PROCLAIM
Program Terms
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") for PROCLAIM ("we" "us" or "Merchant").
This Affiliate Program is administered through the ShareASale 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 RECEIVING AND USING
LINKS TO THE MERCHANT WEBSITE, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND THAT
YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN 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 ShareASale 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 any time. Only websites with general or
United States based domain name
extensions (e.g. .com, .net, .org, .us, etc.) and primarily serve a United States based audience are eligible for
participation in this Affiliate Program. 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 Share A Sale 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 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, and (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.
2. Suitability of Affiliate Websites. (a) Your 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 anytime 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:
(i) infringe on our or any other person's or entity's intellectual
property, publicity, privacy or other rights,
(ii) fail to state a clear online privacy policy to your visitors,
(iii) require a username or password to access your websites, without our prior written consent (including via
email),
(iv) violate any law, rule or regulation,
(v) contain any content that is threatening, harassing, defamatory,
obscene, harmful to minors, or contains
nudity, pornography or sexually explicit materials,
(vi) 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,
(vii) contain material that is materially false, inaccurate, fraudulent
or misleading or that promotes pyramid or
similar schemes;
(viii) promote violence or any illegal or immoral activity,
(ix) promote discrimination based upon gender, race, religion,
nationality, disability, sexual orientation or age,
(x) use or promote the use of bulk email or spam,
(xi) 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,
(xii) use any software that gathers information through the
customer's Internet connection without his or her
knowledge,
(xiii) 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.
(xiv) use a context based triggering mechanism to display an advertisement that partially or wholly covers or
obscures paid advertising or other content on an Internet website in a way that interferes with a user's ability to
view the Internet website, or use browser-embedded contextual targeting applications or other applications which
serve advertisements (pop-up ads and pop-unders, in-browser ads and highlighting of website content and
redirecting to websites with similar content, regardless of whether any
such advertisements are served directly
by you or is provided or purchased from a third-party) on Merchant's or Merchant's competitors websites or on
any other website other than your websites.
(b) You may not (i) engineer your websites in a manner designed to direct
or pull Internet traffic away from our
Merchant website, (ii) attempt to modify or alter our Merchant website
in any way; (iii) make any
representations, either express or implied, or create an appearance
that a visitor to your website is visiting our
website, e.g., "framing" the Merchant website, without our prior written approval; or (iv) "scrape" or "spider" any
Merchant website or any other website for Merchant Content (as defined below).
(c) You may not purchase products during sessions initiated through
Qualified Links on your websites for, resale,
or commercial use of any kind. Such purchases may result, in our sole discretion, in the withholding of the
Revenue Share or the termination of this Agreement.
(d) We have the right in our sole and absolute discretion to monitor
your websites at any time and from time to
time to determine if you are in compliance with the terms of this
Agreement, and you agree to provide us with
unrestricted access to your websites for such purposes.
3. Right to Use Merchant Content. (a) Subject to the terms and
conditions herein, we hereby grant to you,
during the term hereof, a limited, non-exclusive, non-transferable, revocable, non-sublicensable, non-assignable
right to (i) access the Merchant Website through Qualified Links
(defined below) provided by us from time to
time, and (ii) use and display the Merchant Content (as defined below)
that we may make available to you from
time to time solely as provided to you through the Share A Sale Network
and solely for the purpose of generating
the sale of Merchant's products from your website that we have approved
and solely in connection with your
participation in this Affiliate Program. Any attempt to sublicense,
assign or transfer this right is void. We may
terminate your rights to use the Merchant Content for any reason at any
time in our sole and absolute discretion.
(b) A "Qualifying Link" means a link from your website to our website
using one of the URLs or graphic links
provided by us (or through the ShareASale Network) for use in the Affiliate Program that allows Share A Sale to track
the use of such links by your visitors. All Qualifying Links that you will use in the Affiliate Program will be
provided to you from the ShareASale Network or by other means selected by
us, and only valid Qualifying Links
generated by the ShareASale Network or by us will be tracked for purposes
of determining Revenue Share that you
may be eligible to receive on sales of products generated through your website. Except for the right to use the
Merchant Content provided to you by us hereunder, we are not granting
you any rights in, and you represent,
warrant, covenant and agree that you will not use, in any manner, any trademarks, service marks, trade names,
logos, banners, buttons, graphics, digital images, text, or other content
or materials owned or controlled by us.
