Highlights for Children Affiliate Network Agreement

This Affiliate Network Agreement ("Agreement') between Highlights for Children, Inc. ("Highlights" or "us"/"our") and You (each, a "Party", and collectively, the "Parties") contains the terms and conditions that apply to Your participation in Highlights' affiliate marketing program for Highlights.com, a U.S.-based e-commerce website serving U.S.-based consumers (the "Program") and the establishment of Qualifying Links (as defined below) from Your website ("Your Site") to Highlights' Uniform Resource Locators ("URLs") specified in our application process for the Program ("Our Site"). By registering for and participating in the Program, You agree to be bound by the terms of this Agreement. If You do not agree to be bound by the terms of this Agreement, do not apply or register for the Program.

1. Eligibility for participation in the program

You will be eligible to apply for participation in the Program, subject to Your acceptance of the following terms and conditions, and our acceptance of Your application.

2. Enrollment in the program

You must apply to our Program by completing an application found either on Our Site or through the LinkShare Network Interface created for our Program.  We will notify you in a timely manner of your acceptance or rejection to our Program after an evaluation of Your application.  We may reject your application for any reason.  You should also note that if we accept your application and Your Site is determined in our sole discretion to be unsuitable for the Program, we may terminate this Agreement at any time.

If Your application to our Program is not approved, you may reapply at a later date.  However, until Your application is approved, You may not place any link to Our Site unless such link is allowed under a separate agreement between Highlights and Your Site, and such link does not consist of an affiliate marketing link comparable to the relationship described herein.  You understand and agree that Highlights will be under no obligation to pay You any commission fees or other compensation defined under this Program unless your application is accepted and approved.  You will be notified of your acceptance to the Program in accordance with the provisions described in section 18 below.

3. Qualifying Links on your site

Upon our acceptance of Your application, Highlights will make available to You through the LinkShare Network Interface or via e-mail Qualifying Links, which may consist of graphical ("Banners") or textual ("Text Links") advertising units which You may post to Your Site in a manner determined by You in accordance with the terms and conditions of this Agreement. You agree that You will fully cooperate with Highlights to establish and maintain Qualifying Links, and that You will only display on the areas on Your Site promoting Highlights Qualifying Links made available through the Program.  From time to time Highlights may substitute or update Qualifying Links available to You, and You agree to update Your Site and conform to the most current Qualifying Links available in the Program in a timely manner.

We will track sales made to customers who purchase products using special links, that You will generate using LinkShare's technology, from Your Site to Our Site and reports summarizing this sales activity will be available to you also through the LinkShare Network. The form, content, and frequency of the reports are limited to those reports and capabilities available through the LinkShare system. Highlights is not responsible for any changes that LinkShare may make in their reporting format, timing, or types of reports available to members of LinkShare and the Highlights Affiliate Program.

4. Identifying yourself as an affiliate

Your affiliation with Highlights may not be promoted by You in any way whatsoever that falls outside the scope of Qualifying Links described above without prior approval by Highlights.  Such promotions may include, but are not limited to, press releases, marketing materials, media kits, screen shots, graphics altered for co-branding or any other such format.

5. Order processing

Highlights will have the sole right and responsibility of processing all orders made by Customers.  We reserve the right to reject or cancel orders that do not comply with any operating procedures or policies that Highlights may have in place from time to time.  We may change operating procedures or policies at any time without prior notice.  We will be responsible for all aspects of order processing and fulfillment, and we will process payments, cancellations and returns.  We will handle customer service as it directly relates to order processing, fulfillment, cancellations and returns.  We will track sales made through Qualifying Links to Our Site through the LinkShare Network Interface.  Availability and accuracy of sales reporting is the responsibility of LinkShare.  To permit accurate tracking, reporting and referral fee accrual, You must ensure that Qualifying Links to Our Site from Your Site are properly formatted and functioning correctly.

6. Referral fees

We agree to pay You a referral fee for certain transactions that may take place on Our Site.  A transaction includes purchases of products or services ("Products") during a "Session" on Our Site by Customers linking to Our Site from Your Site via a Qualifying Link, and for which Highlights has received full payment for such transactions (each a "Qualifying Sale").  A Session means the period of time when You may be credited with a Qualifying Sale in order to receive a referral fee, commencing at the time a visitor clicks on a Qualifying Link on Your Site, and terminating on the earlier of a) One Hundred Sixty-eight (168) hours later; b) when the visitor returns to Our Site via another Qualifying Link from another Affiliate; or c) the termination of this agreement.  We will not pay You any referral fees for sales of any Products added to the Customer's shopping cart other than during a Session.

