Western Chief
Program Terms
Western Chief Affiliate Program Terms and Conditions
This Affiliate Program Terms and Conditions (the “Agreement”) contains
the complete terms and conditions that apply to an individual or
entity’s participation in the Western Chief Affiliate Program (the
”Program”). As used in this Agreement, “Western Chief” “we” or “our” means
Western Chief and ”you” means the applicant. “Site” means a
World Wide Web site and, depending on the context, refers either to a
place where you store your content or a site owned by Western Chief
located at the URL www.westernchief.com, or located at
the URL www.westernchief.com. “Products” mean items or owned and
produced by Western Chief for Western Chief customers.
1. Enrollment in the Program
To begin the enrollment process, you will submit a complete Affiliate
Program Application. 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 (at our sole discretion) that your
site is unsuitable for the Program. Unsuitable sites may include, but
are not limited to, sites that:
* contain content that is not appropriate or is unrelated to the Western Chief
audience;
* are primarily a link or banner farm that contains little to no
original content;
* promote sexually explicit materials, discrimination, racism, illegal
activities, violence, are threatening, defamatory, obscene, harassing
or discriminatory, violate or infringe the rights of any third party
(including intellectual property, name and likeness and
privacy/publicity rights), advertise alcohol, tobacco, firearms, or
endorse any religious or political cause or candidate
* do not maintain a reasonable standard of performance and quality
By participating in the Program you agree that you will not engage in
any such activities. If we reject your application, you are welcome to
re-apply to the Program at any time. You should also note that if we
accept your application and your site is thereafter determined (in our
sole discretion) to be unsuitable for the Program, we may terminate
this Agreement without notice.
2. Use of Affiliate Tracking Links
* Once you have been notified that your site has been accepted into the
Program, you may only use tracking links made available to you through
our Program on the ShareASale Affiliate Network. Links to our site placed
on your site pursuant to this Agreement and which properly utilize
such tracking link formats are referred to as “Tracking Link(s)”. As
part of our Program, Western Chief will allow you to use its trademark and
domain name only on your Site by way of a Tracking Link made available
to you through the ShareASale Affiliate Network.
* We will not be liable to you with respect to any failure by you to
use Tracking Links, including to the extent that such failure may
result in any reduction of amounts that would otherwise be paid to you
pursuant to this Agreement.
* You acknowledge that, by participating in the Program and placing any
of the Tracking Links within your site, we may receive information
from or about visitors to your site. Your participation in the Western Chief
program constitutes your specific and unconditional consent and
authorization for Western Chief to access, receipt, storage, use, and
disclosure of any and all such information, consistent with the
policies and procedures set forth in the Western Chief Privacy Policy.
* You acknowledge and agree that you will use Tracking Links (in the
form of “Advertising Materials” like banners, text links, or other
advertising units) only in a lawful manner and only in accordance with
the terms of this Agreement. You also agree that you will:
* not post or serve any advertisements or promotional content around or
in conjunction with the display of our site (e.g., through any
“framing” technique or technology or pop-up windows), or assist,
authorize, or encourage any third party to take any such action
* not attempt to intercept or re-direct (including, without limitation,
via user-installed software) traffic from or on, or divert referral
fees from, any Website that participates in the Program
* not initiate orders on anything other than an affirmative consumer
action in the form of a click including invisible methods like forced
clicks, re-directs, pop-ups, pop-unders, or client-side downloadable
software
* not modify or alter any Advertising Materials that consist of a
graphic image, other than to resize it; or edit any Advertising
Materials that consists of text links, other than to shorten their
length
* not use any Advertising Materials in a manner intended to send sales
to any site other than the Western Chief Website
* within 48 hours delete any Advertising Material that we notify you is
no longer available for your use
* not directly or indirectly offer any person or entity any
consideration or incentive (including, without limitation, payment of
money, including any rebates, or granting of any discount or other
benefit) for using Tracking Links on your site to access our site
(e.g., by implementing any “rewards” program for persons or entities
who use Tracking links on your site to access our site) without
express written agreement from Western Chief
* not read, intercept, record, redirect, interpret, or fill in the
contents of any electronic form or other materials submitted to our
site by any person or entity
* in no way capture in any personal identifying information (“PII”) of
Western Chief customers, including but not limited to a person’s
name, address, telephone number, email address, age, social security
number, credit card or debit card number, driver’s license or any
other information that is personal or is likely to enable
identification of a specific individual. If PII has been, or may have
been, acquired or accessed by an unauthorized person, you shall notify
Western Chief immediately. Such notice shall include specifics
regarding the type of PII at issue, the names of the affected
individuals, the persons or entities who have or may have acquired the
PII and related details
* not in any way modify, redirect, suppress, or substitute the
operation of any button, link, or other interactive feature of our
site
* not take any action that could reasonably cause any customer
confusion as to our relationship with you
* not attempt to circumvent the referral fee schedule or artificially
increase your referral fees (e.g., by intentionally featuring,
purchasing or requesting or encouraging any third party to register
user accounts on our site for the purpose of exceeding any referral
fee threshold)
If we determine, at our sole discretion, that you have engaged in any
of the foregoing activities, we may without limiting any other rights
or remedies available to us within this Agreement withhold any
referral fees otherwise payable to you under this Agreement and/or
terminate this Agreement.