(c) Upon termination of this Agreement, for any reason, you shall
immediately cease using, displaying or
otherwise maintaining any interest in the Merchant Content. For
purposes of this Agreement "Merchant
Content" means any and all trademarks, service marks, trade names,
logos, banners, buttons, digital images,
graphics, text and other content and material which we may, in our sole discretion, make available to you in
connection with this Affiliate Program from time to time.
4. Special Offers.
(a) From time to time, we may post on the ShareASale Network special
offers ("Special Offers") to pay certain
members of the Affiliate Program, chosen at our sole discretion, a
specified referral fee on sales of certain
products. The terms of a Special Offer, as posted on the Share A Sale
Network or otherwise communicated to such
members, shall be governed by the terms and conditions of this Agreement. However, in the event of any
inconsistency between the terms of the Special Offer and the terms of
this Agreement, the terms of the Special Offer shall govern.
(b) 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.
4. Merchant Content Usage Restrictions. IF YOU FAIL TO COMPLY WITH
ANY OF THE RESTRICTIONS IN THIS
SECTION 5, AT OUR SOLE DISCRETION YOU 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 Share A Sale 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) Keyword Purchasing. You may not purchase or bid for the placement of
our name or trademarks within any third
party search engine or portal, however deep linking is permitted.
(i)Protected SEM Bidding Keywords
PROCLAIM, wearproclaim.com, PROCLAIM coupon, PROCLAIM discount, PROCLAIM discount code, PROCLAIM promo code, PROCLAIM coupon code, and any variations including misspellings, alternate spellings, alternate spacing, or any phrases that include these terms. Bidding on branded keywords plus generic terms such as coupons or promotional codes is also prohibited.
(c) Search Engine and Advertising Restrictions. You also agree to the following additional search engine
advertising rules: (i) all advertisements by you must be directed to your site or a page within your site, (ii) none
of your advertisements may link directly to the Merchant Website or any
page within the Merchant Website, (iii)
you will not show the Merchant Website URL as the URL in your ads, (iv)
you will not use the words "official site"
or words to similar effect in connection with any use of our trademarks,
or otherwise suggest or imply that your
site is an official Merchant site or partner, and (v) you will stop
bidding on any keyword term at our request.
(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.
(c) Promotion Codes & Coupons. You may not, without our prior written consent, utilize any promotion,
promotion code, coupon, or other promotional opportunity that is not specifically authorized for Merchant's
Affiliate Program and explicitly authorized for your use.
(d) Affiliates may not create affiliate tracking links that also contain a tracking link for our Referral Program. Affiliates are permitted to participate in either the Affiliate Program or the Referral Program but individual links must be specific and exclusive to one of the programs. By participating in this Affiliate Program, you agree not to claim commission or credit from both the Affiliate Program and from our Referral Program for the same transaction.
(e) Communications with Consumers. You may not, without our prior
written consent, (i) generate or send any
email messages or other "electronic messages" (as defined in the
Share A Sale Affiliate Membership Agreement, as
amended) 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
email or other "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 email communications or
newsletters or other "electronic messages" that we send our customers or members of the ShareASale 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 or any other applicable laws or regulations.
5. 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.
6. Operation and Maintenance of the Merchant Website. (a) You
acknowledge and agree that we will accept
or reject, in our sole and absolute discretion, all orders by customers
for merchandise placed on or through the
Merchant Website. You further acknowledge and agree that (i) you do not
have any authority to make or accept
any offer or commitment on behalf of us, (ii) we cannot, and do not, guarantee the availability of any
merchandise or other services offered for sale on the Merchant Website,
and (iii) we are solely responsible for all
pricing, merchandising, order processing, order fulfillment, shipping, returns and all other aspects of the
Merchant Website and the sale of merchandise thereunder. Customers who
access the Merchant Website will be
deemed our customers. Accordingly, all of our then applicable rules,
policies and procedures concerning orders,
returns, refunds, customer service, privacy and other terms of use and
sale will apply to such customers. As
between the parties, all information obtained through the use of the
Merchant Website shall be our exclusive property.
(c) We may change our policies and operating procedures at any time
in our sole discretion. For example, we will
determine the prices to be charged for products sold under the
Affiliate Program in accordance with our own
pricing policies. Product prices and availability may vary from time to
time. We will use commercially reasonable
efforts to present accurate information, but we cannot guarantee the availability or price of any particular product
or the error-free or uninterrupted operation of our website.
