Independent Jewelry Consultant Terms & Conditions
Please read the following carefully before agreeing to participate in the Jewelry Central Independent Consultant Program (The "Consultant Program"). Once you are accepted into the Consultant Program, your participation in the program is governed by these terms and conditions. If you are entering into this agreement on behalf of a company or other entity, you represent and warrant that you are the employee or agent of such company (or other entity) and you have the authority to enter into this agreement on behalf of such company (or other entity). Please make sure you read and understand the terms and conditions below.
1. Introduction. These Jewelry Central Consultant Terms contain terms and conditions of the Jewelry Central Consultant Program. Defined terms in these Jewelry Central Consultant Terms include the following: (a) "you" or "your" shall mean you, the applicant applying to participate in the Consultant Program, and upon our acceptance of your application, the Consultant, (b) "we" or "us" or "our" shall mean Jewelry Central, (c) "our Web site" shall mean the Jewelry Central Web site currently located at www.jewelrycentral.com, (d) "your Web site" shall mean the World Wide Web site from which you will link to our Web site, (e) "Consultant" shall mean a party accepted as a member of the Consultant Program, (f) "User" shall mean a customer who links from your Web site to our Web site, (g) "Products" shall mean any merchandise offered for sale by us on our Web site and does not include items offered for sale by third parties on our Web site, (h) "Consultant Site" shall mean a Consultant Web site that has been accepted as a Consultant of Jewelry Central and (i) "Link" or "Links" shall mean banner advertisements, buttons, data feeds, storefronts, search boxes, links or text links that link to the Jewelry Central home page or other specific pages of the Jewelry Central Web site, containing the Jewelry Central Logo and/or other Jewelry Central Content, as defined below.
2. Consultant Program Enrollment. To begin the enrollment process in the Jewelry Central Consultant Program, you must complete an online application at www.jcstore.com, and accept the terms of this Agreement by clicking the acceptance checkbox at the bottom of the application. Once you have accepted this Agreement, we will review your completed Online Application and inform you whether or not you have been accepted as a Consultant. We reserve the right to accept or reject Consultants in our sole discretion. We may reject your application for any reason, including, if we determine in our sole discretion, that your Web site is inappropriate or objectionable. Web sites that are objectionable or inappropriate include sites that: (a) Are unavailable or under construction, (b) Are aesthetically unpleasing, (c) Contain hate/violent/sexually explicit/offensive content, (d) Promote excessive drinking and/or drug use, (e) Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (f) Are libelous, disparaging, or defamatory, (g) Promote violence or illegal activities, (h) Use "Jewelry Central", variations or misspellings in their domain names, or (i) Incorporate materials that infringe upon copyright, trademark or other intellectual property rights. To be eligible to participate in the Jewelry Consultant Program, you must: (1) Be an individual, business entity or charitable organization located in the United States, U.S. Territories or Canada, (2) Individuals must be at least eighteen years of age, (3) Possess a valid Social Security Number, Social Insurance Number or Federal Tax ID number, and (4) Submit an online application and agree to the terms and conditions.