3. Domain, Trademark Usage & PPC Policy
Trademarked terms include, but are not limited to: Western Chief,
WesternChief, and westernchief.com.
You may only use Western Chief logos made available to you through
the Program. You may resize the Western Chief logo, so long as
the proportions remain intact.
Our pay per click (PPC) policy is as follows:
* you may not bid on any of our trademarked terms, including any
variations, misspellings or in conjunction with another keyword
* you may use our trademarked terms in your ad copy, however you may
not use our trademark as your display URL in any paid advertisement
* you may not direct link to any Western Chief site from a paid
advertisement
* Use of our trademarked terms as part of the domain or sub-domain of
your site is strictly prohibited. Use of our trademarked terms is also
not allowed in any print advertisements without prior written consent.
If we determine, in our sole discretion, that you have engaged in any
of these activities, we may without limiting any other rights or
remedies available to us within this Agreement withhold any referral
fees otherwise payable to you under this Agreement and/or terminate
this Agreement.
4. Coupons and Promotional Codes
You agree not to utilize, advertise or otherwise promote any Western Chief
promotional code or coupon not specifically made available to you
through the Program. This means that coupon codes and promotions
advertised in any other marketing campaign besides through our
Program cannot be advertised without prior written consent. In
addition, if you allow user submitted coupons on any of your Sites,
you are responsible for ensuring that the coupon code submitted abides
by our policy.
As referred to in our pay-per-click policy, you may not bid on our
trademarked terms in conjunction with another keyword. This means,
bidding on keywords such as “Western Chief coupon” or “Western Chief
discount” or “Western Chief coupon” is strictly prohibited.
You may, however, bid on product keywords and use the Western Chief
trademark terms in your ad copy.
5. Email Marketing and Social Media Usage
You may use the Western Chief logo and promotional copy when sending an email
campaign to users that have opted in to your mailing list only. You
may not promote Western Chief or Western Chief by use of Tracking
Link in any other mailing list other than one owned by you and must
not imply that any e-mail campaign is being sent by or sponsored by
Western Chief without prior written consent.
You may not distribute Advertising Materials using distribution methods
that are illegal or prohibited under the CAN-SPAM Act of 2003 (Public
Law No. 108-187).
You may promote Western Chief on your personal page or a business page/group
that you manage by way of Tracking Link via social media outlets such
as Facebook, Twitter, etc. so long as the content complies with our
program terms. You may not promote Western Chief on any other social media
Web site, or forum, that is not owned or managed by you.
6. Responsibility for Your Site and Content
You will be solely responsible for the development, operation, and
maintenance of your site, your social media profile, and for all
content that you create. For example, you will be solely responsible
for:
* the technical operation of your site and social media accounts
* creating and posting brand or product links
* the accuracy and appropriateness of materials posted on your site
(including, among other things, all Product-related materials)
* ensuring that materials posted on your content does 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 you post are not libelous or otherwise illegal
* ensuring that your content accurately and adequately discloses either
through a privacy policy or otherwise, how you collect, use, store,
and disclose data collected from visitors, including, where
applicable, that third parties (including advertisers) may serve
content and/or advertisements and collect information directly from
visitors and may place or recognize cookies on visitors’ browsers.