7. Revenue Share Payments. (a) During the term of this Agreement, we
agree to pay you a revenue share
(the "Revenue Share") equal to the applicable percentage of Net Revenue determined pursuant to the schedule
set forth in the Affiliate Program overview/description materials
posted on the Share A Sale Network or otherwise
provided by us. We reserve the right, at our sole discretion, to change, modify, add or remove portions of this
Revenue Share schedule at any time without notice. For purposes of this Agreement, "Net Revenue" means all
cash consideration (not including any portion of payment made through
the redemption of gift certificates,
coupons or credits) from merchandise sold in a transaction resulting
directly from a Qualifying Link tracked by P
Share A Sale from your website to the Merchant Website in accordance with
this Agreement, where the customer
purchases such merchandise, less all taxes, shipping and handling
charges, gift wrapping and other value-added
service charges, returns and chargebacks. You acknowledge and agree that
we will not be obligated to pay any
revenue share unless we actually ship the applicable order and receive
full payment for such an order. Additionally,
unless we otherwise agree, we will not be obligated to pay any revenue
share on any purchase from a customer
linking to our Merchant Website from your websites, unless such purchase
is made during the same on-line
session or within thirty (30) days after the customer has initially
entered our website ( "Revenue Share Time")
and the customer re-enters our website directly during that time (and
not through another affiliate link). After the
Revenue Share Time, we will not pay referral fees on any products that
are added to a customer's shopping cart
after the customer has re-entered our website (other than through a Qualifying Link from your website), even if
the customer previously followed a link from your website to our website.
We do not pay a revenue share on the
purchase of gift certificates or gift cards. All determinations of
Qualifying Links and whether a referral fee is
payable will be made by us and Share A Sale and will be final and
binding on you.
(b) Subject to the terms and conditions of this Agreement, we will pay
you the above-described Revenue Share
on a monthly basis. Payments will be sent through the Share A Sale Network
for the Revenue Share earned, less any
taxes or other amounts that we may be required by law to withhold. No interest will be paid on any such amount
held by us. If a Revenue Share payment is made hereunder and relates to merchandise that is later returned by
the customer, the applicable Revenue Share will be deducted from the next applicable payment hereunder. If any
portion of such Revenue Share cannot be recovered through a deduction, we will invoice you for such amount
and you agree to pay this amount within 30 days after receipt of such invoice. Upon termination of this
Agreement, we will send, or cause to be sent, the total amount of Revenue Share then owed to you as of the
termination date. The final Revenue Share payment may be withheld by us
for a reasonable period of time to
ensure that the correct amount is to be paid after making any adjustments that may be required, including, but
not limited to, adjustments for returns.
8. Share A Sale Tracking. (a) We will track sales made to customers who
purchase products using Qualified Links,
that you will generate using Share A Sale 's technology, from your website
to our website, and reports summarizing
sales activity will be available to you also through the ShareASale Network. The form, content, and frequency
of the reports are limited to those reports and capabilities available through the ShareASale Network and may vary
from time to time in our and Share A Sale 's reasonable discretion. We are not responsible for any changes that
Share A Sale may make in their reporting format, timing, or types of reports available to the members of our
Affiliate Program. To permit accurate tracking, reporting and fee accrual, you must ensure that the links between
your website and our website are properly formatted. We are not
responsible for improperly formatted links
regardless of whether you have made amendments to the code or not. In addition, we are unable to track or
provide you credit for sales from customers that are referred to us with browsers that do not have their cookies
setting enabled. You hereby agree not to disclose the such information contained in Share A Sale reports regarding
us to any third party without our prior written consent and that such information is the property and Confidential
Information of ours.
(b) You represent, warrant, covenant, and agree that (i) you are a member
of Share A Sale 's network affiliate
program, and (ii) you will not bypass, modify, circumvent, impair, disable
or otherwise interfere with any links,
web beacons, cookies or other technology provided by us or Share A Sale.
9. 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
Share A Sale with us or you,
(v) at all times during and after the term of this Agreement, you will protect all of our and Share A Sale '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 ShareASale's Confidential Information to
the extent necessary to perform your
obligations hereunder, and
(vii) you will not use or display any trademark, service mark, logo or
other content of PROCLAIM.
(viii) you will promptly notify us and Share A Sale 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.
(d) 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.