Referral fees are based on a Qualifying Sale's "Net Sales" amount, defined as the gross sales total of the Qualifying Sale, less charges taxes, shipping, handling, processing, gift wrapping, discounts, gift certificates, cancellations, refunds, returns, rebates and chargebacks.  In addition, customer service invoice adjustments are not subject to referral fees.  Purchases of Products on backorder will not immediately be eligible for referral fees, until the backordered item is fulfilled, at which time the Customer is then charged for the purchase and a referral fee, if applicable, will be paid to You.

7. Referral fee schedule

Our standard referral fee structure is available to approved affiliates and can be found within the LinkShare Network interface under the Baseline Program in effect at the time for which commissionable sales are generated.  Our standard referral fee structure may change at any point in time due to several qualifying factors, including but not limited to the strategic nature of the Affiliate relationship with Your Site.  

8. Tracking and disbursement of referral fee payments

By applying to our Program, you acknowledge and agree that Highlights uses LinkShare Corporation for tracking and reporting of Qualifying Sales that may be attributed to a visitor referred to Our Site after having clicked through a Qualifying Link posted on Your Site.  In addition, LinkShare is acting as paying agent for disbursement of referral fees due to You through this Agreement.  All determinations of Qualifying Links, Qualifying Sales and whether a referral fee is payable will be made by LinkShare Corporation and will be final and binding on You.  If Highlights deposits with LinkShare Corporation, as paying agent, sufficient funds to pay You and the other Affiliates participating in the Program the referral fees due for any period, and LinkShare has the authority to make such payments, then You agree that You shall not have recourse to Highlights in the event of any failure to pay You unless Highlights revokes such authorization or unless such funds are returned to Highlights by LinkShare Corporation.  Inquiries into delays in processing and disbursement of payments should first be directed to LinkShare Corporation.

Highlights will cause You to be paid within forty-five (45) days after the end of each calendar month in accordance with the appropriate referral fee schedule eligible to You, provided that total fees due to You for such calendar month exceed Twenty-Five dollars ($25).  For any calendar month in which Your fees owed do not exceed $25, Highlights shall have the option to pay same or to withhold such payment and add additional fees owed to subsequent calendar month(s) for which You are entitled to receive a referral fee.

You are solely responsible for properly formatting Qualifying Links so LinkShare Corporation can track them.  You agree that in no event shall Highlights be liable to You under this Agreement for any amounts that are not tracked as Qualifying Sales through the LinkShare Network, including without limitation by reason of any unauthorized diversion, redirection or other interference by a third party.

9. Licenses and ownership

Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.

Highlights grants You a fully revocable, non-exclusive, non-transferable license, subject to the terms and conditions of this Agreement, to use, reproduce and transmit the Highlights name, logos, trademarks, service marks, copyrights and similar identifying material relating to Highlights, our Site, and our Products (identified as "Marketing Materials").  Use of such Marketing Materials is limited to the form(s) and extent offered to You through the LinkShare Network Interface. You may not alter, amend, change or modify such Marketing Materials without the express written prior consent and approval by Highlights.   This license shall terminate upon the expiration of this Agreement as determined by Highlights or in the event of termination of this Agreement, the specific timing of which are outlined in section 18.  You may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void and may result in termination of this Agreement.

You agree to comply with our trademark policies and guidelines as those may change from time to time, and if You breach the terms of the foregoing license or otherwise fail to comply with such trademark policies and guidelines, Highlights shall have the right to terminate this Agreement immediately.

10. Your responsibilities

You will be solely responsible for the development, operation, and maintenance of Your Site and for all content that appear on Your Site, including but not limited to the technical operation of Your Site and all related equipment, the accuracy, timeliness and appropriateness of content posted on Your Site (including, among other things, all Marketing Materials).  You also ensure 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), and that content posted on your site is not libelous or otherwise illegal.

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.

11. Terms of the agreement

The terms 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 prior written notice of termination.  Upon termination, all Highlights related content and links should be promptly removed from Your Site. 

