This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Trebrown Nurseries Affiliate Programme (the "Programme"). As used in this Agreement, "we" (and "us" and "our") means Trebrown Nurseries and "you" (and "your") means the applicant. "Site" means a World Wide Web site and, depending on the context, refers either to our site at http://www.trebrown.com or to your site.
To begin the enrolment process, you need to submit a complete Programme application via our site. At this stage, you will be enrolled in our programme. However, we will evaluate your application in good faith and will notify you should we feel you must be rejected. We may reject your application if we determine (at our sole discretion) that your site is unsuitable for the Programme. Unsuitable sites include, but are not limited to, those that:
If we reject your application, you are welcome to reapply to the Programme at any time. You should also note that if we accept your application and your site is thereafter determined (at our sole discretion) to be unsuitable for the Programme, we may terminate this Agreement.
We grant you a revocable, non-exclusive, worldwide, royalty-free licence for the duration of the term of this Agreement, solely for purposes of facilitating referrals from your site to our site, to establish and maintain banners and links as contemplated below:
We will provide you with guidelines and graphical artwork to use in linking to our 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 our site. You must ensure that each of the links between your site and our site properly utilizes such special link formats. Links to our 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 our 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 Affiliates Programme 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 Associates Programme 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 our Updated Privacy Notice.
Except for the licence 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 Trebrown.com domain name.
In addition, you acknowledge that we 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 may take such actions and that you will not seek to block or otherwise interfere with such crawling or monitoring (and that we may use technical means to overcome any methods used on your site to block or interfere with such crawling or monitoring).
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 Trebrown.com Site; (b) use any data, images, text, or other information obtained by you from us or our site in connection with this Agreement ("Content") only in a lawful manner and only in accordance with the terms of this Agreement; (c) not modify or alter any Content that consists of a graphic image, other than to resize it; (d) not edit any Content that consists of text, other than to shorten its length; (e) not sell, redistribute, sublicense or transfer any Content; (f) not use any Content in a manner intended to send sales to any site other than the Trebrown.com Site; and (g) promptly delete any Content that is no longer displayed on the Trebrown.com Site or that we notify you is no longer available for your use.
A "Product" is any product listed on the Trebrown.com Site that is fulfilled by us or on our behalf, or any product sold by a third party seller on the Trebrown.com Site excluding: products sold by a third party through a site linked to or from our site (e.g. Amazon.co.uk products).
We will process Product orders placed by customers who follow Special Links from your site to the Trebrown.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. 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 using Special Links from your site to our site and will make available reports summarising this sales activity. The form, content and frequency of the reports may vary from time to time at our discretion. To permit accurate tracking, reporting and fee accrual, you must ensure that the Special Links between your site and our 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 our site are not properly formatted.
We will pay you Referral Fees on certain Product sales to third parties in accordance with sections 5 and 6 below. For a product sale to generate a referral fee, the customer must follow a Special Link (in the format specified by us) from your site to the Trebrown.com site and add the Product to his or her shopping 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 such Products after order, payment and shipping have occurred. We will not, however, pay referral fees on any Products that are added to a customer's Shopping Basket after the customer has re-entered our site (other than through a Special Link from your site), even if the customer previously followed a link from your site to our site. Further, Products listed on the Trebrown.com site or in search results as "on special order" (or other words to similar effect indicating that a product is not readily available for delivery NOW) are not eligible for any referral fees. Gift certificates are not eligible to earn referral fees.
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 or the termination of this Agreement. Products that are entitled to earn referral fees under the rules set forth above are hereinafter referred to as "Qualifying Products".
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 our site (e.g., by implementing any "rewards" programme for persons or entities who use Special Links on your site to access our 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 our site; (d) make any orders or subscription requests, or engage in other transactions of any kind on our 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; or (f) other than providing Special Links on your Site in accordance with this Agreement, post or serve any advertisements or promotional content promoting the Trebrown Nurseries Site or otherwise around or in conjunction with the display of our site (e.g., through any "framing" technique or technology or pop-up windows or pop-under windows), or assist, authorize, or encourage any third party to take any such action; or (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 our site (as determined by us) for the purpose of exceeding any referral fee threshold or by causing any page of the Trebrown.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 Programme; or (i) seek to purchase or register any keywords, search terms or other identifiers that include the word "Trebrown" or variations thereof (for example "Treebrown", "Tre brown", etc.) for use in any search engine, portal, sponsored advertising service or other search or referral service. If we determine, in our sole discretion, that you have engaged in any of the foregoing activities, or have violated any other term of this Agreement, 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.
