AFFILIATE PARTICIPATION AGREEMENT
This Affiliate Participation Agreement contains the terms and conditions that apply to your participation as a member of the affiliate program (the “Affiliate Program”), the purpose of which is to permit you to advertise www.turtlefur.com (the “Merchant Website”), which is a website owned by [Partner Name] Company and/or one of its affiliated companies (“we” “us” or “Merchant”), to receive a Revenue Share from Qualifying Links (each as defined in this Agreement). This Affiliate Program may be administered through an affiliate partner (“Affiliate Network Partner”), operating an affiliate network (the “Partner Network”). In this Agreement, you are sometimes referred to as “you”, “your” or “Affiliate”.
This is a legally binding agreement. By joining this affiliate program, and by checking the box indicating that you agree to the terms and conditions of this Agreement, you are confirming that you (A) have read this agreement and that you agree to be bound by the terms and conditions contained in this agreement, (b) you are and will remain in compliance with the terms of this agreement. If you do not agree with any of the terms or conditions set forth herein, do not join this affiliate program.
- 1. Enrollment; Eligibility. In order to participate in this Affiliate Program, you must complete a participant application that is accessible through the Merchant Website or through the Partner Network. You will be notified if your application has been accepted or rejected. We reserve the right to reject any application in our sole discretion. If we reject your application, you may reapply at anytime. You must be at least 18 years of age to join this Affiliate Program. By submitting an application to participate in this Affiliate Program, you represent, warrant, covenant and agree that (i) all information that you provide to us or our Affiliate Partner in connection with your participant application and/or in connection with your participation in this Affiliate Program is true, complete and accurate, (ii) you have all necessary rights and authority to lawfully enter into this Agreement and perform your obligations hereunder, (iii) this Agreement will constitute a legal, binding and enforceable agreement against you in accordance with the terms and conditions herein, (iv) your execution and performance hereunder will not conflict with or result in a breach or violation of any other agreement, arrangement or understanding to which you are bound, and (v) if you are a corporation or other legal entity, the person agreeing to this Agreement on behalf of that corporation or entity is authorized and lawfully able to bind such company or entity to this Agreement.
- 2. Suitability of Affiliate Websites. (a) Your websites, blogs, social media properties or other web publishing properties (each, a “website” and collectively, “websites”) are not suitable, and you may not participate in the Affiliate Program if the websites operated by you violate any of the following website suitability restrictions. Further, you represent, warrant, covenant and agree that none of your participating websites or any content or technology contained thereon will, at any time during the period that you are an affiliate in this Affiliate Program, violate any of the following website suitability restrictions. In the event that we believe that you have violated any of the following website suitability restrictions we may, in addition to all other rights and remedies that we may have, terminate this Agreement and your participation in this Affiliate Program without notice. Your participating websites may not:
(a) infringe on or violate our, or any other person’s or entity’s, intellectual property, publicity, privacy or other rights;
(c) violate any law, rule or regulation;
(d) promote or contain any content that is threatening, harassing, libelous, defamatory, obscene, harmful to minors, or contains nudity, pornography or sexually explicit materials;
(e) contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information, or could otherwise be considered malware or spyware;
(f) contain material that is materially false, inaccurate, fraudulent or misleading or that promotes pyramid or similar schemes;
(g) promote violence or contain violent materials;
(h) promote or undertake any illegal or immoral activity;
(i) promote discrimination based upon gender, race, religion, nationality, disability, sexual orientation or age;
(j) use or promote the use of bulk email or spam;
k) contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate commissions from another website;
(l) use any software that gathers information through the customer’s Internet connection without his or her knowledge;
(m) install spyware on another person’s computer, or cause spyware to be installed on another person’s computer, or utilize any “opt-out downloads”. An “opt-out download” is any software, program, script, tool or element that would automatically download to a user’s computer or that would become operative when the user accesses the Internet unless the user takes affirmative action to prevent the download;
(n) market Merchant’s products via Amazon, eBay or other 3rd party marketplaces or comparison shopping sites;
- 3. Special Offers. Advance notice of promotions, sales, and special events is Confidential Information of ours until such events are publicized by us. From time to time you may be given prior notice of such events so that you may prepare content on your Website. The existence of such event and any Merchant Content provided to you is Confidential Information and may not be disclosed by you prior to the date specified by us. You also agree upon notice to promptly remove any Confidential Information from your site upon our request.