* to comply with FTC regulations, you must also ensure that you include
a disclosure statement on any page of your Web site that includes an
endorsement or review of Western Chief Products. Your disclosure statement
should clearly state that you are being compensated for your review or
endorsement. Furthermore, you must also ensure that all reviews or
endorsements posted on your Web site are authentic and have not been
falsified.
We disclaim all liability for these matters. Further, you agree to
indemnify, defend, and hold us harmless from all claims, damages, and
expenses (including, without limitation all attorneys’ fees) relating
to such matters and to the development, operation, maintenance, and
content of your site.
7. Referral Fees
Payment of referral Fees, more commonly known as commissions, will be
determined and controlled by the accepted offer on ShareASale at the time
of the transaction. For specific details including payment schedule on
the Western Chief Advertiser page.
8. Limited License
(a) We grant you a non-exclusive, non-transferable, revocable license
to use the graphic image and text described in Section 3 and such
other Content for which we grant express permission, solely for the
purpose of identifying your site as a Program participant and to
assist in generating Product sales. You may not modify the graphic
image or text, or any other of our images, in any way excepted as
expressly allowed within this agreement. We reserve all rights in the
graphic image and text, all other Content, our trade names and
trademarks, and all other intellectual property rights. You agree to
follow our Trademark Guidelines.
(b) Subject to the limited licenses granted to you under Section 8(a),
each party owns and shall retain all right, title and interest in its
trade names, logos, trademarks, service marks, trade dress, Internet
domain names, copyrights, patents, trade secrets, knowhow and
proprietary technology, including, without limitation, those trade
names, logos, trademarks, service marks, trade dress, copyrights,
patents, testimonials, endorsements, know how, trade secrets and
proprietary technology currently used or which may be developed and/or
used by it in the future “Intellectual Property”). Except as provided
in this Agreement, neither party may distribute, sell, reproduce,
publish, display, perform, prepare derivative works or otherwise use
any of the Intellectual Property of the other party without the
express written consent of such party. All data that we collect while
performing our obligations under this Agreement shall be deemed our
property.
9. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your
Program application and will end when terminated by either party.
Either party may terminate this Agreement at any time, with or without
cause, by giving the other party written notice of termination. Upon
termination of this Agreement for any reason, you will immediately
cease use of, and remove from your site, all links to our site, and
all Western Chief trademarks, trade dress, and logos, and all
other Advertising Materials and content provided to you, by or on
behalf of us, pursuant hereto or in connection with the Program.
Referral fees earned prior to the date of termination will remain
payable only if the related orders are not canceled or returned. We
may withhold your final payment for a reasonable time to ensure that
the correct amount is paid.
10. 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 the ShareASale Affiliate Network.
Modifications may include, for example, changes in the scope of
available referral fees, referral fee schedules, payment procedures,
and Program rules. 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.
11. Limitation of Liability and Indemnification
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 your participation within the Program, even if we
have been advised of the possibility of such damages. Affiliate will
defend (at its expense), indemnify and hold harmless Western Chief and each
of its parents, investors, subsidiaries, and affiliates and each of
their respective officers, directors, agents and employees, from and
against any and all third party claims, actions, damages, liabilities,
losses, costs and expenses (including reasonable legal expenses and
counsel fees) arising out of or in connection with (a) any breach or
alleged breach of any law or regulation by Affiliate, including but
not limited to all applicable privacy laws and intellectual property
laws; and (b) any breach or alleged breach by Affiliate of the ShareASale
Affiliate Network Online Program Terms and Conditions.
Affiliate shall reimburse Western Chief for any payments actually made by
Western Chief in resolution of any liability or claim that is subject to
indemnification under these paragraphs, provided that Western Chief obtains
Affiliate’s written consent prior to making any payment or settlement
of any such claim. Western Chief shall promptly notify Affiliate of any
claim for which it may seek indemnification, and Affiliate shall
assume control of the defense of such claim through legal counsel of
its choice. Western Chief may participate in the defense with counsel of its
choice at its own expense. Affiliate shall not enter into any
settlement of any liability or claim that requires Western Chief to take or
refrain from taking any actions (including without limitation
admitting guilt or criminal wrongdoing) without the consent of Western Chief.
which consent shall not be unreasonably withheld.
