Flavia

Affiliate Program

Affiliate Agreement

Affiliate Application

Affiliate FAQ

Affiliate Agreement for FLAVIA® Affiliate Program

This Affiliate Agreement (“Agreement”) is made between Mars, Incorporated (“Mars” or “we” or “us”) and you (“Affiliate” or “you”) regarding your participation as an affiliate in FLAVIA’s Affiliate Program (the “Program”).

Enrollment in the Program.

1.1.

You must submit a completed Program application to begin the enrollment process. If you are not a member of The LinkShare Network, you must also complete a registration form to join The LinkShare Network.

1.2.

Submission of your application to the Program constitutes acceptance to the terms and conditions set forth in this Agreement. We will evaluate your application and notify you of your acceptance or rejection. We may reject your application if, in our sole discretion, we determine for any reason that your web site is unsuitable for the Program.

Unsuitable sites include, but are not limited to, those that:

promote sexually explicit material;
promote violence or hate toward any persons or groups;
promote illegal activities;
promote alcohol, tobacco, gambling/lotteries in any way;
promote the use of pyramid, “ponzi”, or similar investment schemes;
promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
contain, in our sole judgment, material that is defamatory, fraudulent, or harassing to us or any third party;
include “Mars”, “FLAVIA”, “my FLAVIA” or variations or misspellings thereof in their domain names or otherwise violate intellectual property rights of Mars or its suppliers;
disparage Mars or its suppliers;
are under construction or not live at the time of application;
require a username and password to access;
are non-US based or are sites that primarily serve a non-US based audience; and
are unable to direct a reasonable amount of traffic by way of sales volume, clicks and page views to the myflavia.com site (the “FLAVIA Site”).

Mars will not accept sites that provide a portion of their “Referral Fees” (as defined in Section 6) to sites or organizations that violate any of the above criteria. Employees of Mars or its affiliates are also not eligible to enroll in the Program.

1.3.

In addition, we will not accept sites that donate, direct or transfer any portion of their Referral Fees to any charitable site, organization or program, except as specifically authorized in writing by Mars and provided that if your site (the “Affiliate Site”) is engaged in the practice of directing, transferring, or donating to any school or other education-related foundation, charitable organization or program any portion of the Referral Fees paid to you by Mars, you must cooperate with Mars to determine appropriate copy to post on the Affiliate Site to make clear that Mars does not endorse any of the activities conducted by the foundation, charitable organization or program.

1.4.

The terms of this Agreement and our acceptance criteria are subject to change at any time without prior notice. All decisions for rejection or acceptance into the Program will be made within our sole discretion.

Links on the Affiliate Site.

2.1.

Upon acceptance into the Program, we will make available to you Qualifying Links that are subject to the terms and conditions of this Agreement. A “Qualifying Link” is a textual or graphical link (including banner ads) from the Affiliate Site to the FLAVIA Site using one of the Universal Record Locators (“URLs”) provided by Mars for use in the Program.

2.2.

The Qualifying Links will serve to identify the Affiliate Site as a member of the Program and will establish a link from the Affiliate Site to the FLAVIA Site. All Qualifying Links that you will use in the Program will be provided to you from The LinkShare Network or by other means selected by us. You also agree that you will display on the Affiliate Site only those graphic images and text that are provided by us, and you will substitute such images with any new images or text provided by us from time to time throughout the term of this Agreement. Only Qualifying Links may be used to link the Affiliate Site to areas within the FLAVIA Site.

2.3.

Only valid Qualifying Links generated by the LinkShare Network will be tracked for purposes of determining Referral Fees that you may be eligible to receive on sales of Qualifying Products (as defined in Section 6 below) generated through the FLAVIA Site. You may post as many Qualifying Links to the FLAVIA Site as you like on the Affiliate Site. The position, prominence and nature of links on the Affiliate Site shall comply with any requirements specified in this Agreement but otherwise will be in your discretion.

2.4.

You acknowledge that, by participating in the Program and placing a link to the FLAVIA Site (or any page therein) on the Affiliate Site, we may receive information from or about visitors to the Affiliate Site. Mars shall own and retain all right, title and interest in all names, addresses and other identifying information of customers visiting the FLAVIA Site (“Customer Data”) including without limitation customers who access the FLAVIA Site through Qualifying Links (“Customers”) and Affiliate shall have no right to use any such Customer Data.