- 5. Merchant Content Usage Restrictions. If you fail to comply with any of the restrictions in this Section 5, at our sole discretion, you will forfeit any commissions or other payments otherwise earned by you during such time that you are not in compliance.
(a) Obtaining and Using Merchant Content. You agree that you will not, except as specifically provided for in this Agreement (i) copy or obtain any images or other content relating to the Merchant from the Merchant Website or elsewhere, except through the Partner Network, (ii) copy or display any Merchant Content, (iii) modify, adapt, translate or create derivative works based on the Merchant Content, (iv) remove, erase, or tamper with any copyright or other proprietary notices in any copy of any of the Merchant Content, (v) sell, market, license, sublicense, distribute, disclose or otherwise grant to any person or entity any right or interest in the Merchant Content, (vi) take any action which may cause deception, confusion or otherwise dilutes the quality of the Merchant Content or the goodwill associated therewith, or (vii) use the Merchant Content in any manner which disparages or portrays us in a false, competitively adverse or poor light.
(b) No Keyword Purchasing. Use of Paid Search Marketing (PPC) is not permitted in the Affiliate Program without express written consent. This includes purchase or placement of ads on third-party search engines including, but not limited to Google.com, AOL.com, Yahoo.com, Bing.com, MSN.com Facebook.com, Ask.com. theFind.com and Miva.com or any other search engines or platforms offering the ability to buy traffic based on keywords on a CPC, PPC or CPM basis. The following keywords are expressly prohibited:
Sea to Summit
Sea to Summit Dry Bags
Sea to Summit Pillows
Sea to Summit Sleeping Pads
Sea to Summit Dry Bags
Sea to Summit Pillows
Sea to Summit Dry Bags
Sea to Summit Sleeping Mats
Sea to Summit Sleeping Bags
Sea to Summit Compression Sack
Sea to Summit eVent
Sea to Summit Ultralight Insulated Sleeping Mat
Sea to Summit Ultralight Sleeping Mat
Sea to Summit Spark Sleeping Bag
Sea to Summit Lightweight Dry Bag
(c) Trademark and Look and Feel Restrictions. Additionally, you agree that (i) you will not include any name, trademark, trade name, service name, logo or similar business identifier, or any variation or misspelling thereof, which is owned or controlled by us in any domain name, URL, or similar identifier used by you, (ii) you will not alter or attempt to alter the look, feel, content, features or functionality of the Merchant Website, (iii) you will immediately substitute or remove any Merchant Content from your websites at our request, (iv) your websites will not in any way copy or resemble the look, feel or content of the Merchant Website or create any impression that your websites are part of the Merchant Website, (v) you will not purchase or contract with any other person or entity to exploit any name, trademark, trade name, service name, logo or similar business identifier, or any variation or misspelling thereof, which is owned or controlled by us for any purpose, (vi) you will not use any Merchant Content in a manner which links or otherwise directs potential customers to any website other than the Merchant Website, and (vii) you will not attempt to intercept or redirect potential customers from or on the Merchant Website or any other website participating in this Affiliate Program.