12. Waivers
The failure of either party to insist upon or enforce strict
performance by the other or to exercise any right under this Agreement
shall not be construed as a waiver or relinquishment to any extent of
such party’s right to assert or rely upon any such provision or right
in that or any other instance, and the same shall be and remain in
full force and effect.
13. Relationship of Parties
The relationship established by this Agreement between Western Chief and you
is that of 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. You may not issue any press releases with respect to this
Agreement or your participation in the Program; such action may result
in your termination from the Program.
14. Notice
Any notice, communication or statement relating to this Agreement shall
be in writing and deemed effective: (i) upon delivery via email; (ii)
upon transmission when delivered by verified facsimile transmission;
or (iii) when delivered by registered or certified mail, postage
prepaid, return receipt requested or by nationally-recognized
overnight courier service to the address of the respective parties as
follows: to Western Chief at the address listed on our web site; to you at
the address set forth in your Affiliate Program Application.
15. Arbitration
Any dispute relating in any way to this Agreement (including any actual
or alleged breach hereof), any transactions or activities under this
Agreement or your relationship with us or any of our affiliates shall
be submitted to confidential arbitration in Atlanta, Georgia, except
that, to the extent you have in any manner violated or threatened to
violate our intellectual property rights, we may seek injunctive or
other appropriate relief in any state or federal court in the state of
Georgia (and you consent to non- exclusive jurisdiction and venue in
such courts) or any other court of competent jurisdiction. Arbitration
under this agreement shall be conducted under the rules then
prevailing of the American Arbitration Association. The arbitrator’s
award shall be binding and may be entered as a judgment in any court
of competent jurisdiction. To the fullest extent permitted by
applicable law, no arbitration under this Agreement shall be joined to
an arbitration involving any other party subject to this Agreement,
whether through class arbitration proceedings or otherwise.
16. Entire Agreement
This Agreement sets forth the entire agreement and understanding of the
parties relating to the subject matter hereof, and merges all prior
discussions and writings between the parties with respect to the
contents of this Agreement.
This Affiliate Program Terms and Conditions (the “Agreement”) contains
the complete terms and conditions that apply to an individual or
entity’s participation in the Western Chief Affiliate Program (the
”Program”). As used in this Agreement, “Western Chief” “we” or “our” means
Western Chief and ”you” means the applicant. “Site” means a
World Wide Web site and, depending on the context, refers either to a
place where you store your content or a site owned by Western Chief
located at the URL www.westernchief.com, or located at
the URL www.westernchief.com. “Products” mean items or owned and
produced by Western Chief for Western Chief customers.
1. Enrollment in the Program
To begin the enrollment process, you will submit a complete Affiliate
Program Application. 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 (at our sole discretion) that your
site is unsuitable for the Program. Unsuitable sites may include, but
are not limited to, sites that:
* contain content that is not appropriate or is unrelated to the Western Chief
audience;
* are primarily a link or banner farm that contains little to no
original content;
* promote sexually explicit materials, discrimination, racism, illegal
activities, violence, are threatening, defamatory, obscene, harassing
or discriminatory, violate or infringe the rights of any third party
(including intellectual property, name and likeness and
privacy/publicity rights), advertise alcohol, tobacco, firearms, or
endorse any religious or political cause or candidate
* do not maintain a reasonable standard of performance and quality
By participating in the Program you agree that you will not engage in
any such activities. If we reject your application, you are welcome to
re-apply to the Program at any time. You should also note that if we
accept your application and your site is thereafter determined (in our
sole discretion) to be unsuitable for the Program, we may terminate
this Agreement without notice.
2. Use of Affiliate Tracking Links
* Once you have been notified that your site has been accepted into the
Program, you may only use tracking links made available to you through
our Program on the ShareASale Affiliate Network. Links to our site placed
on your site pursuant to this Agreement and which properly utilize
such tracking link formats are referred to as “Tracking Link(s)”. As
part of our Program, Western Chief will allow you to use its trademark and
domain name only on your Site by way of a Tracking Link made available
to you through the ShareASale Affiliate Network.
