- • TORRID will permit the Publisher to participate in the Program, subject to compliance with this Agreement.
- • The Publisher may engage Sub-Publishers to distribute Offers in accordance with the Program, provided that:
- – the Publisher has written approval from a TORRID representative to contract Sub-Publishers; and
- – a verifiable name, address and telephone number for each Sub-Publisher is delivered to TORRID immediately upon request.
- • Any breach by a Sub-Publisher of this Agreement or any Offer restrictions will be deemed a breach of this Agreement by the Publisher.
- • Publisher has no authority to create or assume in TORRID’s name or on its behalf any obligation, express or implied, or to act or purport to act as its agent or representative for any purpose whatsoever and the Publisher shall not hold itself out as having any such authority.
- • TORRID’s policies, specifications, and/or recommendations with respect to Publisher websites, email, suppression, compliance notices, email distribution lists and/or marketing channels used by the Publisher should not be construed as legal advice, or as sufficient guidelines to ensure that such websites, email, suppression, compliance notices, email distribution lists and/or marketing channels comply with applicable law. TORRID does not represent or warrant that such specifications, and/or recommendations are legally compliant or appropriate. TORRID assumes no obligation and hereby disclaims any liability for Publisher’s use of and/or reliance upon any such policies, specifications, and/or recommendations.
- • Publisher will be solely responsible for the development, operation, and maintenance of the Publisher website and for all materials that appear on the Publisher website. Such responsibilities include, but are not limited to, the technical operation of the Publisher website and all related equipment; creating and posting product reviews, descriptions, and references on the Publisher website; the accuracy and propriety of materials posted on the Publisher website; ensuring that materials posted on the Publisher website do not violate or infringe upon the rights of any third party; and are not libelous or otherwise illegal. TORRID disclaims all liability and responsibility for such matters.
OFFER AND PLACEMENT
- • TORRID grants the Publisher a limited, non-exclusive, non-transferable, revocable right to download Offers from the Program Site and to display, transmit, distribute or publish the same as is necessary to perform this Agreement. The Publisher agrees not to modify, alter, misrepresent or embellish the Offer or the Advertising Materials or any part thereof in any way, directly or indirectly. Unless authorized in writing by TORRID, the Publisher shall not broker, syndicate, transfer, sublease, rent, lease, sell, resell, outsource or service any Offer, and any attempt to do so shall be null and void. Publisher shall not alter, copy, modify, take, sell, re-use, or divulge in any manner any Advertising Material or computer code provided by TORRID without TORRID’s prior written consent. Any part of the Offer, including but not limited to the Advertising Material, which is copied, changed or altered without TORRID’s prior written consent will result in non-payment and may result in termination. This license gives the Publisher no independent right to use TORRID’s trademarks, service marks, names, logo or other intellectual property. Any breach of this license shall constitute a material breach of this Agreement. TORRID reserves any rights not explicitly granted in this Agreement.
- • It is the Publisher’s responsibility to check the Program Site often and to ensure the Offer or any part of the Offer that the Publisher has published matches what is posted on the Program Site, even if the Offer or any part of the Offer has been modified in the Program Site since the Publisher initially downloaded the Offer.
- • Where TORRID has set specified dates for an Offer and/or capped delivery, Publisher shall pause each Campaign after either limitation is met. The Publisher is solely responsible for ensuring delivery and performance as specified in each Offer.
- • Awin will pay to the Publisher a commission (the “Commission”), calculated in accordance with the payment terms outlined in each Offer posted by TORRID on the Program Site. All payments will be made in US funds. Receipt of Commissions by Publisher shall be considered in full and final satisfaction for Campaigns delivered by Publisher.
- • Commissioned sales are for business-to-consumer users only. US/Canadian Publishers may not engage in, endorse or receive commission credit for suspected or known freight forwarding or reselling activities. Any order(s) with same SKU quantities of 50 or more are considered bulk orders and do not qualify for commission or cash back. TORRID does not pay Commissions on gift cards, gift packaging, or direct donations and reserves the right to reverse Commissions earned from the purchase of said gift cards, gift packaging, or donation SKUs. This does not include items that are purchased with a gift card. Any Publisher, influencer or media site (a) working with TORRID directly (which shall include but not be limited to receiving free product and/or payment directly from TORRID) and (b) not part of the Awin affiliate program will not be permitted to utilize affiliate links for any content published as part of the agreement in relation to that product or campaign unless express written consent is provided by the TORRID affiliate program management team. Haute Cash and other unapproved (non-affiliate) codes are not commissionable. Transactions using unapproved codes will have their associated Commissions reversed.
- • If Publisher does not dispute the amount of Commissions within sixty (60) days of rejection, such Commissions shall be deemed final and may not thereafter be disputed.
- • TORRID reserves the right to reconcile or adjust the value on any transaction that is attributed to another marketing channel.
- • TORRID reserves the absolute right to withhold all or some of the amounts due to Publisher in the event TORRID determines, in its sole discretion, that Publisher is in violation of this Agreement, for traffic generated by fraudulent means and/ or to offset any past due liability to TORRID.