11. 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, PROCLAIM, our respective
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, or any content, technology or other
materials displayed or contained thereon, including but not limited to
with respect to claims of misappropriation
or infringement, (iii) your failure or alleged failure to comply with any applicable law, rule or regulation, (vi)
claims for unsolicited email, spamming or violation of the CAN-SPAM Act
of 2003, (vii) your misuse, unauthorized
modification or unauthorized use of the services or materials provided by
us or Share A Sale hereunder, or (viii)
any actual or alleged wrongful or negligent act or omission by you.
12. 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 at any time and for any reason
by providing notice (including via e-
mail) to the other party. We may also terminate this Agreement
immediately, without notice, if we determine, in
our sole discretion, that you have breached this Agreement or that your website(s) is unsuitable to participate in
this Affiliate Program. Either party may terminate a Special Offer at any time by deleting its acceptance through
the Share A Sale Network, and such termination of a Special Offer shall not
be deemed a termination of this
Agreement or any other Special Offers. Sections 3(c), 8(b), 10-20 and 23 (together with all other provisions that
may reasonably be interpreted as surviving termination or expiration of
this Agreement) will survive any
termination or expiration of 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.
(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.
13. Modification of Agreement. We reserve the right to modify this
Agreement, at any time in our sole
discretion, by posting a change of notice or a new agreement on the
Share A Sale Network, and, if applicable, on the
Merchant Website. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU AGREE
THAT YOUR SOLE RECOURSE
IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THE MERCHANT
CONTENT AND PARTICIPATION
IN THIS AFFILIATE PROGRAM FOLLOWING ANY MODIFICATION OF THIS AGREEMENT
SHALL CONSTITUTE
CONCLUSIVE AND BINDING ACCEPTANCE TO ANY MODIFICATION OR NEW AGREEMENT.
14. Warranty Disclaimer. WE MAKE NO WARRANTIES, REPRESENTATIONS, OR GUARANTEES, WITH REGARD
TO THE PRODUCTS OR SERVICES SOLD THROUGH THE MERCHANT WEBSITE, THE
OPERATION AND
MAINTENANCE OF THE MERCHANT WEBSITE OR THE Share A Sale NETWORK, WHETHER
EXPRESS OR IMPLIED,
ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR
ANY IMPLIED
WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE
OF TRADE. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO REPRESENTATION THAT
THE OPERATION OF THE MERCHANT WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE.
15. Limitation of Damages. NEITHER WE NOR PROCLAIM WILL HAVE ANY
LIABILITY (WHETHER IN CONTRACT,
WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), PRODUCT
LIABILITY OR OTHER THEORY)
FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES
OR ANY LOSS OF
REVENUE, DATA OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT
OR THE AFFILIATE
PROGRAM, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHER, OUR AGGREGATE
LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE
AFFILIATE PROGRAM WILL IN NO
EVENT EXCEED THE TOTAL REVENUE SHARE PAID OR PAYABLE BY US TO YOU UNDER
THIS AGREEMENT DURING
THE PRECEDING TWELVE (12) MONTH PERIOD PRIOR TO THE DATE SUCH LIABILITY AROSE. ALL CLAIMS MADE
HEREUNDER BY YOU AGAINST US SHALL BE MADE WITHIN 120 DAYS OF THE ACT OR OMISSION THAT FORMS
THE BASIS OF SUCH CLAIMS.
16. Independent Contractors. We, you, Share A Sale and PROCLAIM are each independent contractors and nothing
in this Agreement or in any Share A Sale affiliate program documents is
intended to or will create any form of
partnership, joint venture, agency, franchise, sales representative, or employment relationship.
17. Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws
of the Commonwealth of New York, excluding its conflict of laws principles. Any lawsuit relating to this Agreement
must be brought in the federal or state courts located in New York,
New York.
18. Press Release; Publicity. You agree that you will not issue any press release or make any other similar
public announcement that in any way makes any reference to us or PROCLAIM without our prior written consent,
which consent may be withheld in our sole discretion.
19. 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.
20. Headings. The titles and headings of the various sections and
paragraphs in this Agreement are intended
solely for 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.
21. 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.
22. 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.
23. Entire Agreement. This Agreement and the Revenue Share schedule represents the complete agreement
and understanding between us and you and supersedes any other oral or
written communications or
understanding between us and you regarding the subject matter hereof.
No amendment or modification to this
Agreement will be binding upon us unless agreed to by an authorized representative of us.