Affiliate’s Responsibilities.

3.1.

You agree not to make any representations, warranties or other statements concerning Mars, any Mars’ products or services, the FLAVIA Site or FLAVIA Site policies, except as expressly authorized by this Agreement. You will comply with all applicable laws, rules and regulations in the performance of your rights or responsibilities under this Agreement.

3.2.

You may not bypass, modify, circumvent, impair, disable or otherwise interfere with the Qualifying Links. Affiliate agrees that no link on the Affiliate Site shall in any way modify the look, feel and/or functionality of the FLAVIA Site.

3.3.

Affiliate will be solely responsible for the development, operation, and maintenance of the Affiliate Site and for all content that appears on the Affiliate Site. Without limiting the foregoing, Affiliate will be solely responsible for:

the technical operation of the Affiliate Site and all related equipment;
creating and posting product descriptions on your site and linking those descriptions to the FLAVIA Site;
the accuracy, timeliness and appropriateness of content posted on the Affiliate Site (including, among other things, all product-related materials);
ensuring that materials posted on the Affiliate 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 content posted on the Affiliate Site is not libelous or otherwise illegal; and
notifying us and The LinkShare Network of any malfunctioning of the Qualifying Links or other problems with your participation in the Program in accordance with the terms of this Agreement.

We disclaim all liability for these matters.

3.4.

You agree to maintain an easy to understand privacy policy, linked conspicuously, at a minimum, on the Affiliate Site’s home page, marked with the words “Privacy”, “Legal”, “Terms” or similar language.

Prohibitions.

4.1.

As a condition to your acceptance and participation in the Program, you agree not to engage in the following practices:

use the name Mars or FLAVIA, or any variation thereof, in metatags, hidden text or source code, in your domain name or any other part of your URL;
bid on any key word/search terms for which Mars or its affiliates own a trademark, service mark, or other intellectual property. A list of such key words or search terms is located at http://www.myflavia.com/Myflavia/en-US/Footer/Trademarks.htm. Mars may change or amend this list at any time;
use Mars’ or its vendors or suppliers’ logos, trade names, trademarks, graphic images, product images, product references and similar identifying material, except for material provided by Mars for use in the Program;
attempt to modify or alter the FLAVIA Site in any way;
engineer the Affiliate Site in such a manner that pulls Internet traffic away from the FLAVIA Site;
use forced or automated clicks and/or cookies to inflate the number of Qualifying Links by any method. Such prohibited methods include, but are not limited to, using 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 a Qualifying Link before entering any area of the Affiliate Site, or placing or including promotions or links on pages of the Affiliate Site that automatically reload or go to another page without interaction from the user metatag;
make any representations, either express or implied, or create an appearance that a visitor to the Affiliate Site is visiting the FLAVIA Site (e.g., “framing” or “wrapping” the FLAVIA Site in any manner without first obtaining in advance Mars’ express written permission);
“scrape” or “spider” the FLAVIA Site or any other Mars websites for content (such as images, logos or text); or
employ the use of any type of software download or technology which attempts to intercept or redirect traffic or Referral Fees to or from any website.

4.2.

E-Mail Solicitation. Affiliate may, under certain limited circumstances, send emails using the Qualifying Links and other Licensed Materials provided by Mars if the following conditions are met:

the “From” line of each email must contain Affiliate's name. Mars’ name must not be included or referenced in any way in the From line. The email must be designed so as to be clear that it is being sent from Affiliate and not Mars or the FLAVIA Site. The Qualifying Links or other Licensed Materials must be only one element of the email and the primary purpose of the email may not be the marketing of Mars’ products or services. Only Licensed Materials provided by Mars through The LinkShare Network may be used in the emails and such materials must be used in strict accordance with the provisions of this Agreement and any guidelines provided to Affiliate through The LinkShare Network;
Affiliate will create a process by which email recipients may opt-out of receiving future email from Affiliate. Affiliate must have the necessary processes in place to immediately remove such email address from its email list. Affiliate must maintain a do not email list and every opt-out request must be placed on this list;
if Affiliate intends to generate email through a third party supplier, Affiliate must disclose the identity of that supplier to Mars. Affiliate is responsible for all emails generated on Affiliate’s behalf by a third party and such emails must comply with all requirements set forth in this Agreement;
Affiliate must submit for Mars’ approval a marketing plan describing how many times and how often an email will be generated to any one email address. Affiliate is not permitted to send an email to any one email address more than once in any 30-day period. The entire content of each email that will be generated under an email campaign must be submitted to Mars in advance for review and written approval;
Affiliate must comply in all respects with the CAN-SPAM Act of 2003 and with all other applicable laws, rules and regulations. Affiliate must have all mailing lists scrubbed against its do not email list before any email campaign begins and at least every 10 days during each campaign; and
Mars may request that Affiliate immediately stop any email campaign containing Licensed Materials, for any reason, in its sole discretion.