3. Promotional Methods and Linking Rules. When you become a Consultant in our Consultant Program, we will provide you with online tutorials that will describe allowed promotional methods and provide Links that will allow Users to be transported when they click on the Link to Products on our Web site. As a Consultant, you may display these Links on your Web site or through other authorized promotional methods subject to your compliance with the terms and conditions contained in the Agreement. All Links are subject to our approval, and we will provide you with the information that you need to enable you to make appropriate Links to our Web site. By accepting these Jewelry Central Consultant Terms, you agree that you shall cooperate fully with Jewelry Central to maintain such Link or Links. You further agree that (a) such Link or Links shall be displayed prominently throughout your Web site or other authorized promotional method, (b) no Link or Links shall be modified, expanded or reduced in any way without our consent, and (c) no Link or Links published or distributed by you shall in any way modify the look, feel and/or functionality of our Web site. You will promptly remove from your site and delete or otherwise destroy any content or information that we notify you is not available for your use. You will not engage in any promotional, marketing, or other advertising activities on behalf of us or our affiliation with our Web site or the Consultant Program, except as specifically instructed in our online tutorials. You must not make inaccurate, overbroad, deceptive or otherwise misleading claims about Jewelry Central Content, promotions, links, products, services, Jewelry Central, our policies, discounts, and prices. Your links and Web site shall not imply our endorsement or sponsorship of, or commercial tie-in or other association with, any product, service, party, or cause (including by placing unrelated third party materials in close proximity to any Links or sections of your Web site that contain any Jewelry Central information). You will not take any action that could reasonably cause any customer confusion as to our relationship with you. We reserve the right to monitor your Web site and/or authorized promotional methods at any and at all times to make certain that you are in compliance with these Jewelry Central Consultant Terms. You shall be fully responsible for all content, links and activities conducted on your Web site or other promotional methods. We disclaim all liabilities related to such matters. In accordance with the Agreement, you agree that you shall not: (a) Place or use any Link of Jewelry Central except with the intention of delivering valid sales, leads, applications, accounts, clicks or other specified compensable actions; and (b) Inflate the number of applications, accounts, clicks or other specified compensable actions or any impressions of our web site, by any method or using any 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 Jewelry Central's Link before entering any area of your Site(s), by placing or including Promotions or links on pages of your Site that automatically reload or go to another page without interaction from the user (for example, client pull or server push technology, Metatag reload, or refresh command on page html) or on any page that is not generally accessible to all Web users (for example, pop-up windows and hidden frames). (c) Use any promotional text or discount offers in your meta description and titles for the purpose of search engine optimization. Consultants using any of the aforementioned techniques or methods will be terminated without notice and forfeit all outstanding and future commissions.
4. Order Fulfillment. All orders, customer service and fulfillment of such orders will be handled by and through Jewelry Central. You may not take orders, perform customer service or deliver Products on our behalf. We will process orders from any customers directed by you to our Web site, but we reserve the right to reject any orders that do not comply with any requirements that we may periodically impose. We will be solely responsible for all aspects of Product order processing and fulfillment, including order entry, payment processing, shipping, cancellations, returns and related customer service. We reserve the right to change the prices of any or all of our Products at any time in our sole discretion without notice. We cannot ensure that if an order is placed that any Product will be available to the customer or that a stated price for a Product will be accurate. We do not honor misquoted prices. All personal information regarding the customer is the sole and exclusive property of Jewelry Central and shall not be provided to you.
5. Commission Payments. Commissions (if any) available to you through the Consultant Program shall be set out in the Program Terms. The Commission shall be equal to a percentage of the Net Sales of Products purchased by a customer directed by you to our Web site utilizing an authorized promotional method (the "Commission"). "Net Sales" shall mean the gross sale price of a Product, excluding amounts collected by us for gift certificates, sales taxes, duties, shipping, handling, fraud, charge-backs, exchanges, credit card processing fees, taxes and similar charges. The maximum commissionable Net Sales per order is $8,000 (subject to change due to exchange rates). The Commission rates are subject to change at any time in our sole discretion with six (6) days' notice. In order for you to generate a Commission, you must first register your customer's email address inside your business center account. Your customer will then visit our web site and place an order at their convenience, or you can place the order on your customer's behalf directly on our web site. You will then receive lifetime commissions on any orders placed with that email address from any device, and from anywhere in the world. Your customer must accept delivery of the Product at the shipping destination, remit full payment to us and not cancel or return the order. You will not be eligible for a Commission under the following circumstances: (a) The customer returns the order for a refund, (b) The customer disputes the charge with their credit card company, (c) The customer opens a Paypal dispute for the order, (d) The customer disputes a wire transfer payment with their bank, (e) The customer cancels the order, or (f) The order is cancelled because the item is out of stock. If the customer exchanges the order, the commission will be adjusted to reflect the value of the new product(s). For each completed sale, your commission will be paid within 60 days of the shipping date provided all of the conditions in this Agreement have been met. Commissions will be paid directly into your Paypal account and will be minus any applicable Paypal transaction fees, provided that you have (a) not breached any terms or conditions of the Agreement, (b) met the conditions set forth herein, and (c) previously provided a valid email address to which the Paypal payment may be sent. Jewelry Central reserves the right to withhold any Commission payments if Jewelry Central determines, in its sole and absolute discretion, that (a) you have breached any terms or conditions of the Agreement; (b) you have not met the conditions set forth herein, or (c) your Web site or other promotional methods are deemed by us to be objectionable.