This Affiliate Participation Agreement contains the terms and conditions
that apply to your participation as a
member of the affiliate program (the "Affiliate Program") for PROCLAIM ("we" "us" or "Merchant").
This Affiliate Program is administered through the ShareASale 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 RECEIVING AND USING
LINKS TO THE MERCHANT WEBSITE, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND THAT
YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN 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 ShareASale 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 any time. Only websites with general or
United States based domain name
extensions (e.g. .com, .net, .org, .us, etc.) and primarily serve a United States based audience are eligible for
participation in this Affiliate Program. 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 Share A Sale 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 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, and (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.
2. Suitability of Affiliate Websites. (a) Your 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 anytime 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:
(i) infringe on our or any other person's or entity's intellectual
property, publicity, privacy or other rights,
(ii) fail to state a clear online privacy policy to your visitors,
(iii) require a username or password to access your websites, without our prior written consent (including via
email),
(iv) violate any law, rule or regulation,
(v) contain any content that is threatening, harassing, defamatory,
obscene, harmful to minors, or contains
nudity, pornography or sexually explicit materials,
(vi) 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,
(vii) contain material that is materially false, inaccurate, fraudulent
or misleading or that promotes pyramid or
similar schemes;
(viii) promote violence or any illegal or immoral activity,
(ix) promote discrimination based upon gender, race, religion,
nationality, disability, sexual orientation or age,
(x) use or promote the use of bulk email or spam,
(xi) 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,
(xii) use any software that gathers information through the
customer's Internet connection without his or her
knowledge,
(xiii) 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.
(xiv) use a context based triggering mechanism to display an advertisement that partially or wholly covers or
obscures paid advertising or other content on an Internet website in a way that interferes with a user's ability to
view the Internet website, or use browser-embedded contextual targeting applications or other applications which
serve advertisements (pop-up ads and pop-unders, in-browser ads and highlighting of website content and
redirecting to websites with similar content, regardless of whether any
such advertisements are served directly
by you or is provided or purchased from a third-party) on Merchant's or Merchant's competitors websites or on
any other website other than your websites.
(b) You may not (i) engineer your websites in a manner designed to direct
or pull Internet traffic away from our
Merchant website, (ii) attempt to modify or alter our Merchant website
in any way; (iii) make any
representations, either express or implied, or create an appearance
that a visitor to your website is visiting our
website, e.g., "framing" the Merchant website, without our prior written approval; or (iv) "scrape" or "spider" any
Merchant website or any other website for Merchant Content (as defined below).
(c) You may not purchase products during sessions initiated through
Qualified Links on your websites for, resale,
or commercial use of any kind. Such purchases may result, in our sole discretion, in the withholding of the
Revenue Share or the termination of this Agreement.
(d) We have the right in our sole and absolute discretion to monitor
your websites at any time and from time to
time to determine if you are in compliance with the terms of this
Agreement, and you agree to provide us with
unrestricted access to your websites for such purposes.
3. Right to Use Merchant Content. (a) Subject to the terms and
conditions herein, we hereby grant to you,
during the term hereof, a limited, non-exclusive, non-transferable, revocable, non-sublicensable, non-assignable
right to (i) access the Merchant Website through Qualified Links
(defined below) provided by us from time to
time, and (ii) use and display the Merchant Content (as defined below)
that we may make available to you from
time to time solely as provided to you through the Share A Sale Network
and solely for the purpose of generating
the sale of Merchant's products from your website that we have approved
and solely in connection with your
participation in this Affiliate Program. Any attempt to sublicense,
assign or transfer this right is void. We may
terminate your rights to use the Merchant Content for any reason at any
time in our sole and absolute discretion.
(b) A "Qualifying Link" means a link from your website to our website
using one of the URLs or graphic links
provided by us (or through the ShareASale Network) for use in the Affiliate Program that allows Share A Sale to track
the use of such links by your visitors. All Qualifying Links that you will use in the Affiliate Program will be
provided to you from the ShareASale Network or by other means selected by
us, and only valid Qualifying Links
generated by the ShareASale Network or by us will be tracked for purposes
of determining Revenue Share that you
may be eligible to receive on sales of products generated through your website. Except for the right to use the
Merchant Content provided to you by us hereunder, we are not granting
you any rights in, and you represent,
warrant, covenant and agree that you will not use, in any manner, any trademarks, service marks, trade names,
logos, banners, buttons, graphics, digital images, text, or other content
or materials owned or controlled by us.