(d) Promotion Codes & Coupons. You may not, without our prior written consent, utilize any promotion, promotion code, coupon, or another promotional opportunity that is not specifically authorized for Merchant’s Affiliate Program and explicitly authorized for your use. Any code not distributed for general use to all affiliates or to a specific affiliate through the Partner Network will be considered unauthorized and must be removed immediately. Affiliates may not use (i) “Click to Reveal” technology on their sites to obscure promotional codes; (ii) misleading text on affiliate links, buttons or images to imply that anything besides currently authorized deals or other savings are available; (iii) pop-ups, pop-unders, iframes, frames or any other actions (whether or not visible) that set affiliate cookies unless the user has expressly consented to activating specific coupon or savings and the user is able to see information regarding the coupon or savings before an affiliate cookie is set (e.g., “click here to see coupons and open a window to Merchant Site” is not acceptable); or (iv) click to reveal functionality in connection with the Affiliate Program. Affiliates may not market Merchant promotion codes or coupons in any manner if an authorized promotion code or coupon does not exist. “User Submission” of coupon codes and deals is not allowed and this functionality must be disabled on Merchant-related pages on affiliate sites. Any Merchant promotion codes or coupons must be used only as authorized and not used in connection with any other promotion codes or offers. Any links with respect to any such promotion codes or coupons must link directly to the Merchant Site. You may not use promotion codes or coupons acquired from any source other than Merchant or the Affiliate Partner Network. You must clearly display expiration dates of each Merchant promotion code or coupon and you may not display any expired promotion code or coupons. You must remove any coupon or deal listing from your websites, blog or social media channels immediately upon our request for any reason. Failure to comply with a removal request, or any other terms and conditions regarding promotion codes or coupons, may result in immediate termination of this Agreement by us and forfeiture of any amounts otherwise payable to you under this Agreement.
(e) Communications with Consumers. You may not, without our prior written consent, (i) generate or send any email messages, text or mobile messages, or other electronic messages (“Electronic Messages”) using or containing and our name or logo, or any variation thereof, or any of our trademarks or products, or any of the Qualifying Links or URLs provided to you as part of the Affiliate Program, (ii) send any Electronic Messages that in any way suggests or implies or misleads or is likely to mislead (including without limitation, via the return address, subject heading, header information or message contents) a recipient into believing that we or any related entity was the sender or sponsor of such email or procured or induced you to send such email, (iii) forward, redistribute, or otherwise repurpose any Electronic Messages that we send our customers or members of the Partner Network, and (iv) generate or send any unsolicited email (spam) under this Agreement or any email in violation of the CAN-SPAM Act of 2003 (including any amendments or successor laws) or any other applicable laws or regulations.
- 6. Property Ownership Rights. You acknowledge and agree that we retain all rights, title and interest in and to all property rights embodied in or associated with the Merchant Content. You represent, warrant, covenant and agree that you will not, and will not assist any third party to, now or in the future, (i) take any action challenging or otherwise inconsistent with our ownership of, or other right in, the Merchant Content, or (ii) register or attempt to register any trademark, service mark, logo, trade name, domain name, or similar business identifier, that contains any name, trademark, service mark, logo, trade name or other content or material owned or controlled by us or any derivation, including misspellings, thereof. All goodwill and benefits accruing from the use of the Merchant Content will automatically vest in us. You agree to cooperate with us and to take any additional actions reasonably requested by us to effect, perfect or confirm our rights, title and interest in the Merchant Content.
- 7. Responsibility for Your Websites and Your Participation. (a) You will be solely responsible for the development, operation, and maintenance of all websites that are linked to the Merchant Website hereunder and for all content, technology and other materials that appear on such websites. You acknowledge and agree that you are responsible for complying with all of the terms and conditions hereof and all applicable laws, rules and regulations. You represent, warrant, covenant, and agree that:
(i) you will not state or imply that we sponsor, endorse, sanction or otherwise approve your website or any of your products or service,
(ii) you will not state or imply that you are an affiliate, associate, partner or agent of ours or otherwise take any action that could reasonably cause customers confusion as to our relationship with you,
(iii) you will not take any action that could reasonably cause customers confusion as to the website on which any data collection, purchase transaction or other functions are occurring,
(iv) you will make no representations regarding the association of Affiliate Network Partner with us or you,
(v) at all times during and after the term of this Agreement, you will protect all of our and Affiliate Network Partner’s Confidential Information (as defined below) that you obtain or otherwise have access to with the same degree of care that you use to protect your own confidential and proprietary information but in no event less than a reasonable standard of care,
(vi) you will only use our and Affiliate Network Partner’s Confidential Information to the extent necessary to perform your obligations hereunder,
(vii) you will not use or display any trademark, service mark, logo or other content of Affiliate Network Partner or infringe any of Affiliate Network Partner’s technology rights, and
(viii) you will promptly notify us and Affiliate Network Partner of any malfunctioning of the Qualifying Links or other problems with your participation in the Program.
(b) We disclaim all liability for all such matters. Further, you agree to defend, indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys fees) relating to the development, operation, maintenance or content of your website.
