Affiliate Agreement
Overview
This Foot Petals Affiliate Agreement (the "Agreement") sets forth the complete terms and conditions that apply to a party's participation in the Affiliate Program (the "Program") of Foot Petals LLC., a Long Beach limited liability corporation ("Foot Petals"). As used in this Agreement, the terms "we" and "Merchant" mean Foot Petals, and the terms "you" and "Partner" mean the applicant party (each referred to herein as a "Party" and collectively as the "Parties").
Background
A. Partner owns, licenses, and provides certain services via the Internet through a Web site owned and operated by Partner ("Partner Site").
B. Merchant provides certain services and sells certain products via the Internet through a Web site owned and operated by Merchant currently located at www.Footpetals.com (the "Merchant Site").
C. Partner and Merchant are each enrolled in The LinkShare Network (tm).
D. Partner and Merchant desire to enter into a strategic affiliate relationship to promote the Merchant Site to users of the Partner Site (the "Partner Users") in accordance with the terms and conditions of this Agreement and in exchange for the consideration recited herein.
Enrollment
To begin the enrollment process, you must submit a completed Program application at the LinkShare Site located at www.linkshare.com. We will evaluate your application and promptly notify you of your acceptance or rejection. We may reject your application if we determine, in our sole discretion, that your Web site is not suitable for the Program for any reason, including but not limited to, inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethnically, or otherwise objectionable. Unsuitable Web sites include, without limitation, sites that contain, or link to, (i) sexually explicit, pornographic, or obscene content (whether in text or graphics), (ii) speech or images that are offensive, profane, hateful, threatening, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise), (iii) graphic violence (which may include certain types of game sites), (iv) content related to liquor, tobacco, firearms, drugs, gambling, crime, or death, (v) politically sensitive or controversial issues (e.g. abortion, capital punishment) or other political content (e.g. lobbyists, political campaigns) or (vi) any unlawful behavior or conduct, including materials that infringe our intellectual property rights or those of any third party. If we reject your application, you may reapply to the Program at any time. However, we may, at our discretion, permanently bar you from participation in the Program if your Site or business is inconsistent with our objectives or the operation of our Program. If we do so, we will inform you of our decision.
Terms and Conditions
In consideration of the promises set forth below, the parties agree as follows:
1. Offers and Engagements
1.1. From time to time, Merchant may post on The LinkShare Network(tm) offers to pay to other participants a specified commission in return for certain advertising services leading to a Qualifying Link (defined below). If such offers receive an identification number from The LinkShare Network(tm) they will be deemed to be an "Offer" for purposes of this Agreement. The term "Offer" will also include any counter-offers resulting from an Offer.
1.2. If an Offer made by one party is accepted by the other party in accordance with the Offer's terms via The LinkShare Network(tm), an "Engagement" will have been formed. Each Engagement will have the same identification number as the original Offer that led to the Engagement and will be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the Engagement and the terms of this Agreement, the terms of the Engagement will govern.
1.3. At any time before Partner provides a Qualifying Link, Merchant may, with or without notice, (a) change, suspend, revoke, or discontinue any aspect of an Offer or an Engagement or this Agreement or (b) remove, alter, or modify any graphic or banner ad submitted by Merchant for an Offer or an Engagement. Partner must promptly comply with any request from Merchant to remove, alter or modify any graphic, trademark, banner ad, or logo submitted by Merchant that is being used by Partner as part of an Engagement.
2. Partner's Responsibilities
2.1. For the purposes of this Agreement, a "Link" will be defined as a hyperlink, button, banner, or other user interface established within one Web site to another Web site through which users of the first Web site can access the second Web site. Partner will link the Partner Site to areas within the Merchant Site using Links to the Merchant Site in accordance with the special URLs specified in the Engagement (the "Required URLs"), as may be amended from time to time by Merchant. To the extent Merchant chooses to add a Required URL, Partner must add a corresponding Link to the Merchant Site within ten (10) business days of Partner's receipt of notice thereof from Merchant. Partner may post as many Links to the Required URLs as it wishes on the Partner's Site. The position, prominence and nature of the Links on the Partner's Site must comply with any requirements specified in the Engagement, but otherwise will be in the discretion of Partner. All Links that Partner uses in the Program will beprovided to Partner from the LinkShare Network (tm) servers.
2.2. Partner may not make any representations, warranties, or other statements concerning Merchant, the Merchant Site, any of Merchant's products or services, or the Merchant Site policies, except as expressly authorized under the terms of the Engagement.
