DIAMONDRESORTS.COM AFFILIATE AGREEMENT
PLEASE READ THE ENTIRE AGREEMENT.
YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.
As an authorized affiliate (Affiliate) of Diamond Resorts (Diamondresorts.com), you agree to abide by the terms and conditions contained in this Agreement (Agreement). Please read the entire Agreement carefully before registering and promoting Diamondresorts.com as an Affiliate.
Your participation in the Program is solely to legally advertise our website to receive a commission on vacation products purchased by individuals referred to DiamondResorts.com by your own website or personal referrals.
By signing up for the DiamondResorts.com Affiliate Program (Program), you indicate your acceptance of this Agreement and its terms and conditions.
1. Approval or Rejection of the Application
We reserve the right to approve or reject ANY Affiliate Program Application in our sole and absolute discretion. You will have no legal recourse against us for the rejection of your Affiliate Program Application.
2. Affiliate Obligations
i. To begin the enrollment process, you will complete and submit the online application on CJ.com. Your application will be reviewed by the Affiliate Manager within 72 hours. We may reject your application at our sole discretion. We may cancel your application if we determine that your site is unsuitable for our Program, including if it:
a. Promotes sexually explicit materials
b. Promotes violence
c. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age
d. Promotes illegal activities
e. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
f. Includes "Diamond Resorts" or variations or misspellings thereof in its domain name
g. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion
h. Contains software downloads that potentially enable diversions of commission from other affiliates in our program
i. You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website, nor design your website in a manner which leads customers to believe you are DiamondResorts.com or any other affiliated business
ii. As a member of the DiamondResorts.com Affiliate Program, you will have access to CJ.com’s Account Manager dashboard. Here you will be able to review our Program’s details and previously published affiliate newsletters, download HTML code (that provides for links to webpages within the DiamondResorts.com website) and banner creatives, browse and get tracking codes for our coupons and deals. In order for us to accurately keep track of all guest visits from your site to ours, you must use the HTML code that we provide for each banner, text link or other affiliate link we provide you with. From their site you will also be able to receive your reports that will describe our calculation of the commissions due to you.
iii. Diamond Resorts reserves the right, at any time, to review your placement and approve the use of Your Links and require that you change the placement or use to comply with the guidelines provided to you.
iv. The maintenance and the updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
v. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person's copyrighted material, whether it be a writing, an image or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person's copyrighted material or other intellectual property in violation of the law or any third party rights.
3. DiamondResorts.com Rights and Obligations
i. We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made, or to make sure that your links to our web site are appropriate and to notify further you of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the DiamondResorts.com Affiliate Program.
ii. DiamondResorts.com reserves the right to terminate this Agreement and your participation in the DiamondResorts.com Affiliate Program immediately and without notice to you should you commit fraud in your use of the DiamondResorts.com Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, DiamondResorts.com shall not be liable to you for any commissions for such fraudulent sales.
iii. This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated hereunder.
For an Affiliate to receive a commission, the qualified referred party must have a reservation purchased on DiamondResorts.com/Deals. The payment will be processed 10 business days after the referral’s purchase (the cancellation period). Payments will only be sent for transactions that have been successfully completed. Transactions that result in chargebacks or refunds will not be paid out. Payment will not be made for parties who do not meet the qualifications and who purchase an unqualified package. Please review DiamondResorts.com/Deals for specific qualifications.
You cannot refer yourself, and you will not receive a commission on your own accounts. There is also a limit of one commission per referral. If someone clicks the link on your site and orders multiple accounts, then you will receive a commission on the first order only.
DiamondResorts.com uses a third party to handle all of the tracking and payment. The third party is the CJ.com affiliate network. Kindly review the network’s payment terms and conditions.
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and the DiamondResorts.com Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in the DiamondResorts.com Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email or fax. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you.
Your affiliate application and status in the Program may be suspended or terminated for any of the following reasons:
i. Inappropriate advertisements (false claims, misleading hyperlinks, etc.).
ii. Spamming (mass email, mass newsgroup posting, etc.).
iii. Advertising on sites containing or promoting illegal activities.
iv. Failure to disclose the affiliate relationship for any promotion that qualifies as an endorsement under existing Federal Trade Commission guidelines and regulations, or any applicable state laws.
v. Violation of intellectual property rights. Diamond Resorts reserves the right to require license agreements from those who employ trademarks of Diamond Resorts in order to protect our intellectual property rights.
vi. Offering rebates, coupons or other form of promised kick-backs from your affiliate commission as an incentive. Adding bonuses or bundling other products with Diamond Resorts, however, is acceptable.
vii. Self referrals, fraudulent transactions, suspected Affiliate fraud.
7. Affiliate Links
You may use graphic and text links both on your website and within in your email messages. You may also advertise the Diamond Resorts site in online and offline classified ads, magazines, and newspapers. You may only use the graphics and text provided by us.
