Sears PartsDirect

PLEASE READ THE FOLLOWING CAREFULLY, AS IT REPRESENTS A LEGALLY BINDING AGREEMENT BETWEEN TRANSFORM SR BRANDS LLC (“COMPANY”) AND YOU (“AFFILIATE,” “YOU,” and “YOUR”). 1.General. 1.1Program Terms. These Affiliate Marketing Terms and Conditions (“Agreement”) govern the terms and conditions between Company and Affiliate (each a “Party,” and together “Parties”) applicable to Affiliate’s membership in Company’s Affiliate Marketing Program (“Affiliate Program”). By submitting your application and by your participation in the Affiliate Program, you agree to comply with all the terms and conditions set out in this Agreement. This Agreement that Affiliate has entered into supplements the terms and conditions of Company’s marketing affiliate networks (e.g., Amazon, Google, Share-A-Sale) (“Affiliate Network Agreement”). In the case of any discrepancy between the terms of the Affiliate Network Agreement and this Agreement, the terms of this Agreement shall control. 1.2Modifications. Company reserves the right, at its sole discretion, to modify or change the terms of this Agreement at any time with or without notice. Such modifications or changes shall be posted to this web address: [INSERT WEBSITE], and all such changes will be in effect as of the “Last Modified” date and time at the top of this page. It is Affiliate’s responsibility to review the posted Agreement prior to its participation in the Affiliate Program and periodically thereafter to ensure that its continued use of the Affiliate Program remains in compliance with this Agreement. If any modification or change to this Agreement is unacceptable to Affiliate, its sole recourse shall be to terminate this Agreement pursuant to Section 6. Affiliate’s continued participation in the Affiliate Program 48 hours after the “Last Modified” date and time constitutes its acceptance, agreement, and consent to such changes.1.3Approvals. Affiliate’s participation in the Affiliate Program is subject to Company’s approval, which may be withheld in Company’s sole discretion. Affiliate must submit to Company the URL for each website on which Affiliate seeks approval to advertise, regardless of whether Affiliate maintains a separate account on an Affiliate Network for such website. Affiliate may not advertise on such websites until they are approved by Company. (Once approved, they are “Approved Websites”).2.Representations and Warranties. Affiliate represents and warrants that (a) it is a citizen of the United States; (b) it is at least 18 years of age, is lawfully able to enter into contracts, and has the full power and authority to enter into this Agreement; (c) if entering into this Agreement on behalf of a corporate entity, it is authorized and lawfully able to bind that entity to this Agreement; (d) the information in Affiliate’s program application or otherwise associated with Affiliate’s account, including email address and identification of Approved Websites, is complete and accurate and will remain so at all times during the term of this Agreement; (d) it will perform its obligations under this Agreement in accordance with all applicable federal, state, and local laws, rules, and regulations; (e) this Agreement does not and will not conflict with any of Affiliate’s obligations to any third parties; (f) it will not make any false, misleading, or disparaging representations or statements regarding the Company, its products, or services; (g) its promotion of Company’s products and services will not constitute an infringement of or otherwise violate the rights of any third party, including without limitation any copyright, trademark, trade dress, right of publicity, or right of privacy.3.Rights; License; Company Marks; Prohibited Content. 3.1Rights. Pursuant to the terms of this Agreement, Company grants Affiliate a revocable, limited and non-exclusive right to lawfully advertise and promote certain Company products and services (“Company Promotions”), the Company’s website [INSERT URL] (“Company Website”) and/or designated landing pages (each a “Destination Site”) as specified by Company and solely (a) in a manner approved by Company, (b) through Affiliate Networks, and (c) on Approved Websites, for the express purpose of attracting and funneling consumers to the Company Website or a Destination Site. 3.2License. Subject to, and in accordance with, the terms of this Agreement, Company grants Affiliate a limited, revocable, non-exclusive, non-transferable, royalty-free license during the term of this Agreement (as defined in Section 6.1) to use in the United States only those Company marks, trademarks, service marks, trade names, trade dress, logos, graphics, slogans, and icons specifically designated and provided by Company (collectively “Company Marks”) to Affiliate solely in connection with the advertising of Company Promotions, Company Website, or Destination Sites within the context of the Affiliate Program (“License”). All rights not expressly granted by this License are reserved by Company. This limited License will automatically terminate upon the termination of this Agreement pursuant to Section 6 or the Affiliate’s participation in the Affiliate Program. Company may terminate the license set forth in this Section 3 in whole or in part upon written notice to Affiliate, and upon such termination, Affiliate shall immediately remove any Company Marks from its sites.3.3Company Marks. Company retains all rights, title and interest in and to the Company Marks. Except as granted by Sections 3.1 and 3.2 above, no other right, title, or interest is transferred with regard to the Company Marks hereunder. Except as set forth in this Agreement, Affiliate shall not use the Company Marks in any manner whatsoever. Affiliate acknowledges that the Company Marks are the sole property of Company, and Affiliate will not at any time during the term of this Agreement or thereafter dispute, contest, or impair directly or indirectly Company’s interest in and to the Company Marks. It is agreed that all use of the Company Marks and any and all goodwill