6. Pricing and Availability. Customers who purchase Products through the Consultant Program will be deemed to be customers of Jewelry Central. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service and sales will apply to those customers. We may change our policies and operating procedures at any time in our sole discretion without notice. Products, availability of our Products and our pricing of such Products may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or the price of any particular Product.
7. Intellectual Property. Subject to your compliance with the terms and conditions of this Agreement, we hereby grant to you a non-exclusive, non-transferable, non-sub licensable, revocable, limited license to use our Logo, name, url, trademarks and other materials that we provide to you directly through authorized promotional methods. You acknowledge and agree that such license is limited and that all right, title, ownership and interest in the Jewelry Central Content shall remain with us at all times. You shall use the Jewelry Central Content in exactly the form provided to you for your use. Your use of such Jewelry Central Content shall comply with any trademark usage policies that we may adopt from time to time. You shall not take any action inconsistent with our ownership of or goodwill associated with the Jewelry Central Content, including, without limitation, applying for registration of any of our trademarks (or any mark similar thereto) anywhere in the world. You agree that any benefits and goodwill arising from your use of the Jewelry Central Content shall inure solely to our benefit. You agree that you shall not engage, participate or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the image and/or reputation of Jewelry Central. You also agree that you shall not use the Jewelry Central Content in any manner that is disparaging or that otherwise portrays us in a negative light. We reserve all of our rights in the Jewelry Central Content and all other intellectual property rights. You shall not create, publish, distribute or permit any materials that make reference to us, without first submitting such material to us and receiving our written consent. We may revoke your license at any time. This license shall terminate upon the effective date of the expiration or termination of this Agreement and you shall immediately cease all use or publication of the Jewelry Central Content. You grant us a non-exclusive license to utilize your names, titles, logos, trademarks and urls (the "Consultant Trademarks") to advertise, market, promote and publicize in any manner our rights hereunder; provided, however, we shall not be required to advertise, market, promote or publicize your Web site. You hereby represent and warrant that you are the sole and exclusive owner of the Consultant Trademarks and have the right and power to grant us the license to use the same contemplated in this Agreement and that such grant does not and will not (a) breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon you or (b) infringe upon any trademark, trade name, service mark, copyright or other proprietary right of any other person or entity. This license shall terminate upon the effective date of the expiration or termination of this Agreement. Consultant agrees not to bid on Jewelry Central's name or trademarks or variations thereof, including, but not limited to: Jewelry Central, or jewelrycentral.com, within any and all pay-for-placement, paid inclusion and other search engines. In addition, Consultant may not claim to be Jewelry Central in any pay-for-placement, paid inclusion or other search engines, and must clearly state the nature of the Consultant relationship. Consultants violating this policy may be terminated without notice and forfeit all outstanding and future commissions.
8. Ownership of Confidential Information. The Jewelry Central Content (including, without limitation, the Links, images, banners, etc.) and all customer data collected pursuant to this Agreement are, as between us and you, our property and we own all right, title and interest in the Jewelry Central Content and customer data. During the course of this Agreement, Consultant may be in possession of or have access to certain confidential, non-public, proprietary, or secret information and material of Jewelry Central, including, without limitation, customer data or information, information regarding Product sales, and similar data ("Confidential Information"). You agree and acknowledge that this Confidential Information shall at all times be and remain our sole and exclusive property, and you further agree that: (a) You will hold all Confidential Information in the strictest confidence, and will protect all Confidential Information from any unauthorized use, disclosure, copying, dissemination or distribution, (b) You will not disclose any Confidential Information to any third party without our express prior written consent, (c) You will disclose Confidential Information within your organization only to the extent necessary for your compliance with the terms of this Agreement, (d) You will treat all Confidential Information with no less than the same degree of care as you accord your own secret or proprietary information, and (e) You will not utilize the Confidential Information in any way other than in connection with your compliance with this Agreement and your participation in the Consultant Program. Without limitation on the foregoing, you will not use any Confidential Information for the benefit of any third party or to design, develop, provide or market any other product or service. Upon termination of this Agreement, you agree to return to us all documents and other tangible materials and copies thereof in your possession containing any Confidential Information. You acknowledge that all Confidential Information is, and shall be, owned solely by us and that the unauthorized disclosure or use of such Confidential Information could cause irreparable harm and significant injury, the extent of which may be difficult to ascertain. The protections afforded to Confidential Information under this Agreement are in addition to, and not in lieu of, the protections afforded under any trade secrets laws, including the Uniform Trade Secrets Act.