(c) Upon termination of this Agreement, for any reason, you shall
immediately cease using, displaying or
otherwise maintaining any interest in the Merchant Content. For
purposes of this Agreement "Merchant
Content" means any and all trademarks, service marks, trade names,
logos, banners, buttons, digital images,
graphics, text and other content and material which we may, in our sole discretion, make available to you in
connection with this Affiliate Program from time to time.
4. Special Offers.
(a) From time to time, we may post on the ShareASale Network special
offers ("Special Offers") to pay certain
members of the Affiliate Program, chosen at our sole discretion, a
specified referral fee on sales of certain
products. The terms of a Special Offer, as posted on the Share A Sale
Network or otherwise communicated to such
members, shall be governed by the terms and conditions of this Agreement. However, in the event of any
inconsistency between the terms of the Special Offer and the terms of
this Agreement, the terms of the Special Offer shall govern.
(b) 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.
4. Merchant Content Usage Restrictions. IF YOU FAIL TO COMPLY WITH
ANY OF THE RESTRICTIONS IN THIS
SECTION 5, AT OUR SOLE DISCRETION YOU 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 Share A Sale 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) Keyword Purchasing. You may not purchase or bid for the placement of
our name or trademarks within any third
party search engine or portal, however deep linking is permitted.
(i)Protected SEM Bidding Keywords
PROCLAIM, wearproclaim.com, PROCLAIM coupon, PROCLAIM discount, PROCLAIM discount code, PROCLAIM promo code, PROCLAIM coupon code, and any variations including misspellings, alternate spellings, alternate spacing, or any phrases that include these terms. Bidding on branded keywords plus generic terms such as coupons or promotional codes is also prohibited.
(c) Search Engine and Advertising Restrictions. You also agree to the following additional search engine
advertising rules: (i) all advertisements by you must be directed to your site or a page within your site, (ii) none
of your advertisements may link directly to the Merchant Website or any
page within the Merchant Website, (iii)
you will not show the Merchant Website URL as the URL in your ads, (iv)
you will not use the words "official site"
or words to similar effect in connection with any use of our trademarks,
or otherwise suggest or imply that your
site is an official Merchant site or partner, and (v) you will stop
bidding on any keyword term at our request.
(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.
(c) Promotion Codes & Coupons. You may not, without our prior written consent, utilize any promotion,
promotion code, coupon, or other promotional opportunity that is not specifically authorized for Merchant's
Affiliate Program and explicitly authorized for your use.
(d) Affiliates may not create affiliate tracking links that also contain a tracking link for our Referral Program. Affiliates are permitted to participate in either the Affiliate Program or the Referral Program but individual links must be specific and exclusive to one of the programs. By participating in this Affiliate Program, you agree not to claim commission or credit from both the Affiliate Program and from our Referral Program for the same transaction.
(e) Communications with Consumers. You may not, without our prior
written consent, (i) generate or send any
email messages or other "electronic messages" (as defined in the
Share A Sale Affiliate Membership Agreement, as
amended) 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
email or other "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 email communications or
newsletters or other "electronic messages" that we send our customers or members of the ShareASale 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 or any other applicable laws or regulations.
5. 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.
6. Operation and Maintenance of the Merchant Website. (a) You
acknowledge and agree that we will accept
or reject, in our sole and absolute discretion, all orders by customers
for merchandise placed on or through the
Merchant Website. You further acknowledge and agree that (i) you do not
have any authority to make or accept
any offer or commitment on behalf of us, (ii) we cannot, and do not, guarantee the availability of any
merchandise or other services offered for sale on the Merchant Website,
and (iii) we are solely responsible for all
pricing, merchandising, order processing, order fulfillment, shipping, returns and all other aspects of the
Merchant Website and the sale of merchandise thereunder. Customers who
access the Merchant Website will be
deemed our customers. Accordingly, all of our then applicable rules,
policies and procedures concerning orders,
returns, refunds, customer service, privacy and other terms of use and
sale will apply to such customers. As
between the parties, all information obtained through the use of the
Merchant Website shall be our exclusive property.
(c) We may change our policies and operating procedures at any time
in our sole discretion. For example, we will
determine the prices to be charged for products sold under the
Affiliate Program in accordance with our own
pricing policies. Product prices and availability may vary from time to
time. We will use commercially reasonable
efforts to present accurate information, but we cannot guarantee the availability or price of any particular product
or the error-free or uninterrupted operation of our website.
