement or for your internal research purposes. You agree not to disclose any Sales Information or Affiliate Customer contact information to any third party without BVHE's prior written approval. 9. RESPONSIBILITY FOR YOUR SITE a. You will be solely responsible for the development, operation, and maintenance of your Site and for all materials that appear on your Site, including, but not limited to the following: (i) the technical operation of your Site and all related equipment; (ii) posting Icons on your Site and linking those Icons to the Disney Movie Club Site; (iii) the accuracy and appropriateness of materials posted on your Site (including but not limited to all product-related materials); (iv) ensuring that materials posted on your Site do not violate or infringe upon the rights of any third party (including, but not limited to, copyrights, trademarks, privacy, or other personal or proprietary rights); (v) ensuring that materials posted on your Site are not libelous, violate any provision of this Agreement or are otherwise illegal or unlawful. b. YOU MAY NOT MAKE SPECIFIC CLAIMS REGARDING THE EFFICACY OF ANY PRODUCT. IF YOU MAKE UNSUBSTANTIATED PRODUCT CLAIMS WITH RESPECT TO PRODUCTS BVHE SELLS, YOUR MEMBERSHIP IN THE AFFILIATE PROGRAM MAY BE TERMINATED IMMEDIATELY UPON NOTICE. c. BVHE and the Manager disclaim all liability for the matters stated in this Section 9. 10. INDEMNIFICATION Further, you will indemnify and hold BVHE harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the content development, operation, maintenance, and contents of your Site or any breach of your obligations under this Agreement. 11. TERM OF THE AGREEMENT The term of this Agreement will begin upon BVHE's acceptance of your Application and will end when terminated as described in this Section 11. You, the Manager or BVHE may terminate this Agreement at any time and for any reason, with or without cause, by giving the other parties written notice of termination. You are only eligible to earn Referral Fees on sales occurring during the term of this Agreement, and Referral Fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. BVHE and the Manager may withhold your final payment for a reasonable time to ensure that the correct amount is paid. Upon termination of this Agreement, (i) all licenses granted under this Agreement will terminate, and (ii) you will immediately remove any Links, Icons, Images, search boxes, or any other Disney intellectual property or Disney Movie Club Brand Features from your Site. Sections 11, 14, 15, and 20 of this Agreement will survive the termination of this Agreement. 12. MODIFICATION BVHE may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement on the Affiliate Gateway Site. Modifications may include, but are not limited to, changes in Referral Fees, fee schedules, payment procedures, and Affiliate Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING BVHE'S POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE AFFILIATE GATEWAY SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE. 13. RELATIONSHIP OF PARTIES You, the Manager and BVHE are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship amongst the parties to this Agreement. You will have no authority to make or accept any offers or representations on BVHE's behalf. You will not make any statement, whether on your Site or otherwise, that reasonably would contradict anything in this Agreement. 14. LIMITATION OF LIABILITY Neither the Manager nor Disney will be liable to you or any other person or entity for any special, indirect, consequential or exemplary damages (including, without limitation any loss of revenue, profits, or data) arising in connection with this Agreement or the Affiliate Program, even if BVHE, the Manager or any of their representatives have been advised of the possibility of such damages. Further, BVHE and the Manager's aggregate liability arising with respect to this Agreement and the Affiliate Program will not exceed the total Referral Fees paid or payable to you under this Agreement. All claims made under this Agreement by you against the Manager or BVHE will be made within 90 days of the act or omission, which forms the basis of such claims. 15. DISCLAIMERS BVHE and the Manager make no express or implied warranties or representations with respect to the Affiliate Program or any products sold through the Affiliate Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, BVHE and the Manager make no representations that the operation of the Affiliate Gateway Site, the Disney Movie Club Site or any other Site sponsored by BVHE or the Manager in connection with this Agreement will be uninterrupted or error-free, and BVHE and the Manager will not be liable for the consequences of any interruptions or errors or termination of any services, products or this Agreement. 16. INDEPENDENT INVESTIGATION YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT BVHE 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 AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPLICITLY SET FORTH IN THIS AGREEMENT. 17. IDENTIFICATION OF AFFILIATES BVHE and the Manager may identify you or your Site as a participant in the Affiliate Program without providing you prior notice or obtaining your specific written consent. Such identification may be oral, written, or electronic, and may include, but is not limited to, public announcements, promotional materials, internal and external reports, and public filings. 18. NON-ASSIGNMENT AND SUCCESSORS You may not assign this Agreement, by operation of law or otherwise, without BVHE's 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. 19. SCOPE OF AGREEMENT. This Agreement constitutes the entire agreement and understanding amongst the parties to this Agreement with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous written or oral agreements or representations amongst the parties. 20. MISCELLANEOUS a. This Agreement will be governed by the laws of the United States and the state of California 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 Los Angeles County, California and you irrevocably consent to the jurisdiction of such courts. BVHE's failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of BVHE's right to subsequently enforce such provision or any other provision of this Agreement. b. As used in this Agreement, certain capitalized words (or any variation thereof) will have the meaning as provided in this Agreement. Any conflict between said capitalized words and any other meaning will be resolved as provided in this Agreement. c. Unless otherwise stated above, all notices and other communications required or permitted under this Agreement will be in writing and will be delivered (i) personally or by United States mail to Buena Vista Home Entertainment, Inc., 350 South Buena Vista Street, Burbank, California, 91521[MAIL CODE], (ii) personally or transmitted by email to LinkShare at contact@linkshare.com, or by Facsimile to (646) 602-0160 or by United States mail to LinkShare Corporation, 215 Park Avenue South, 8th Floor New York, NY 10003, or (iii) if to you at the email address designated on your Application. d. If the person entering into this Agreement is acting on behalf of his or her company or organization, such person represents to BVHE and the Manager that he or she has all requisite power and authority to enter into this Agreement on behalf of such company or organization, that this Agreement has been duly authorized by such company or organization and that this Agreement will constitute a legal, valid, an binding obligation of such company or organization. Such person agrees to indemnify and hold harmless BVHE, its parent, subsidiary and affiliate companies, from any and all claims, damages and expense (including without limitation attorneys' fees) arising from any breach of this Agreement.
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