* We will not be liable to you with respect to any failure by you to
use Tracking Links, including to the extent that such failure may
result in any reduction of amounts that would otherwise be paid to you
pursuant to this Agreement.
* You acknowledge that, by participating in the Program and placing any
of the Tracking Links within your site, we may receive information
from or about visitors to your site. Your participation in the Western Chief
program constitutes your specific and unconditional consent and
authorization for Western Chief to access, receipt, storage, use, and
disclosure of any and all such information, consistent with the
policies and procedures set forth in the Western Chief Privacy Policy.
* You acknowledge and agree that you will use Tracking Links (in the
form of “Advertising Materials” like banners, text links, or other
advertising units) only in a lawful manner and only in accordance with
the terms of this Agreement. You also agree that you will:
* not post or serve any advertisements or promotional content around or
in conjunction with the display of our site (e.g., through any
“framing” technique or technology or pop-up windows), or assist,
authorize, or encourage any third party to take any such action
* not attempt to intercept or re-direct (including, without limitation,
via user-installed software) traffic from or on, or divert referral
fees from, any Website that participates in the Program
* not initiate orders on anything other than an affirmative consumer
action in the form of a click including invisible methods like forced
clicks, re-directs, pop-ups, pop-unders, or client-side downloadable
software
* not modify or alter any Advertising Materials that consist of a
graphic image, other than to resize it; or edit any Advertising
Materials that consists of text links, other than to shorten their
length
* not use any Advertising Materials in a manner intended to send sales
to any site other than the Western Chief Website
* within 48 hours delete any Advertising Material that we notify you is
no longer available for your use
* not directly or indirectly offer any person or entity any
consideration or incentive (including, without limitation, payment of
money, including any rebates, or granting of any discount or other
benefit) for using Tracking Links on your site to access our site
(e.g., by implementing any “rewards” program for persons or entities
who use Tracking links on your site to access our site) without
express written agreement from Western Chief
* not read, intercept, record, redirect, interpret, or fill in the
contents of any electronic form or other materials submitted to our
site by any person or entity
* in no way capture in any personal identifying information (“PII”) of
Western Chief customers, including but not limited to a person’s
name, address, telephone number, email address, age, social security
number, credit card or debit card number, driver’s license or any
other information that is personal or is likely to enable
identification of a specific individual. If PII has been, or may have
been, acquired or accessed by an unauthorized person, you shall notify
Western Chief immediately. Such notice shall include specifics
regarding the type of PII at issue, the names of the affected
individuals, the persons or entities who have or may have acquired the
PII and related details
* not in any way modify, redirect, suppress, or substitute the
operation of any button, link, or other interactive feature of our
site
* not take any action that could reasonably cause any customer
confusion as to our relationship with you
* not attempt to circumvent the referral fee schedule or artificially
increase your referral fees (e.g., by intentionally featuring,
purchasing or requesting or encouraging any third party to register
user accounts on our site for the purpose of exceeding any referral
fee threshold)
If we determine, at our sole discretion, that you have engaged in any
of the foregoing activities, we may without limiting any other rights
or remedies available to us within this Agreement withhold any
referral fees otherwise payable to you under this Agreement and/or
terminate this Agreement.
3. Domain, Trademark Usage & PPC Policy
Trademarked terms include, but are not limited to: Western Chief,
WesternChief, and westernchief.com.
You may only use Western Chief logos made available to you through
the Program. You may resize the Western Chief logo, so long as
the proportions remain intact.
Our pay per click (PPC) policy is as follows:
* you may not bid on any of our trademarked terms, including any
variations, misspellings or in conjunction with another keyword
* you may use our trademarked terms in your ad copy, however you may
not use our trademark as your display URL in any paid advertisement
* you may not direct link to any Western Chief site from a paid
advertisement
* Use of our trademarked terms as part of the domain or sub-domain of
your site is strictly prohibited. Use of our trademarked terms is also
not allowed in any print advertisements without prior written consent.
If we determine, in our sole discretion, that you have engaged in any
of these activities, we may without limiting any other rights or
remedies available to us within this Agreement withhold any referral
fees otherwise payable to you under this Agreement and/or terminate
this Agreement.