9. Consultant Responsibilities and Promotional Methods. You will be solely responsible for the development, technical operation and maintenance of your Web site or other promotional methods and for all materials that appear on your Web site or other promotional methods. You shall be solely responsible for ensuring that materials posted on your Web site or in other promotional methods do not violate or infringe upon the rights of any third party, including copyright, trademark, privacy or other personal or proprietary rights, and ensuring that materials posted on your Web site or in other promotional methods are not libelous or otherwise illegal. You must have express written consent to use another party's copyrighted or proprietary material. We disclaim all responsibility if you use another party's copyrighted or other proprietary material in violation of the law. You represent and warrant that you will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any laws and/or regulations that govern advertising, email marketing and/or communications. Without limiting the foregoing, for any emails sent in connection with this Agreement: (a) Only an "opt-in" system may be used. (Opt-in systems are those where the user specifically requests to be placed on a mailing list.), (b) If you generate your own opt-in list through forms on your Web site, you must disclose that users will receive e-mailings from you, (c) Use of "opt-out" systems are strictly prohibited, (d) Use of any lists, whether purchased or created, compiled by means of automated tools are not permitted. This includes, for example, lists developed by scanning UseNet, e-mail archives, or Web pages for e-mail addresses, regardless of whether the scan was "targeted.", (e) You must use valid e-mail headers at all times, (f) You must give the Web address of the opt-in system used and tell the user receiving your mail that such e-mails can be stopped by visiting that opt-in site, and (g) If anyone contacts you and asks to be removed from your list you will do so within 48 hours and send an e-mail acknowledging the removal. You represent and warrant that you will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by your site content /site visit or by downloadable software applications for which you are the owner/operator. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results.
11. Account Security. You shall be responsible for all usage and activity on your Account and for loss, theft or unauthorized disclosure of your password. You shall provide us with prompt written notification of any known or suspected unauthorized use of your Account or breach of the security of your Account.
12. Ineligible States. You cannot participate in the consultant program if you are a resident of, physically present in, have a person physically present on your behalf in, or are otherwise located in any of the following states:
13. Term of Agreement. The term of this Agreement shall begin upon our acceptance of your Online Application and will end when terminated hereunder. We may terminate this Agreement at any time, with or without cause, by giving five (5) days' written notice of termination. Notice by e-mail to your address on our records is considered sufficient notice for our termination of this Agreement. This Agreement may be terminated immediately by us in the event that you violate this Agreement. This Agreement may also be terminated by us in less than five (5) days in the event any law in any jurisdiction is passed which, in our sole discretion, may cause us to immediately be subject to sales/use tax nexus in such jurisdiction. If this Agreement is terminated because (a) you violated the terms of this Agreement, or (b) because your Web site or other promotional methods are deemed by us to be objectionable, you are not eligible to receive any Commission payments, even Commissions that you earned prior to the date of your termination. If this Agreement is terminated for any other reason, then you shall be eligible to receive only those Commissions generated prior to the termination of this Agreement (except as provided below). Commissions earned through the termination of the Agreement shall remain payable only if the related Product orders are eligible. We reserve the right to withhold your final payment for a reasonable period of time to ensure that the correct amount is paid to you. Further, in the event that we determine, in our sole and absolute discretion, that you have breached or are breaching any of the terms set forth in this Agreement or have engaged or are engaging in any other activity which could cause us to be deemed a sales or similar tax collector under State law, we reserve the right to suspend or terminate your consultant relationship with Jewelry Central, including the forfeiture of any Commission payments from the date of the breach or activity.
14. Modification of Agreement. We reserve the right to modify the terms and conditions of this Agreement in our sole discretion upon six (6) days written notice by e-mail to your address on our records. If any modification is unacceptable to you, your sole recourse is to terminate this Agreement by expiring the relationship and/or rejecting the new Program Term offered. Consultant's continued participation in the Program by accepting the newly offered Program Term with new terms and conditions for this Agreement constitutes Consultant's binding acceptance to the change.