4.3.

Violation of any of the terms or prohibitions contained in this Agreement may result in, among other things, the immediate termination of this Agreement and/or the commencement of an action by Mars against you seeking, without limitation, injunctive relief and/or recovery of actual, statutory and/or punitive damages.

4.4.

We have the right, but not the obligation, in our sole and absolute discretion to monitor the Affiliate Site at any time and from time to time to determine if you are in compliance with the terms of this Agreement, and you agree to provide us with unrestricted access to the Affiliate Site for such purpose.

Order Processing.

5.1.

Mars shall have the sole right and responsibility for taking and processing all orders placed by Customers. Mars shall also have the right, in its sole discretion, to reject any request for service or products from Customers. You acknowledge that all agreements relating to sales to Customers shall be between Mars and the Customer. Prices for the services and products will be set solely by Mars in its discretion.

5.2.

Through The LinkShare Network, you have the ability to track sales made to Customers who purchase Qualifying Products using Qualifying Links from the Affiliate Site to the FLAVIA Site and you can review reports summarizing this sales activity. To permit accurate tracking, reporting, and fee accrual, you must ensure that the Qualifying Links between the Affiliate Site and the FLAVIA Site are properly formatted. Mars is not responsible for ensuring that the Affiliate Site contains proper linking to the FLAVIA Site. The form, content, and frequency of the reports are limited to those reports and capabilities available through The LinkShare Network and may vary from time to time in our and/or The LinkShare Network’s reasonable discretion. Mars is not responsible for any changes that The LinkShare Network makes to the format, timing, or types of reports available to members of The LinkShare Network.

5.3.

All Mars’ rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to Customers with respect to their transactions at the FLAVIA Site. 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 already have listed on your site, you may not include price information in your product descriptions. We will use commercially reasonable efforts to present current and accurate information, but we cannot guarantee the availability or price of any particular product.

Referral Fees.

6.1.

You will earn Referral Fees based on the sale price of Qualifying Products according to fee schedules to be established by us. Mars will also establish in the fee schedule those FLAVIA products that are eligible for Referral Fees.

6.2.

For a product sale to generate a Referral Fee, the customer must:

use a browser that has its cookies setting enabled;
follow a Qualifying Link (in the format specified by Mars) from the Affiliate site to the FLAVIA Site;
purchase an eligible product using our automated ordering system;
accept delivery of the product at the shipping destination; and
remit full payment to us (a “Qualifying Product”).

6.3.

Notwithstanding anything herein to the contrary, Affiliate will not be eligible for a Referral Fee under the following circumstances:

(a)	a Customer comes to the FLAVIA Site through the Affiliate Site and returns more than 30 days later by entering a Mars URL directly;
(b)	a Customer has prevented cookies from being saved on Customer’s computer; or
(c)	a Customer cannot be tracked by Mars’ online ordering system for any reason.

Referral Fee Payment.

The LinkShare Network will pay you Referral Fees on a monthly basis. Approximately 30 days following the end of each calendar month, you will receive a check for the Referral Fees earned on Qualifying Products that were shipped during that quarter, less any taxes that we are required by law to withhold. If a customer returns a Qualifying Product that generated a Referral Fee, we will deduct the corresponding Referral Fee from your next monthly payment; if there is no subsequent payment, we will send you an invoice for the Referral Fee payable within 30 days of your receipt of the invoice. All determinations of whether Referral Fees are payable will be made solely by Mars and will be final and binding on Affiliate.

Use of Marks; Ownership Restrictions.

8.1.

We grant you a limited, nonexclusive, nontransferable, revocable right to (a) access the FLAVIA Site through the Qualifying Links and (b) use our logos, trade names, trademarks, textual and graphical images and similar identifying material designated in Section 2 solely in connection with the Qualifying Links (collectively, the “Licensed Materials”), in each case only as provided to you through The LinkShare Network and solely for the purpose of identifying your site as a Program participant and to assist in generating the sale of Mars’ products from the Affiliate Site.