(c) For purposes of this Agreement, “Confidential Information” means all non-public information provided or obtained by you about us, including, without limitation, all customer information, and all business and sales information related to transactions through this Affiliate Program.
- 8. Violation of Terms and Affiliate Indemnification.
(a) Violation of any of the terms, conditions or prohibitions contained in this Agreement may result in, among other things, the immediate termination of this Agreement and the commencement of an action by us against you seeking, without limitation, injunctive relief, and the recovery of actual, statutory and punitive damages.
(b) You, at your own cost and expense, will indemnify, defend and hold harmless, us, our parents, subsidiaries and company affiliates, and each of their respective directors, officers, employees, agents, successors and assigns against any claim, suit, action, judgment, liability, loss, cost, expenses and other damages (even if such claims are groundless, fraudulent or false), including reasonable attorney’s fees, based upon or in connection with (i) any breach or alleged breach of your representations, warranties, covenants agreements, or obligations hereunder, (ii) your websites or related business, including any content, technology or other materials displayed or contained thereon, (iii) your infringement, violation or misappropriation (whether or not through your website) of any third party’s rights, including claims of misappropriation or infringement, (iv) your failure or alleged failure to comply with any applicable law, rule or regulation, (v) claims for unsolicited email, spamming or violation of the CAN-SPAM Act of 2003 (or any successor statute), (vi) your misuse, unauthorized modification or unauthorized use of the services or materials provided by us or Affiliate Network Partner hereunder, or (vii) any actual or alleged wrongful or negligent act or omission or willful misconduct by you or your employees.
- 9. Term and Termination. (a) This Agreement shall automatically terminate on the date on which we no longer maintain or you are no longer a member of the Affiliate Program contemplated hereunder. Additionally, either party may terminate this Agreement and the relationship, in accordance with the following: (i) We shall provide you with seven (7) days written notice via the Partner Network (via the “Expire” option); or (ii) you shall use the automated system within the Partner Network to expire the affiliation. We may also request Affiliate Network Partner to terminate this Agreement immediately, without notice, if we determine, that you have breached this Agreement.
(b) Upon termination of this Agreement, you will immediately cease use of, and remove from your website, all links to our website and all Merchant Content including any and all banner ads, text link , nd product links.
(c) You are only eligible to earn a Revenue Share on sales of products occurring during the term of this Agreement, and referral fees earned through the date of termination will remain payable only if the related orders are not canceled or returned by a customer. In addition, we may invoice you for Revenue Share that was paid to you prior to termination if those referral fees relate to products that are subsequently canceled or returned by a customer. In the event an overpayment is made by us, you agree to promptly remit such overpayment to us upon notification by us. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
- 10. Modification of Agreement. We reserve the right to modify this Agreement, at any time in our sole discretion, upon seven (7) days written notice through the Partner Network (via the “Replace” option) with effect from the 8th day (or such later date as specified by us) to you. 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. Your continued participation in the Program by accepting the newly offered Program Term with new terms and conditions for this Agreement constitutes your binding acceptance to the change.
- 11. Independent Contractors. We, you and Affiliate Network Partner are each independent contractors and nothing in this Agreement or in any Affiliate Network Partner affiliate program documents is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative, or employment relationship.
- 12. Press Release; Publicity. You will not issue any press release or make any other similar public announcement that in any way makes any reference to us, this Agreement, the Affiliate Program or your participation in the Affiliate Program, without our prior written consent, which consent may be withheld in our sole discretion. You must, however, clearly and conspicuously state the following on each of your websites: “[insert your name] is a participant in the [Partner Name] Affiliate Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to [insert the applicable Merchant Website].”
- 13. Force Majeure. Our performance under this Agreement shall be excused to the extent that such performance is hindered, delayed or made commercially impractical by causes beyond our reasonable control.
- 14. Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for the convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify, or place any construction upon or on any of the provisions of this Agreement.
- 15. Assignment. You may not assign this Agreement or any of your rights or delegate any of your obligations under this Agreement, by operation of law or otherwise, without our prior written consent, and any such attempted assignment shall be void. Subject to such restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
- 16. Waiver. Our failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.