COVENANTS, REPRESENTATIONS AND WARRANTIES
- • The Publisher represents, covenants and warrants to TORRID that:
- – none of the Publisher’s websites contain false or deceptive advertising or any machine-readable code including without limitation any virus, Trojan horse, work or other self-executing program;
- – the Publisher and the Publisher websites comply with all laws applicable and regulations;
- – it owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on or through its website or websites and in its email;
- – it has the authority to bind its Sub-Publishers to the terms hereof and shall be liable for any breach of this Agreement by its Sub-Publishers;
- – IF THE PUBLISHER IS AN INDIVIDUAL, THAT THE PUBLISHER WAS AT LEAST 18 YEARS OF AGE ON THE DAY THE PUBLISHER AGREED TO THIS AGREEMENT;
- – it will, at all times, comply with the terms of this Agreement, as updated, amended and replaced by TORRID, from time to time, in its sole discretion;
- – it will not, without the express written consent of TORRID, use or permit its Sub-Publishers or any person for who it is in law responsible to use any third-party trade-names or trade-marks;
- – it will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective any tags, source codes, links, pixels, modules or other data provided by or obtained from TORRID or Awin;
- – it will not “frame” or “mirror” any part of any pages hosted by the TORRID unless expressly permitted by TORRID;
- – it will not alter any website or email content provided by TORRID; and
- – it will provide TORRID with written confirmation of a valid address, telephone number, electronic mail address and such other identifying or financial information as TORRID may reasonably require.
- • Indemnification by Publisher. The Publisher covenants and agrees to defend, indemnify and hold harmless TORRID, its parent company, affiliated companies, payment processors, service providers and their respective shareholders, directors, officers, and employees (collectively, the “TORRID Indemnified Group”) from and against any and all claims, suits, demands, damages, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys’ fees) incurred directly or indirectly as a result of
- – Publisher’s breach of or non-compliance with this Agreement;
- – Publisher’s violation of any law;
- – any consumer, ISP provider, internet service provider or any governmental/regulatory complaint arising out of any email Campaign conducted by Publisher;
- • Publisher’s acts or omissions in using, displaying or distributing any internet links obtained from the Program Site or elsewhere, including but not limited to Publisher’s use of internet links via email distribution, (each (i)-(iv) individually is referred to hereinafter as a “Claim”), whether or not the TORRID Indemnified Group or any of them are named as a party defendant in any such proceedings.
- • Should any Claim give rise to a duty of indemnification under this Section 8, TORRID shall notify Publisher, and TORRID shall be entitled, at its own expense, and upon reasonable notice to Publisher, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Publisher’s obligations to indemnify or hold TORRID harmless. Publisher shall not settle any Claim without TORRID’s prior written consent. Publisher also shall indemnify for any reasonable attorneys’ fees or other costs incurred by any of the TORRID Indemnified Group in investigating or enforcing this Section 8. The obligation of the Publisher to defend and indemnify as set out in this paragraph will survive termination of this Agreement for any reason and will not be otherwise limited by any other term or condition of this Agreement or any agreement between Publisher and TORRID.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TORRID DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO ANY MATTER, WHETHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION (A) ANY WARRANTY OF PROFITABILITY, SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT TORRID’S SECURITY METHODS WILL BE SUFFICIENT, AND (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY. UNDER NO CIRCUMSTANCES IS TORRID RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY PUBLISHER OR SUB-PUBLISHER OR ITS WEBSITE(S).
LIMITATION OF LIABILITY
ANY OBLIGATION OR LIABILITY OF TORRID UNDER THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF (1) THE TOTAL OF PUBLISHER’S COMMISSIONS PAID TO PUBLISHER UNDER THIS AGREEMENT WITH TORRID DURING THE YEAR PRECEDING THE CLAIM; OR (2) ONE THOUSAND ($1,000.00) US DOLLARS. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. IN NO CIRCUMSTANCE WILL TORRID BE LIABLE TO THE PUBLISHER OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH PUBLISHER’S MARKETING EFFORTS) FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS OF THE PUBLISHER OR THE PUBLISHER’S SUCCESSORS OR ASSIGNS.
- • TORRID may immediately terminate this Agreement at any time.
- • Notwithstanding termination of this Agreement for any reason, the Publisher covenants and agrees that it will continue to be bound by the terms and conditions herein to the extent that such obligations by their nature should survive termination of this Agreement.
- • The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California, excluding its conflict of law rules. TORRID and Publisher each agree to the exclusive jurisdiction of the courts located in Los Angeles County, California with respect to any dispute arising as a direct or indirect consequence of this Agreement.
- • TORRID may assign this Agreement without the Publisher’s prior consent. Publisher may not assign this Agreement without the express written consent of TORRID.
- • From time to time, TORRID may amend, supplement or replace this Agreement in part or in whole, by posting on the Awin site. If within seven (7) business days following Notice of such amendment, supplement or replacement the Publisher has not terminated this Agreement, the Publisher will be deemed to have consented to the same.
- • Any notice or other communication (“Notice”) permitted or required by this Agreement will be in writing and given by email as follows:
- – to TORRID, to the account representative assigned to Publisher; or
- – to Publisher, at the email address provided to TORRID by the Publisher in its Program account. Any such Notice will be deemed to have been received on the date on which it was transmitted by email.
- • No term or condition of this Agreement will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is in writing and signed by both TORRID and Publisher.
- • In the event that any term, covenant or condition of this Agreement is declared indefinite, invalid, illegal or unenforceable by a court having jurisdiction, then this Agreement with respect to the remaining terms, covenants or conditions will continue in force.
- • This Agreement will inure to the benefit of and be binding upon the respective successors, heirs and assigns of both TORRID and the Publisher.
- • This Agreement constitutes the entire agreement between Publisher and TORRID with respect to the subject matter of this agreement, supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written.
- • Force Majeure. Neither Party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to pandemics, electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
- • By doing business with TORRID the Publisher agrees to be bound by the terms of this Agreement.