4. Coupons and Promotional Codes
You agree not to utilize, advertise or otherwise promote any Western Chief
promotional code or coupon not specifically made available to you
through the Program. This means that coupon codes and promotions
advertised in any other marketing campaign besides through our
Program cannot be advertised without prior written consent. In
addition, if you allow user submitted coupons on any of your Sites,
you are responsible for ensuring that the coupon code submitted abides
by our policy.
As referred to in our pay-per-click policy, you may not bid on our
trademarked terms in conjunction with another keyword. This means,
bidding on keywords such as “Western Chief coupon” or “Western Chief
discount” or “Western Chief coupon” is strictly prohibited.
You may, however, bid on product keywords and use the Western Chief
trademark terms in your ad copy.
5. Email Marketing and Social Media Usage
You may use the Western Chief logo and promotional copy when sending an email
campaign to users that have opted in to your mailing list only. You
may not promote Western Chief or Western Chief by use of Tracking
Link in any other mailing list other than one owned by you and must
not imply that any e-mail campaign is being sent by or sponsored by
Western Chief without prior written consent.
You may not distribute Advertising Materials using distribution methods
that are illegal or prohibited under the CAN-SPAM Act of 2003 (Public
Law No. 108-187).
You may promote Western Chief on your personal page or a business page/group
that you manage by way of Tracking Link via social media outlets such
as Facebook, Twitter, etc. so long as the content complies with our
program terms. You may not promote Western Chief on any other social media
Web site, or forum, that is not owned or managed by you.
6. Responsibility for Your Site and Content
You will be solely responsible for the development, operation, and
maintenance of your site, your social media profile, and for all
content that you create. For example, you will be solely responsible
for:
* the technical operation of your site and social media accounts
* creating and posting brand or product links
* the accuracy and appropriateness of materials posted on your site
(including, among other things, all Product-related materials)
* ensuring that materials posted on your content does 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 you post are not libelous or otherwise illegal
* ensuring that your content accurately and adequately discloses either
through a privacy policy or otherwise, how you collect, use, store,
and disclose data collected from visitors, including, where
applicable, that third parties (including advertisers) may serve
content and/or advertisements and collect information directly from
visitors and may place or recognize cookies on visitors’ browsers.
* to comply with FTC regulations, you must also ensure that you include
a disclosure statement on any page of your Web site that includes an
endorsement or review of Western Chief Products. Your disclosure statement
should clearly state that you are being compensated for your review or
endorsement. Furthermore, you must also ensure that all reviews or
endorsements posted on your Web site are authentic and have not been
falsified.
We disclaim all liability for these matters. Further, you agree to
indemnify, defend, and hold us harmless from all claims, damages, and
expenses (including, without limitation all attorneys’ fees) relating
to such matters and to the development, operation, maintenance, and
content of your site.
7. Referral Fees
Payment of referral Fees, more commonly known as commissions, will be
determined and controlled by the accepted offer on ShareASale at the time
of the transaction. For specific details including payment schedule on
the Western Chief Advertiser page.
8. Limited License
(a) We grant you a non-exclusive, non-transferable, revocable license
to use the graphic image and text described in Section 3 and such
other Content for which we grant express permission, solely for the
purpose of identifying your site as a Program participant and to
assist in generating Product sales. You may not modify the graphic
image or text, or any other of our images, in any way excepted as
expressly allowed within this agreement. We reserve all rights in the
graphic image and text, all other Content, our trade names and
trademarks, and all other intellectual property rights. You agree to
follow our Trademark Guidelines.
(b) Subject to the limited licenses granted to you under Section 8(a),
each party owns and shall retain all right, title and interest in its
trade names, logos, trademarks, service marks, trade dress, Internet
domain names, copyrights, patents, trade secrets, knowhow and
proprietary technology, including, without limitation, those trade
names, logos, trademarks, service marks, trade dress, copyrights,
patents, testimonials, endorsements, know how, trade secrets and
proprietary technology currently used or which may be developed and/or
used by it in the future “Intellectual Property”). Except as provided
in this Agreement, neither party may distribute, sell, reproduce,
publish, display, perform, prepare derivative works or otherwise use
any of the Intellectual Property of the other party without the
express written consent of such party. All data that we collect while
performing our obligations under this Agreement shall be deemed our
property.
9. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your
Program application and will end when terminated by either party.
Either party may terminate this Agreement at any time, with or without
cause, by giving the other party written notice of termination. Upon
termination of this Agreement for any reason, you will immediately
cease use of, and remove from your site, all links to our site, and
all Western Chief trademarks, trade dress, and logos, and all
other Advertising Materials and content provided to you, by or on
behalf of us, pursuant hereto or in connection with the Program.
Referral fees earned prior to the date of termination will remain
payable only if the related orders are not canceled or returned. We
may withhold your final payment for a reasonable time to ensure that
the correct amount is paid.
10. 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 the ShareASale Affiliate Network.
Modifications may include, for example, changes in the scope of
available referral fees, referral fee schedules, payment procedures,
and Program rules. 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.
11. Limitation of Liability and Indemnification
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 your participation within the Program, even if we
have been advised of the possibility of such damages. Affiliate will
defend (at its expense), indemnify and hold harmless Western Chief and each
of its parents, investors, subsidiaries, and affiliates and each of
their respective officers, directors, agents and employees, from and
against any and all third party claims, actions, damages, liabilities,
losses, costs and expenses (including reasonable legal expenses and
counsel fees) arising out of or in connection with (a) any breach or
alleged breach of any law or regulation by Affiliate, including but
not limited to all applicable privacy laws and intellectual property
laws; and (b) any breach or alleged breach by Affiliate of the ShareASale
Affiliate Network Online Program Terms and Conditions.
Affiliate shall reimburse Western Chief for any payments actually made by
Western Chief in resolution of any liability or claim that is subject to
indemnification under these paragraphs, provided that Western Chief obtains
Affiliate’s written consent prior to making any payment or settlement
of any such claim. Western Chief shall promptly notify Affiliate of any
claim for which it may seek indemnification, and Affiliate shall
assume control of the defense of such claim through legal counsel of
its choice. Western Chief may participate in the defense with counsel of its
choice at its own expense. Affiliate shall not enter into any
settlement of any liability or claim that requires Western Chief to take or
refrain from taking any actions (including without limitation
admitting guilt or criminal wrongdoing) without the consent of Western Chief.
which consent shall not be unreasonably withheld.
12. Waivers
The failure of either party to insist upon or enforce strict
performance by the other or to exercise any right under this Agreement
shall not be construed as a waiver or relinquishment to any extent of
such party’s right to assert or rely upon any such provision or right
in that or any other instance, and the same shall be and remain in
full force and effect.
13. Relationship of Parties
The relationship established by this Agreement between Western Chief and you
is that of 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. You may not issue any press releases with respect to this
Agreement or your participation in the Program; such action may result
in your termination from the Program.
14. Notice
Any notice, communication or statement relating to this Agreement shall
be in writing and deemed effective: (i) upon delivery via email; (ii)
upon transmission when delivered by verified facsimile transmission;
or (iii) when delivered by registered or certified mail, postage
prepaid, return receipt requested or by nationally-recognized
overnight courier service to the address of the respective parties as
follows: to Western Chief at the address listed on our web site; to you at
the address set forth in your Affiliate Program Application.
15. Arbitration
Any dispute relating in any way to this Agreement (including any actual
or alleged breach hereof), any transactions or activities under this
Agreement or your relationship with us or any of our affiliates shall
be submitted to confidential arbitration in Atlanta, Georgia, except
that, to the extent you have in any manner violated or threatened to
violate our intellectual property rights, we may seek injunctive or
other appropriate relief in any state or federal court in the state of
Georgia (and you consent to non- exclusive jurisdiction and venue in
such courts) or any other court of competent jurisdiction. Arbitration
under this agreement shall be conducted under the rules then
prevailing of the American Arbitration Association. The arbitrator’s
award shall be binding and may be entered as a judgment in any court
of competent jurisdiction. To the fullest extent permitted by
applicable law, no arbitration under this Agreement shall be joined to
an arbitration involving any other party subject to this Agreement,
whether through class arbitration proceedings or otherwise.
16. Entire Agreement
This Agreement sets forth the entire agreement and understanding of the
parties relating to the subject matter hereof, and merges all prior
discussions and writings between the parties with respect to the
contents of this Agreement.