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 the "Fee Structure" described below.
Fee Structure.
Subject to the other terms of this Agreement, you will earn 10% of Total Qualifying Revenues from a sale of "Plants" and "Seeds" through a session initiated through a Special Link on your site.
"Total Qualifying Revenues" are revenues derived by us from our sales of Qualifying Product units, excluding costs for shipping, handling, gift-wrapping, taxes, service charges, credit card processing fees, returns and bad debt.
A "Qualifying Product" is a Product that is sold and fulfilled by us.
We will pay you referral fees (including VAT, if any, on presentation of a valid VAT invoice) on a six-month basis. Approximately 30 days following the end of each calendar half year, we will send you payment for the referral fees earned on Qualifying Products that were dispatched during that half year, less any taxes that we are required by law to withhold. We will pay your referral fees by one of the following methods: (a) by sending you a gift certificate good for purchase of Plants or Seeds through our site, subject to our standard terms or conditions; or (b) by directly depositing the referral fees earned into your Paypal® account (if you want us to use this method of payment, please ensure that the e-mail address that we have on file is correct and up-to-date). If you select payment via Trebrown.com gift certificate, we will accrue and withhold referral fees until the total amount due is at least £50.00 (or until this Agreement terminates, if earlier). If the customer returns a Product that generated a referral fee, we will deduct the corresponding fee from your next payment. If there is no subsequent payment, we will send you a Paypal® invoice for the fee.
For the avoidance of doubt, customers who buy Products through this Programme will be customers of Trebrown Nurseries. Accordingly, all Trebrown.com rules, policies and operating procedures concerning customer orders, customer service and Product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for Products sold under this Programme in accordance with its own pricing policies. Product prices and availability may vary from time to time.
You may not issue any press release with respect to this Agreement or your participation in the Programme without our prior written consent, which may be given or withheld in our sole discretion. Doing so may result in your termination from the Programme. You may e-mail us now if you wish to apply for written consent. 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.
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 Programme participant and to assist promote the sale of Products on our Site. You may not modify the graphic image and text or any 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 these rights at any time by giving you written notice.
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, legal fees) relating to the development, operation, maintenance and contents of your site.
The term of this Agreement will begin upon our acceptance of your Programme 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. You are only eligible to earn referral fees on sales of Qualifying Products occurring during the term and fees earned up to the date of termination will remain payable only if the related orders are not cancelled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. Upon termination of this Agreement, you must immediately cease use of, and remove from your site, all links to our site and all Trebrown.com trademarks, trade names and logos and all other material by or on behalf of us to you in connection with the Programme.
We may modify any of the terms and conditions contained in this Agreement, at any time and at our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures and Programme rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAMME FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
You and we are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations, guarantees or warranties on our behalf. You will not make any statement or representation, whether on your site or otherwise, that would contradict anything in this section.
We will not be liable for indirect, special, or consequential damages (including any loss of business, revenue, profits or data) arising in connection with this Agreement or the Programme, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Programme will not exceed the total referral fees paid or payable to you under this Agreement at the time that the event giving rise to the liability arises.
Notwithstanding the previous paragraph, nothing in this Agreement will operate to exclude any liability for death or personal injury arising as a result of the negligence of either party, its employees, agents or authorised representatives.
To the fullest extent permitted by law, we make no express or implied warranties or representations with respect to the Programme or any Products sold through the Programme (including, without limitation, warranties of fitness, merchantability, non-infringement or any implied warranties arising out of a course of performance, dealing, or trade usage), and the same are hereby excluded. In addition, we make no representation that the operation of our site will be uninterrupted or error-free and none of us will be liable for the consequences of any interruptions or errors.
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 PROGRAMME AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
This Agreement will be governed by the laws of England, without reference to rules governing choice of laws. You irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. Notwithstanding any other provision in this Agreement, nothing in this Agreement is intended to confer on any person any right to enforce any terms of this Agreement which that person would not have had, but for the Contracts (Rights of Third Parties) Act 1999.