8.2.

You may not modify, copy, distribute, reverse engineer or create derivative works from the Licensed Materials in any way. You may not sublicense, assign or transfer any such licenses for the use of the Licensed Materials, and any attempt at such sublicense, assignment or transfer is void. We may terminate your license to use the Licensed Materials for any reason at any time in our sole and absolute discretion. You agree to follow our Trademark Guidelines (see below), as those may change from time to time.

8.3.

You acknowledge that all of the Licensed Materials are the exclusive property of Mars and that this Agreement does not transfer any rights to use any Licensed Materials except to the limited extent expressly set forth in this Agreement, and that this Agreement does not and will not confer any goodwill or other interest in any Licensed Materials upon you. You will not challenge Mars’ ownership of the Licensed Materials in any way.

8.4.

Any unauthorized use of the Licensed Materials by you or your employees, affiliates or agents, constitutes infringement of Mars and a material breach of this Agreement. Upon expiration or termination of this Agreement for any reason, you must immediately discontinue use of the Licensed Materials.

8.5.

You must not in any way disparage Mars’ products or services and all use of the Licensed Materials by you must not injure or diminish the goodwill associated with the Licensed Materials. You must conform to the highest ethical standards for advertising and take all reasonable steps to make sure that your advertising complies with all applicable laws.

Term and Termination.

9.1.

The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party in accordance with this Agreement.

9.2.

Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party 5 days prior written notice of termination. Notwithstanding anything herein to the contrary, Mars may terminate this Agreement at any time, with no prior written notice, in the event that Affiliate is in breach of this Agreement.

9.3.

Upon termination, all Licensed Materials and links shall be promptly removed from the Affiliate Site. You are only eligible to earn Referral Fees on sales of Qualifying Products occurring during the term, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. In the event overpayment is made by us, you agree to promptly remit such excess payment upon notification by us. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. This Section 9.3, and Sections 8.3, 11, 12, 13, 14, 15 and 16 shall survive termination of this Agreement.

10.

Representations.

10.1.

Each party represents to the other that it has the authority to enter into this Agreement and has sufficient rights to grant any licenses granted hereby. Affiliate represents that material which is displayed on the other party’s site will not (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) violate any applicable law, statute, ordinance or regulation; (c) be defamatory or libelous; (d) be lewd, pornographic or obscene; (e) violate any laws regarding unfair competition, antidiscrimination or false advertising; (f) promote violence or contain hate speech; or (g) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.

10.2.

Except for the above representations neither party makes any representations or warranties to the other party, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose.

11.

Indemnification.

In addition to any other indemnification obligations contained in this agreement, affiliate shall protect, defend, hold harmless and indemnify Mars, its affiliates, and its and their respective directors, officers, employees and agents from and against any and all claims, actions, liabilities, losses, costs and expenses, even if such claims are groundless, fraudulent or false (including court costs and reasonable attorneys’ fees) incurred as a result of claims of customers or other third parties brought against us and our affiliates, licensors, suppliers, officers, directors, employees and agents arising from or connected with (a) a breach, or alleged breach, of any of affiliate’s representations or obligations herein, or (b) the development, operation, maintenance, activities, contents and links of or on the affiliate site, or (c) any violation by affiliate of any applicable law, rule or regulation, or violations of third party intellectual property rights, rights of privacy or publicity rights. Affiliate agrees to maintain insurance coverage to protect both parties under the terms of this section 11 and to provide evidence of same to Mars, at Mars’ request.

12.

Limitation of liability.

12.1.

Mars 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, Mars’ aggregate liability arising under or with respect to this agreement or the program shall in no event exceed the total amount of referral fees paid to affiliate under this agreement.

12.2.

Mars hereby disclaims, and affiliate hereby releases Mars, from any and all liability for downtime or other interruptions in service regarding the qualifying links and/or FLAVIA site. Without limiting the foregoing, the qualifying links, the FLAVIA site, all content and the licensed materials are provided to affiliate "as is" without any warranty of any kind. Mars makes no warranties or representations of any kind with regard to the affiliate program, the FLAVIA site, or any content, licensed materials, or any services or products sold through the program, 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. Mars does not warrant that the FLAVIA site, services or products will be error free, function without interruption or that any errors will be corrected. If as a matter of law Mars may not disclaim any warranty, the scope and duration of such warranty shall be the minimum permissible under applicable law.