You are only eligible to earn referral fees on Qualifying Sales that are completed during the term of this Agreement, and referral fees earned through the date of termination of this Agreement will only be paid if the related purchase is not cancelled or returned. Your final payment under this Agreement may be withheld for a reasonable time to assure the correct amount is paid. In the event overpayment is made by us or on our behalf, You agree to promptly remit such excess payment to us.

Highlights may in its sole discretion, immediately terminate this Agreement without notice and without obligation to issue unpaid referral fees if it determines that You have breached and/or failed to comply with any law, rule, regulation, or any provision, term, condition, obligation, or limitation contained this Agreement, if Your participation in the LinkShare Network is suspended or terminated, and/or if one or more of Your Sites is unsuitable for continued participation in the Program, as determined in the sole discretion of Highlights.

12. Modification

Highlights may modify any of the provisions contained in this Agreement at any time in our sole discretion; all other provisions of this Agreement will remain in full force and effect in accordance with their terms and You will be notified by email pursuant to section 18 below.  Modifications may include, but are not limited to, changes in the scope of available referral fees, 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 OUR SITE AND/OR SENDING YOU THE CHANGE NOTICE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.

13. Relationship of the parties

In connection with this Agreement each party is an independent contractor and as such will not have any authority to bind or commit the other.  Nothing herein shall be deemed or construed to create a joint venture, partnership, or agency relationship between the parties for any purpose.

14. Representations and warranties

You hereby represent and warrant to us as follows:

(a) You have the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby.
(b) You are at least 18 years of age, and Your Site is targeted primarily to U.S.-based consumers.
(c) You will not, either on Your Site or through electronic distribution means such as e-mail, make available content that 
(i) infringes on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; 
(ii) violates any applicable law, statute, ordinance or regulation, including but not limited to any anti-spam or other e-mail or electronic commerce related laws;
(iii) is defamatory or libelous; 
(iv) is lewd, pornographic or obscene; 
(v) violates any laws regarding unfair competition, antidiscrimination or false advertising; 
(vi) promotes violence or contain hate speech; or 
(vii) contains viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
(d) You will not send any e-mail or other form of electronic message or advertisement containing Our name, product, web site address, metatag or any other type of identifier to any recipient unless you meet each of the following:
(i) we have specifically approved the sending of such communication; and 
(ii) the recipient has directly consented to receive such communication from the sender or sender has a pre-existing business relationship with the recipient; and
(iii) you are full compliance with all aspects of the Federal CAN-SPAM law, and all state laws regulating the distribution of e-mail messages.
In addition, You will provide every recipient of such communication with the ability to "opt out" of further communication in a manner that is congruent with current legislation and best practices.  Furthermore, You will cooperate with us to ensure that any necessary requirements are met that do not cause Highlights to be in any violation of current legislation or best practices due to such communication.
(e) Your Site will not, in any way, copy or resemble the look and feel of the Highlights Site.  You will not frame any page in the Highlights Site from within Your Site without first receiving written approval from us.
(f) You will operate Your Site and render Your services in compliance with all applicable laws and regulations including without limitation the Children's Online Privacy Protection Act of 1998 and all related rules and regulations ("COPPA"), and You will be solely responsible for obtaining all required governmental authorization necessary for Your Site and Your full performance of this Agreement.
(g) You will include on the homepage of Your Site a clear and prominent link to Your privacy policy concerning the use of customer data.

15. Public statements

You agree not to make any representations, warranties or public statements concerning Highlights for Children, Highlights.com, any of our products or services, or Our Site policies, except as expressly authorized by this Agreement or as is approved in writing from us in advance of such notice.

16. 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.

17. Disclaimers

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, non-infringement, 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 Our Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.

18. Notices

Any notices required or permitted herein under this Agreement shall be sent electronically to You at the email address provided by You in the Program registration process or to Highlights at highlights-affiliates@linkshare.com and will be effective at the time specified in the communication, or if none is specified, then one (1) hour after sending.

19. Severability

If any term or provision of this Agreement shall be found by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary in the court's opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth.

20. Governing Law

This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of Ohio. Any action to enforce this Agreement shall be brought in the federal or state courts located in Ohio. If you need to send official correspondence, send it via registered mail to Highlights for Children; c/o Online Marketing; 1800 Watermark Drive; Columbus, Ohio 43215; to the attention of the internet department.