2.3. Partner is responsible for notifying Merchant and The LinkShare Network(tm) of any malfunctioning of the Required URLs or other problems with Partner's participation in the Engagement. Merchant will respond promptly to all concerns upon notification by Partner.
3. Commissions
3.1. Merchant will pay Partner the commission specified in the Engagement (the "Partner Revenue Share") if Merchant sells to a visitor to the Merchant Site (a "Customer") a product or service that is the subject of the Engagement and if that Customer accessed the Merchant Site and purchased the product or service via a Qualifying Link. The Partner Revenue Share will not include any refunds, charge backs, bad debt, taxes, or shipping and handling costs. In no event will Partner receive any compensation for purchases made on the Merchant Site that do not originate directly (in each instance) through a Qualifying Link. In no event will Partner receive any compensation for purchases made on the Merchant Site that are rejected by Merchant for reasons including, without limitation, fraud, cancellation, or non-compliance with any reasonable requirements established by Merchant as a condition of sale. Merchant will pay commissions on merchandise purchases (excluding gift cards and gift certificates),. less taxes, shipping and handling.) that are shipped to residents of, and addresses within, the United States.
3.2. A "Qualifying Link" is a link from the Partner Site to the Merchant Site using one of the Required URLs or any other URL provided by Merchant for use in The LinkShare Network(tm) if it is the last link to the Merchant Site that the Customer uses during a Session where a sale of a product or a service to Customer occurs. A "Session" is the period of time beginning with a Customer's initial contact with the Merchant Site via a link from the Partner Site and terminating when the Customer either returns to the Merchant Site via a link from a site other than the Partner Site or the Engagement expires or is terminated.
3.3. Merchant will have the sole right and responsibility to process all orders made by Customers. Partner acknowledges that all agreements relating to sales to Customers will be between Merchant and the applicable Customer.
3.4. All determinations of Qualifying Links and whether a commission is payable will be made by The LinkShare Network(tm) and will be final and binding on both Merchant and Partner. Prices for the products and services sold on the Merchant Site will be set by Merchant in its sole discretion.
4. Ownership and Licenses
4.1. Foot Petals owns and will retain all rights, title, and interest in its names, logos, trademarks, service marks, trade dress, copyrights, and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.
4.2. Merchant grants Partner a revocable, non-exclusive, US license to use, reproduce, and transmit Merchant's names, logos, trademarks, service marks, trade dress, and proprietary technology (the "Merchant Intellectual Property"), as designated in the Engagement or during the enrollment process in The LinkShare Network(tm), on the Partner Site solely for the purpose of creating links from the Partner Site to the Merchant Site during Engagements. Except as expressly set forth in this Agreement or permitted by applicable law, Partner may not copy, distribute, modify, reverse engineer, or create derivative works from the Merchant Intellectual Property. Partner may not sublicense, assign, or transfer any such licenses, and any attempt at such sublicense, assignment, or transfer is void. Partner will not, without prior written authorization from Merchant, (i) display any Web pages of the Merchant Site except as otherwise provided in this Agreement; (ii) cache, store or copy any portion of the Merchant Site; (iii) modify or alter any pages of the Merchant Site, including, without limitation, by removing any proprietary rights notices on the Merchant Site; (iv) frame any portion of the Merchant Site in conjunction with any materials that violate or infringe any right of any third party or in conjunction with any materials which Merchant, in its sole discretion, deems objectionable.
4.3. Upon Merchant's request, Partner must immediately remove from the Partner Site any Link to the Merchant Site which is displayed on a page that Merchant, in its sole discretion, deems objectionable.
4.4. Partner may not, without obtaining Merchant's prior written consent, use any domain name on the Partner Site to redirect users of the Partner Site directly to the Merchant Site.