13.

Independent investigation.

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 representations, guarantee, or statement other than as set forth in this agreement.

14.

Publicity. You shall not create, publish, distribute, make or permit any public announcement of this Agreement or the relationship contemplated hereunder, (including, but not limited to, any press release, client list, screen shot, advertisement or any promotional material) without first submitting such material to us and receiving our written approval, which we may withhold in our sole discretion.

15.

Confidentiality. Except as otherwise provided in this Agreement or with our prior written consent, Affiliate agrees that all information including, without limitation, the terms of this Agreement, our business and financial information, our customer lists, and our pricing and sales information, shall remain strictly confidential and shall not be utilized, directly or indirectly, by Affiliate for any purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than Affiliate or employees or agents. Notwithstanding the foregoing, you may deliver a copy of any such information (a) pursuant to a subpoena validly issued by any court or administrative agency, (b) to your accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process.

16.

Miscellaneous.

16.1.

Governing Law. This Agreement will be governed by the laws of the United States and the State of Delaware, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts having jurisdiction and venue in the State of Delaware and you irrevocably consent to the jurisdiction of such courts. Service of any action or proceeding in any of such courts by either party hereto may be made upon the other, by registered mail, return receipt requested, at its address given herein.

16.2.

Assignment. 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.

16.3.

Waiver. Our failure or agreement not to enforce your strict performance of any provision of this Agreement in a given instance will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.

16.4.

Entire Agreement. This Agreement constitutes the entire agreement and supersedes any other agreements or understandings between the parties regarding its subject matter. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and any terms or conditions set forth in any other document relating to the transactions contemplated by this Agreement, the terms and conditions of this Agreement will prevail.

16.5.

Relationship of Parties. This Agreement is not intended to create, nor should it be construed as creating, an agency, joint venture, partnership or similar relationship between the parties. Each party will act solely as an independent contractor and neither party will have the right to act for or bind the other party in any way or to represent that the other party is in any way responsible for any acts or omissions of such party.

16.6.

Remedies. All remedies available to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be deemed an election of such remedy to the exclusion of other remedies. In the event of any breach or threatened breach of the provisions of this Agreement, the remedies at law of the nonbreaching party will be inadequate and such party will be entitled to seek appropriate injunctive and/or other equitable relief in addition to its remedies at law.

16.7.

No Third Party Beneficiaries. There are no person(s) intended as third party beneficiaries of this Agreement; and no person or entity (other than the parties to this Agreement) will have any right to enforce any term of this Agreement.

16.8.

Construction. The provisions of this Agreement have been negotiated in good faith by the parties and their respective legal counsel. Any ambiguities in the language of this Agreement are not to be construed or resolved against either party based upon the fact that such party was principally responsible for drafting this Agreement or any specific provision hereof.

16.9.

Modification. Mars may modify any of the terms and conditions contained in this Agreement at any time, in its sole discretion, upon notice to Affiliate. Notwithstanding any provision to the contrary in this Agreement, notice of any change to this Agreement delivered by e-mail, to Affiliate’s address on record with Mars shall be considered sufficient notice. Affiliate’s sole recourse if it finds the modification unacceptable is the termination of this Agreement. Affiliate’s continued participation in the Program following notice of the change will constitute binding acceptance of such change.

16.10.

Notices. Except as otherwise provided in this Agreement, notices required or permitted to be given hereunder shall be in writing and shall be delivered: (a) personally; (b) by certified mail, return receipt requested; (c) by an overnight courier service having a record of receipt; or (d) by facsimile, with a confirming copy sent by one of the other three methods described in this sentence. Notices to Mars shall be addressed to: John F. Fisher, Mars Drinks, North America, Mars, Incorporated, 1301 Wilson Dr., West Chester, PA 19380. Communication to Mars, other than official notices under this Agreement, may be provided via email to john.f.fisher@effem.com. Notices to Affiliate shall be addressed to the address on record with Mars. Either party hereto may change its address by a notice given to the other party hereto in the manner set forth above. All such notices will be deemed to be effective on the earlier of (a) the date of actual receipt, or (b) if sent by courier service, on the second day following the date presented to the courier service for delivery to the other party, or (c) if sent by written communication, on the sending date (subject to confirmation of receipt in complete legible form).

16.11.

Severability. 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.