7. Revenue Share Payments. (a) During the term of this Agreement, we
agree to pay you a revenue share
(the "Revenue Share") equal to the applicable percentage of Net Revenue determined pursuant to the schedule
set forth in the Affiliate Program overview/description materials
posted on the Share A Sale Network or otherwise
provided by us. We reserve the right, at our sole discretion, to change, modify, add or remove portions of this
Revenue Share schedule at any time without notice. For purposes of this Agreement, "Net Revenue" means all
cash consideration (not including any portion of payment made through
the redemption of gift certificates,
coupons or credits) from merchandise sold in a transaction resulting
directly from a Qualifying Link tracked by P
Share A Sale from your website to the Merchant Website in accordance with
this Agreement, where the customer
purchases such merchandise, less all taxes, shipping and handling
charges, gift wrapping and other value-added
service charges, returns and chargebacks. You acknowledge and agree that
we will not be obligated to pay any
revenue share unless we actually ship the applicable order and receive
full payment for such an order. Additionally,
unless we otherwise agree, we will not be obligated to pay any revenue
share on any purchase from a customer
linking to our Merchant Website from your websites, unless such purchase
is made during the same on-line
session or within thirty (30) days after the customer has initially
entered our website ( "Revenue Share Time")
and the customer re-enters our website directly during that time (and
not through another affiliate link). After the
Revenue Share Time, we will not pay referral fees on any products that
are added to a customer's shopping cart
after the customer has re-entered our website (other than through a Qualifying Link from your website), even if
the customer previously followed a link from your website to our website.
We do not pay a revenue share on the
purchase of gift certificates or gift cards. All determinations of
Qualifying Links and whether a referral fee is
payable will be made by us and Share A Sale and will be final and
binding on you.
(b) Subject to the terms and conditions of this Agreement, we will pay
you the above-described Revenue Share
on a monthly basis. Payments will be sent through the Share A Sale Network
for the Revenue Share earned, less any
taxes or other amounts that we may be required by law to withhold. No interest will be paid on any such amount
held by us. If a Revenue Share payment is made hereunder and relates to merchandise that is later returned by
the customer, the applicable Revenue Share will be deducted from the next applicable payment hereunder. If any
portion of such Revenue Share cannot be recovered through a deduction, we will invoice you for such amount
and you agree to pay this amount within 30 days after receipt of such invoice. Upon termination of this
Agreement, we will send, or cause to be sent, the total amount of Revenue Share then owed to you as of the
termination date. The final Revenue Share payment may be withheld by us
for a reasonable period of time to
ensure that the correct amount is to be paid after making any adjustments that may be required, including, but
not limited to, adjustments for returns.
8. Share A Sale Tracking. (a) We will track sales made to customers who
purchase products using Qualified Links,
that you will generate using Share A Sale 's technology, from your website
to our website, and reports summarizing
sales activity will be available to you also through the ShareASale Network. The form, content, and frequency
of the reports are limited to those reports and capabilities available through the ShareASale Network and may vary
from time to time in our and Share A Sale 's reasonable discretion. We are not responsible for any changes that
Share A Sale may make in their reporting format, timing, or types of reports available to the members of our
Affiliate Program. To permit accurate tracking, reporting and fee accrual, you must ensure that the links between
your website and our website are properly formatted. We are not
responsible for improperly formatted links
regardless of whether you have made amendments to the code or not. In addition, we are unable to track or
provide you credit for sales from customers that are referred to us with browsers that do not have their cookies
setting enabled. You hereby agree not to disclose the such information contained in Share A Sale reports regarding
us to any third party without our prior written consent and that such information is the property and Confidential
Information of ours.
(b) You represent, warrant, covenant, and agree that (i) you are a member
of Share A Sale 's network affiliate
program, and (ii) you will not bypass, modify, circumvent, impair, disable
or otherwise interfere with any links,
web beacons, cookies or other technology provided by us or Share A Sale.
9. 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
Share A Sale with us or you,
(v) at all times during and after the term of this Agreement, you will protect all of our and Share A Sale '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 ShareASale's Confidential Information to
the extent necessary to perform your
obligations hereunder, and
(vii) you will not use or display any trademark, service mark, logo or
other content of PROCLAIM.
(viii) you will promptly notify us and Share A Sale 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.
(d) 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.