4.5. Partner may not use the Footpetals.com or Foot Petals LLC names, or any variation thereof, in any manner not expressly authorized under this Agreement, including, without limitation, the following: Partner may not post Footpetals.com sales or promotions on the Partner Site without Merchant's prior written consent; Partner may not use the Footpetals.com or Foot Petals LLC names or trademarks, or any variation thereof, including, without limitation, names that are misspellings of the Foot Petals name, in metatags, in hidden text or source code, in e-mails or newsletters, in searchable keywords, in Partner’s ad copy, or in Partner's domain or sub-domain or any other part of Partner’s URL; Partner may not engineer the Partner Site in a manner that pulls Internet traffic away from the Footpetals.com Site; Partner may not engineer the Partner Site in a manner that would be considered keyword stuffing, such as using terms in hidden or live text that is meant to attract search engine spiders in order to determine higher relevancy to Footpetals.com; Partner may not use redirect URLs (ads that contain display URL that automatically redirect to the Merchant Site), Bridge pages (ads for webpages that act as an intermediary, whose sole purpose is to link or redirect traffic to the Merchant Site), or framing or wrapping (ads for webpages that replicate the look and feel of the Footpetals.com site); Partner may not launch the Merchant Site directly from search engine listings or from the Partner Site unless the visitor clicks through a Foot Petals banner, logo or product; Partner may not bid on any keyword or keyword strings on any Pay per Click Search Engines that is or includes one of Foot Petal’s trademarks or a derivation of a trademark, or any other word or term that is likely to cause confusion regarding its affiliation with Footpetals.com or Foot Petals LLC. Some examples of these keywords include, but are not limited to: Foot Petals, Footpetals.com, Foot Petals cushions, Foot Petals store. Violation of any of the foregoing prohibitions may result in, among other things, the immediate termination of this Agreement and the commencement of an action by Merchant against Partner seeking, without limitation, injunctive relief and/or recovery of actually, statutory and punitive damages.
5. Termination
5.1. Either Party may terminate any Engagement at any time by deleting its acceptance of the Engagement through The LinkShare Network(tm). Termination of an Engagement will not terminate this Agreement or any other Engagement.
5.2. Either Party may terminate this Agreement at any time, for any reason, provided that, except as set forth in Section 4.5 of this Agreement, such Party provides at least five days' prior written notice of such termination to the other Party and to The LinkShare Network(tm). Termination of this Agreement will also terminate any outstanding Engagements. However, all rights to payment, causes of action and any provisions which by their terms are intended to survive termination, will survive termination of this Agreement.
6. Representations
6.1. Each Party represents to the other that (a) it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby, and (b) any material which is provided to the other party and displayed on the other Party's site will not (i) infringe on any third party's copyright, patent, trademark, trade secret, or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance, or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic, or obscene; (v) violate any laws regarding unfair competition, anti-discrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, cancelbots, or other similar harmful or deleterious programming routines.
6.2. 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.
7. Cross-Indemnification
7.1. Each Party agrees to indemnify, defend, and hold harmless the other Party and its affiliates, directors, officers, employees, and agents, from and against any and all liability, claims, losses, damages, injuries, or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.
8. Indemnification of LinkShare
8.1. Merchant and Partner each agrees to indemnify, defend, and hold harmless The LinkShare Network(tm) and LinkShare Corporation and its affiliates, officers, directors, employees, and agents (collectively, "LinkShare") from and against any and all liability, claims, losses, damages, injuries, or expenses (including reasonable attorneys' fees) directly or indirectly arising from or relating to any Offer, Engagement, any other matter related to this Agreement or the subject matter hereof including any dispute relating thereto.
9. Limitation of Liability
9.1. In no event will either Party be liable to the other Party for any direct, indirect, special, exemplary, consequential, or incidental damages arising from or in connection with this Agreement, even if informed of the possibility of such damages. In no event will the Aggregate Liability of Merchant exceed the total undisputed commissions due and owing Partner hereunder.
9.2. The Parties agree that The LinkShare Network(tm) and LinkShare Corporation and its affiliates, officers, directors, employees, and agents will not be liable to either Party for any direct, indirect, special, exemplary, consequential, or incidental damages, even if informed of the possibility of such damages.
10. General
10.1. Each Party will act as an independent contractor and will have no authority to obligate or bind the other in any respect.
10.2. The Parties agree that The LinkShare Network(tm) and LinkShare Corporation are intended third party beneficiaries under this Agreement.
10.3. This Agreement has been made in and will be construed and enforced in accordance with the laws of the state of Ohio. Any action to enforce this Agreement will be brought in the federal or state courts located in that state. Official correspondence must be sent to Merchant via registered mail to Merchant's headquarters, to the attention of Merchant's legal department.
10.4. This Agreement may be agreed to in more than one counterparts, each of which together will form one and the same instrument. The Parties agree that execution may be achieved in any format convenient to the Parties.
10.5. The provisions of this Agreement are independent of and separable from each other, and no provision will be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
In Witness whereof, the Parties' authorized representatives have executed this Master Agreement as of the date of the last signature set forth below.
FOOT PETALS LLC
By: _____________________________
Its: ______________________________
Date: ____________________________
PARTNER
By: _____________________________
Its: ______________________________
Date: ____________________________
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Affiliate Agreement