15. Relationship Between the Parties. Each party shall act as an independent contractor and nothing set forth in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section. You agree that as a Consultant, you are an independent contractor, and not an employee, partner, legal representative, or franchisee of Jewelry Central. You agree that you will be solely responsible for paying all expenses you incur, including but not limited to travel, food, lodging, secretarial, office, telephone, internet and any other expenses. Consultants shall establish their own goals, hours, place of business and methods of sale so long as they comply with this Agreement. Consultants are solely responsible for all decisions made and all costs incurred with respect to their business. You understand that you will not be treated as an employee of Jewelry Central for federal, state or local tax purposes. Jewelry Central is not responsible for withholding, and will not withhold or deduct from your commissions, if any, fica, or taxes of any kind.
16. Limitation on Liability. We will have no liability of any sort arising from any interruptions or errors in our web site. We 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 consultant 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, our aggregate liability arising under or with respect to this agreement or the consultant program shall in no event exceed the total amount of commissions paid by us to you under this agreement.
17. Disclaimer of Warranty. We hereby disclaim, and you hereby release us, from any and all liability for downtime or other interruptions in service regarding the links and/or our web site. Without limiting the foregoing, the Jewelry Central Content, links, and the licensed trademarks are provided to you "as is" without any warranty of any kind. We make no warranties or representations of any kind with regard to the consultant program or any products, 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. We do not warrant that our web site or products will be error free, function without interruption or that any errors will be corrected. If as a matter of law we may not disclaim any warranty, the scope and duration of such warranty shall be the minimum permissible under applicable law.
18. Indemnification. You hereby agree to indemnify, defend and hold harmless us and our officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, losses, liabilities, damages or expenses (including attorneys' fees) of any nature whatsoever incurred or suffered by us (the "Damages") insofar as such Damages (or actions in respect thereof) arise out of or are based upon: (a) any claim or threatened claim that our use of the Consultant Trademarks infringes on the rights of any third party, (b) your breach or alleged breach of this Agreement or any representation or warranty or covenant made by you in this Agreement, (c) your unauthorized use of any of our Confidential Information or (d) any claim related to your products, services, Web site or promotional methods, including any claims relating to the development, operation, maintenance, activities, contents and links of your Web site, emails or other promotional activities. Additionally, you shall indemnify, defend and hold harmless Jewelry Central from and against any administrative, regulatory or legal proceeding arising out of Jewelry Central's alleged failure to collect State sales tax to the extent that such proceeding results, in whole or in part, from your breach or alleged breach of any provision of this Agreement. You acknowledge that you have read this agreement and agree to all of 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 competitive with your web site. You have independently evaluated the desirability of participating in the program and are not relying on any representation, guarantee or statement other than as set forth in this agreement.
19. Binding Agreement. You hereby represent and warrant to us that this Agreement has been duly accepted and validly approved by your authorized agent and that such Agreement has been validly accepted and delivered by you and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms and that the acceptance, delivery and performance of this Agreement are within your legal capacity and power, have been duly authorized by all requisite action on your part, require the approval or consent of no other persons and neither violate nor constitute a default under the provision of any law, rule, regulation, order, judgment or decree to which you are subject or which is binding upon you, or the terms of any other agreement, document or instrument applicable to you or binding upon you.
20. Venue and Jurisdiction. This Agreement shall be governed by the laws of the United States and of the State of New York, as applied to agreements made, entered into and performed entirely within the State of New York, notwithstanding your actual state of residence or principal business location. Any action relating to this Agreement must be brought in federal or state courts located in New York County, New York and you irrevocably consent to the jurisdiction of such courts. You agree that damages may be inadequate to compensate Jewelry Central for the unique losses to be suffered in the event of a breach of this Agreement, and that Jewelry Central will be entitled, in addition to any other remedy it may have under this Agreement or at law, to seek and obtain injunctive and other equitable relief, including specific performance of the terms of this Agreement without the necessity of posting bond.
21. Assignment. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent, any such purported assignment shall be null and void. Subject to such restriction, this Agreement will be binding upon, inure to the benefit of and be enforceable against the parties and their respective successors and assigns.
22. 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. 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. This Agreement and the documents referenced herein constitute the entire agreement between the parties regarding its subject matter, and supersedes any other agreements or understandings between them.