21. Independent investigation

You acknowledge 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 representations, guarantee or statement other than as set forth in this Agreement.

22. Guidelines for use of trademarks and domains

These guidelines apply to Your use of any Highlights registered trademarks and associated domains:

(a) You may use our trademarks only for purposes expressly authorized by us.
(b) You may not modify the trademark in any manner, including changes in color, proportion, and font used.
(c) You may not use any trademark to disparage Highlights for Children, its products or services, or in any manner that in our judgment may diminish or otherwise damage our good will in the trademark.
(d) You may not at any time operate, own or register any domain which contains the word "Highlights" or any variation of the Highlights for Children name or registered trademarks, and that you will not purchase any domain name or other right to exploit the Highlights name or associated trademarks.

You acknowledge that all rights to registered trademarks and domains are the exclusive property of Highlights for Children, Inc. and all goodwill generated through your use of such trademarks and domains will inure to our benefit. We reserve the right in our sole discretion to modify these guidelines at any time upon prior written notice. We reserve the right to take action against any use that does not conform to these guidelines.  A complete list of registered trademarks and domains is available through the Highlights' LinkShare account representative.

23. Guidelines for use of search marketing

These guidelines apply to Your use of any search engine marketing efforts, including but not limited to sponsored listings such as ad placements and bid-for-position listings, in support of the Highlights Affiliate Program:

(a) You may use our trademarks as keywords for sponsored listings only if Your bid amount, cost-per-click, etc. is at or below 10 cents.
(b) You will not purposefully attempt to obtain a more desirable ranking on a sponsored listing using a Highlights trademark than we may have already established. 
(c) You agree to remove your listing within twenty-four (24) hours from the time of notice by Highlights if we object to the presentation, display, copy or appearance of Your sponsored listing.
(d) You agree to identify Your Site as an affiliate of Highlights and agree to not mis-represent Your Site or cause confusion to the consumer as to what they may be clicking on.
(e) To see the complete list of out trademark terms, visit www.linkshare.com/highlights_tmterms.pdf.

We reserve the right in our sole discretion to modify these guidelines at any time upon prior written notice. We reserve the right to take action against any use that does not conform to these guidelines, which may include termination of this Agreement.

24. Miscellaneous

You will comply with each of the following: 

(a) You will not replace, intercept, interfere, hinder, disrupt or alter a web user's access, view, usage, or other aspect of the web user's experience at, any Network Affiliate Webpage or in relation to any Destination Webpage (both as defined below) in a manner that results in a different experience from what was intended by such third party Network Affiliate (as defined below);
(b) You will not utilize any software or other technology that may block, alter, direct or redirect, or substitute, insert or append itself to, or otherwise intercept or interfere in any manner with, any click through or other traffic-based transaction that originated from a Network Affiliate Webpage (including, without limitation, any return visit to the merchant participating in the LinkShare Network to which such click through or other traffic reached or intended to reach) in relation to a Destination Webpage as intended by the Network Affiliate with the result of reducing any compensation or other payment earned by or owing to a third party Network Affiliate or increasing any payment obligation of any merchant participating in the LinkShare Network with respect to any individual transaction; and
(c) You will not utilize any software or other technology that will enable a web user to modify the operation of his or her browser (including without limitation by modifying the functionality or behavior thereof or replacing any cookies or other aspect of the workings thereof) to block, disrupt or alter the web user's intended action in any manner that would contravene the agreements and intentions of the foregoing subsections (a) and (b).

The term "Network Affiliate Webpage" means any webpage of any third party Network Affiliate participating in the LinkShare Network that includes any Qualifying Link. For any Network Affiliate Webpage that includes links, banners, advertisements and other placements from various parties and providers in addition to Qualifying Links, the term "Network Affiliate Webpage" as used herein and will refer only to the portion of any such webpage that contains the Qualifying Link provided that You shall not use any other portion of such webpage or the web user's browser to contravene the agreements and intentions of this subparagraph. A "Destination Webpage" means the webpage following the Network Affiliate Webpage that is intended, without any redirects or other intermediary steps (other than those intended by the Network Affiliate responsible for such Network Affiliate Webpage and/or Highlights) that is referenced or connected by a Qualifying Link placed, offered or distributed by such Network Affiliate to its end users. A "Network Affiliate" is any website participating in the LinkShare Network as an affiliate.