8. Coupon and Deal Sites
Diamond Resorts occasionally offers coupons to select affiliates and to our newsletter subscribers. If you’re not pre-approved / assigned a branded coupon, then you’re not allowed to promote the coupon. Below are the terms that apply for any affiliate who is considering the promotion of our products in relation to a deal or coupon:
i. Affiliates may not use misleading text on affiliate links, buttons or images to imply anything besides currently authorized deals to the specific affiliate.
ii. Affiliates may not bid on DiamondResorts.com Coupons, DiamondResorts.com Discounts or other phrases implying coupons are available.
iii. Affiliates may not generate pop-ups, pop-unders, iframes, frames or any other seen or unseen actions that set affiliate cookies unless the user has expressed a clear and explicit interest in activating a specific savings by clicking on a clearly marked link, button or image for that particular coupon or deal. Your link must send the visitor to the Diamond Resorts site.
iv. User must be able to see coupon/deal/savings information and details before an affiliate cookie is set (i.e. “click here to see coupons and open a window to merchant site” is NOT allowed).
v. Affiliate sites may not have “Click for (or to see) Deal/Coupon” or any variation, when there are no coupons or deals available, and the click opens the merchant site or sets a cookie. Affiliates with such text on the landing page will be removed from the program immediately.
9. Promotion Restrictions
i. You are free to promote your own websites, but naturally any promotion that mentions DiamondResorts.com could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by DiamondResorts.com. For example, advertising commonly referred to as "spamming" is unacceptable to us and could cause damage to our name.
ii. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name or your return email address.
iii. You may use mailings to customers to promote DiamondResorts.com so long as the recipient is already a customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote DiamondResorts.com so long as the news group specifically welcomes commercial messages.
iv. At all times, you must clearly represent yourself and your web sites as independent from DiamondResorts.com. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the DiamondResorts.com Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
v. Affiliates that among other keywords or exclusively bid in their Pay-Per-Click (PPC) campaigns on keywords such as diamondresorts.com, Diamond Resorts, www.EiamondResorts, www.DiamondResorts.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to redirecting it to ours, will be considered trademark violators, and will be banned from the Diamond Resorts Marketing Affiliate Program. We will do everything possible to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior.
vi. Affiliates are not prohibited from keying in prospect’s information into the lead form as long as the information is real and true, and these are valid leads (i.e. sincerely interested in Diamond Resorts’ service).
vii. Affiliate shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited the Diamond Resorts website (i.e., no page from our site or any DiamondResorts.com’s content or branding is visible on the end-user’s screen). As used herein, a “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non-affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a webpage or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing pop-ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of the Diamond Resorts website in IFrames, hidden links and automatic pop ups that open DiamondResorts.com; (d) targets text on websites, other than those websites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on websites 100% owned by the owner of the application.
Diamond Resorts will not be liable for indirect or accidental damages (loss of revenue, commissions) due to affiliate tracking failures, loss of database files, or any results of intents of harm to the Program and/or to our website(s).
We will not be liable to you with respect to any subject matter of this agreement under the any contract, negligence, tort, strict liability or other legal or equitable theory for any indirect, incidental, consequential, special or exemplary damages (including, without limitation, loss of revenue or goodwill or anticipated profits or lost business), even if we have been advised of the possibility of such damages. Further, notwithstanding anything to the contrary contained in the agreement, in no event shall DiamondResorts.com’s cumulative liability to you arising out of or related to this agreement, whether based in contract, negligence, strict liability, tort or other legal or equitable theory, exceed the total commission fees paid to you under this agreement.
We do not make any expressed or implied warranties with respect to the Program and/or the memberships or products sold by Diamond Resorts. We make no claim that the operation of the Program and/or our website(s) will be error-free and we will not be liable for any interruptions or errors.
11. Term of the Agreement
The term of this Agreement begins upon your acceptance in the Program and will end when your Affiliate account is terminated.
The terms and conditions of this agreement may be modified by us at any time. If any modification to the terms and conditions of this Agreement are unacceptable to you, your only choice is to terminate your Affiliate account. Your continuing participation in the Program will constitute your acceptance of any change.
You hereby agree to indemnify and hold harmless Diamond Resorts and its affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, including those licensed or authorized by Diamond Resorts to transmit and distribute materials, from any and all liabilities, damages, fines, judgments, claims, costs, losses, and expenses (including reasonable legal fees and costs) arising out of or based on any and all claims sustained in connection with this Agreement due to the negligence, misrepresentation, failure to disclose, or intentional misconduct of Affiliate.
13. Grant of Licenses
i. We grant to you a non-exclusive, non-transferable, revocable right to (1) access our site through HTML links solely in accordance with the terms of this Agreement and (2) solely in connection with such links, to use our logos, trade names, trademarks and similar identifying material (collectively, the "Licensed Materials") that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of DiamondResorts.com Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of DiamondResorts.com and the good will associated therewith will inure to the sole benefit of DiamondResorts.com.
ii. Each party agrees not to use the other's proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title and interest to its respective rights and no right, title or interest is transferred to the other.
14. Governing Law, Jurisdiction and Attorney Fees
This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of Nevada. Any dispute arising under or related in any way to this Agreement shall be adjudicated exclusively in the state courts located in Palm Beach County, Florida.
In the event of litigation to enforce any provision of this Agreement, the prevailing party will be entitled to recover from the other party its costs and fees, including reasonable legal fees.
All confidential information, including, but not limited to, any business, technical, financial and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked "Confidential," will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
16. Representations and Warranties
You represent and warrant that:
i. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;
ii. You have the full right, power and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
iii. You have sufficient right, title and interest in and to the rights granted to us in this Agreement.
i. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between you and DiamondResorts.com. 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 any other of Your Site or otherwise, that reasonably would contradict anything in this Section.
ii. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party.
iii. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
iv. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
v. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
vi. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.