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This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Real Groovy Affiliates Program (the "Program"). As used in this Agreement, "we" means Real Groovy, "you" means the applicant, and "merchandise" means any item offered for sale in the Real Groovy store. "Site" means a World Wide Web site and, depending on the context, refers either to Real Groovy's site or to the site that you will link to our site.

1. Enrollment in the Program

To begin the enrollment process, you will submit a complete Program application via our site. We will evaluate your application in good faith and will notify you of your acceptance or rejection. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Program. Unsuitable sites include, but are not limited to, sites that:

promote or contain or link to sexually explicit materials
promote violence
promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
promote illegal activities
violate intellectual property rights or violate any local, state, federal or other law or regulation
contain any libelous, defamatory or disparaging materials
contain little or no original content

If we reject your application, you are welcome to reapply to the Program at any time.

2. Linking to Real Groovy

You will link directly into Real Groovy. We provide access to a toolkit with an HTML link generator. You must use the generator to create your links in order to meet the criteria in the operating agreement.

If you would like to use links not created by the generator, or you would like to modify the links generated by the generator, you need prior written permission from Real Groovy. You may not alter any banners, logos, or other content available through the link generator without written permission from Real Groovy. You may add or delete links from your site at any time without our approval.

*Note: You may not list any prices on your site for products offered by Real Groovy.

New requirements may be added from time to time and will be posted in the Operating Agreement. It is your responsibility as the affiliate to ensure that all changes to the Operating Agreement are adhered to.

3. Order Processing

We will process merchandise orders placed by customers who follow links from your site to Real Groovy. 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 and fulfillment.

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 merchandise using links from your site to our store and will provide you reports summarizing this sales activity. To permit accurate tracking, reporting, and fee accrual, you must ensure that the links between your site and our site are created with the HTML link generator. If our product pages change and you have links that direct visitors to these pages, we will re-direct your visitors to an appropriate page automatically.

4. Referral Fees

Subject to the terms and conditions of this Agreement, we will pay you referral fees on all merchandise sales to third parties. For a merchandise sale to generate a referral fee, the customer must follow a link from your site to our store, purchase a merchandise item using our automated ordering system, accept delivery of the merchandise at the shipping destination, and remit full payment to us.

5. Fee Schedule

You will earn referral fees based on the sale price of qualifying merchandise, according to fee schedules to be established by us. Sale price means the sale price a customer pays for a product and excludes costs for shipping, handling, gift wrapping, returns, chargebacks, fraud, exchanges, credit card processing fees, and taxes. We do not pay commissions for sales using Real Groovy gift certificates.

The monthly fee schedule is as follows, starting February 1, 2003:

Earn 5% for sales

The fee schedule is subject to change without notice. Values are expressed in New Zealand dollars.

6. Fee Payment

Subject to the terms and conditions of this Agreement, we will pay you referral fees on a monthly basis. Approximately 20 days following the end of each calendar month, we will send you a cheque or make payment to a bank account nominated by you for the referral fees earned on merchandise that was shipped during that month, less any taxes that we are required by law to withhold. However, if the fees payable to you for any calendar month are less than $50.00, we will hold those fees until the total amount due is at least $50.00 or (if earlier) until this Agreement is terminated. If a merchandise item that generated a referral fee is returned by the customer, we will deduct the corresponding fee from your next monthly payment. If there is no subsequent payment, we will send you a bill for the fee, which is due to Real Groovy thirty (30) days after you receive the bill.

7. Policies & Pricing

Customers who buy merchandise through this Program will be deemed to be customers of Real Groovy. Accordingly, all Real Groovy rules, policies, and operating procedures concerning customer orders, customer service, marketing, promotions, and merchandise 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 merchandise sold under this Program in accordance with our own pricing policies.
Merchandise prices and availability may vary from time to time.

We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular merchandise item.

8. Identifying Yourself as an Affiliate

We will make available to you a small graphic image that identifies your site as a Program participant. You may display this logo somewhere on your site.

Please do not indicate that you are "part of" Real Groovy, "partners" with us, or that you "work for Real Groovy".

We may modify the text or graphical image of this notice from time to time.

9. Limited License

We grant you a non-exclusive, non-transferable, non-sublicensable, revocable right to use the icon and message described in Section 8 and such other images for which we grant express permission, solely for the purpose of identifying your site as a Program participant. You may not modify the "Marks" (including, without limitation, the marks of Real Groovy), the message, or any of our images in any way. We reserve all of our rights in the Mark, the message, any other images, our trade names and trademarks, and all other intellectual property rights. We may revoke your license at any time by giving you written notice.

10. Responsibility for Your Site

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: the technical operation of your site and all related equipment, ensuring 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), ensuring that materials posted on your site are 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.

Except as provided here you agree that you have no rights, title or interest in or to the Marks, the message or other images of Real Groovy. You agree not to apply for registration of any of the Marks (or any mark similar there to) anywhere around the world. You agree that you will 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 any Real Groovy Mark.

Members acknowledge and agree that their Web site information (name, URL, traffic counts, etc.) may be utilized by Real Groovy. Possible uses include, but are not limited to, lists of the busiest sites, lists of member sites, etc. Members agree to allow Real Groovy to use screen shots of any Web page that contains the Real Groovy HTML code in Real Groovy promotional materials.

The information provided by Real Groovy to members may be proprietary in nature. Members acknowledge that they are not competitors of Real Groovy, and agree not to share this information with any competitors.
Anyone found in deliberate violation of these terms and conditions is subject to being banned from Real Groovy.

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 written notice of termination. You are only eligible to earn referral fees on sales occurring during the term, and fees earned through the date of termination will remain payable only if the related merchandise orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.

12. Modification

We may modify any of the terms and conditions contained in this Agreement, at any time and in 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 Program rules. Your continued participation now, or within thirty (30) days following the posting notice of any changes in these terms and conditions, will constitute a binding acceptance by you of such rules, changes or modifications. 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 WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.

13. Relationship of Parties

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 on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.

14. 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.

Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to you under to this Agreement.

15. Disclaimers

We make no express or implied warranties or representations with respect to the Program or any merchandise 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.

Further, you will indemnify and hold us harmless from all claims, damages and expenses (including, without limitation, attorney's fees) relating to any warranties or representations made by you with respect to the Program or any merchandise sold through the program or Real Groovy. Further, you will indemnify and hold us harmless from all claims, damages and expenses (including without limitation, attorney's fees) relating to any warranties or representations made by you with respect to the Program or any merchandise sold through the program or Real Groovy. This obligation will survive any termination of this Agreement.

16. INDEPENDENT INVESTIGATION

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 PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

17. Miscellaneous

This Agreement will be governed by the laws of New Zealand, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the courts located in Auckland, New Zealand, and 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