11. 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, PROCLAIM, our respective
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, or any content, technology or other
materials displayed or contained thereon, including but not limited to
with respect to claims of misappropriation
or infringement, (iii) your failure or alleged failure to comply with any applicable law, rule or regulation, (vi)
claims for unsolicited email, spamming or violation of the CAN-SPAM Act
of 2003, (vii) your misuse, unauthorized
modification or unauthorized use of the services or materials provided by
us or Share A Sale hereunder, or (viii)
any actual or alleged wrongful or negligent act or omission by you.
12. 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 at any time and for any reason
by providing notice (including via e-
mail) to the other party. We may also terminate this Agreement
immediately, without notice, if we determine, in
our sole discretion, that you have breached this Agreement or that your website(s) is unsuitable to participate in
this Affiliate Program. Either party may terminate a Special Offer at any time by deleting its acceptance through
the Share A Sale Network, and such termination of a Special Offer shall not
be deemed a termination of this
Agreement or any other Special Offers. Sections 3(c), 8(b), 10-20 and 23 (together with all other provisions that
may reasonably be interpreted as surviving termination or expiration of
this Agreement) will survive any
termination or expiration of 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.
(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.
13. Modification of Agreement. We reserve the right to modify this
Agreement, at any time in our sole
discretion, by posting a change of notice or a new agreement on the
Share A Sale Network, and, if applicable, on the
Merchant Website. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU AGREE
THAT YOUR SOLE RECOURSE
IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THE MERCHANT
CONTENT AND PARTICIPATION
IN THIS AFFILIATE PROGRAM FOLLOWING ANY MODIFICATION OF THIS AGREEMENT
SHALL CONSTITUTE
CONCLUSIVE AND BINDING ACCEPTANCE TO ANY MODIFICATION OR NEW AGREEMENT.
14. Warranty Disclaimer. WE MAKE NO WARRANTIES, REPRESENTATIONS, OR GUARANTEES, WITH REGARD
TO THE PRODUCTS OR SERVICES SOLD THROUGH THE MERCHANT WEBSITE, THE
OPERATION AND
MAINTENANCE OF THE MERCHANT WEBSITE OR THE Share A Sale NETWORK, WHETHER
EXPRESS OR IMPLIED,
ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR
ANY IMPLIED
WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE
OF TRADE. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO REPRESENTATION THAT
THE OPERATION OF THE MERCHANT WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE.
15. Limitation of Damages. NEITHER WE NOR PROCLAIM WILL HAVE ANY
LIABILITY (WHETHER IN CONTRACT,
WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), PRODUCT
LIABILITY OR OTHER THEORY)
FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES
OR ANY LOSS OF
REVENUE, DATA OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT
OR THE AFFILIATE
PROGRAM, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHER, OUR AGGREGATE
LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE
AFFILIATE PROGRAM WILL IN NO
EVENT EXCEED THE TOTAL REVENUE SHARE PAID OR PAYABLE BY US TO YOU UNDER
THIS AGREEMENT DURING
THE PRECEDING TWELVE (12) MONTH PERIOD PRIOR TO THE DATE SUCH LIABILITY AROSE. ALL CLAIMS MADE
HEREUNDER BY YOU AGAINST US SHALL BE MADE WITHIN 120 DAYS OF THE ACT OR OMISSION THAT FORMS
THE BASIS OF SUCH CLAIMS.
16. Independent Contractors. We, you, Share A Sale and PROCLAIM are each independent contractors and nothing
in this Agreement or in any Share A Sale affiliate program documents is
intended to or will create any form of
partnership, joint venture, agency, franchise, sales representative, or employment relationship.
17. Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws
of the Commonwealth of New York, excluding its conflict of laws principles. Any lawsuit relating to this Agreement
must be brought in the federal or state courts located in New York,
New York.
18. Press Release; Publicity. You agree that you will not issue any press release or make any other similar
public announcement that in any way makes any reference to us or PROCLAIM without our prior written consent,
which consent may be withheld in our sole discretion.
19. 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.
20. Headings. The titles and headings of the various sections and
paragraphs in this Agreement are intended
solely for 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.
21. 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.
22. 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.
23. Entire Agreement. This Agreement and the Revenue Share schedule represents the complete agreement
and understanding between us and you and supersedes any other oral or
written communications or
understanding between us and you regarding the subject matter hereof.
No amendment or modification to this
Agreement will be binding upon us unless agreed to by an authorized representative of us.