and other proprietary rights that are created by or that result from such use under this Agreement are on behalf of, accrue and inure solely to the benefit of Company. Affiliate will not at any time take any action in derogation of the Company Marks, including without limitation applying to register any trademark, trade name, or other designation that is confusingly similar to the Company Marks. Company reserves the right to object to Affiliate’s unfair use or misuse of Company Marks or other violations of applicable law.3.4Prohibited Conduct. During the Term of this Agreement and in connection with any advertisement of a Company Promotion, Company Website, or Destinate Site hereunder, Affiliate shall not:(a)engage in any deceptive, misleading, or unsolicitied advertising; (b)modify, alter, obscure, dilute, blur, tarnish, or otherwise damage or impair the value of the Company Marks;(c)incorporate any Company Marks as metatags on any webpages;(d)use or employ domain names which are similar to the Company Marks, the Company Website, or the Destination Sites in order to obtain data submissions (e.g., names based on misnomers, pseudonyms, misspellings, typos and similar phonics);(e)use any search engine placements (e.g., purchase of key terms) that are based on the Company Marks, Company Website, or Destination Sites; (f)use any text, graphical image, or URLs other than those provide by Company to Affiliate for use in connection with services contemplated by this Agreement; (g)directly or indirectly, incent any individual to engage with the Company Website, Company Promotion, or Destinate Site in exchange for something of value;(h)place any Company Marks, links to Company (“Affiliate Referral Links”) or advertisements for Company Promotions, Company Website, or Destination Sites on a website that links to or contains content that is sexually explicit, promotes violence, hate, or discrimination (based on gender, religion, race, ethnicity, national origin, disability, age, or sexual orientation), promotes illegal activities, or is otherwise objectionable to Company as Company may communicate to Affiliate;(i)make any representations or warranties on behalf of Company, or suggest that it is authorized to act as an agent or otherwise on behalf of Company, other than promoting such content as is authorized under and in accordance with this Agreement;(j)engage in any automation or any fraudulent, deceptive, or misleading device designed to result in the purchase by a user unintentionally or by an individual who does not have a bona fide interest in such purchase;(k)tag, track, or capture purchasing or clickstream information, or otherwise interfere with those users who click on a Referral Link and navigate to the Company’s Website or Destination Site to purchase or engage with Company Promotions.4.Tracking; Validation; Referral Links. All issuance, tracking, and validation of Referral Links shall be handled by and subject to the terms and conditions as provided by the Affiliate Network. 5.Fees; Payment. All Fees and Payments available to Affiliate under this Agreement shall be handled by and subject to the terms and conditions provided by the Affiliate Network. Affiliate shall not be entitled to any payments accruing during any period during the Term in which it is in violation of this Agreement.6.Term; Termination; Survival. 6.1Term. This Agreement shall commence as of the date Affiliate’s application is approved by Company for participation in the Affiliate Program (“Effective Date”) and continue until its termination in accordance with this Section (“Term”).6.2Termination. (a)Either Party may terminate this Agreement for any reason or no reason, by providing the other Party with [INSERT #] days’ prior written notice. (b)Company may immediately terminate this Agreement, without penalty, if Affiliate is reasonably suspected by Company to have (a) breached any of the representations or warranties in Section 2; (b) breached any terms or conditions of the Affiliate Network agreement(s); or (c) performed any of the Prohibited Conduct as outlined in Section 3.3. 6.3Effect of Termination. Upon any termination of this Agreement, (a) each Party shall be relieved of its respective obligations hereunder; (b) Company shall deactivate and Affiliate shall immediately remove from its Approved Websites any use of the Company Promotions, Websites, Destination Sites, or Referral Links; (c) any Rights and Licenses granted by Company pursuant to Sections 3.1 and 3.2 shall be immediately revoked and Affiliate shall immediately remove any Company Marks on its sites; (d) each Party shall within five (5) business days return, or, at the other Party’s request, destroy, any Confidential Information in its possession.6.4Survival. Sections 8, 9, 10 and 14 shall survive Termination. 7.Compliance With Laws; Disclosures. Affiliate’s advertising of Company Promotions, Company Website, or Destination Site or Affiliate’s inclusion of a Referral Link on an Approved Website must comply with all applicable laws, rules, and regulations, including without limitation, (a) Section 5 of the Federal Trade Commission (“FTC”) Act (15 USC §45); (b) any FTC Guidance, including the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising (“FTC Guides”); and (c) 15 U.S.C. §7701(a)(11) (“CAN-SPAM Act”). Failure to comply with such laws, rules, and/or regulations shall be a material breach of this Agreement. Where and as applicable, Affiliate shall comply with all disclosures as required and outlined by the FTC Guides. Any disclosures must be placed in plain sight and in close proximity to any statements made about the Company’s products and services. 8.Indemnification. Affiliate agrees to indemnify and hold harmless Company, its directors, officers, employees, parents, affiliates, agents, successors and assigns, from and against any and all third party claims, liabilities, losses, damages, costs, expenses (including outside attorneys’ fees), judgments and penalties arising out of, based upon, resulting from, or in any way connected with (a) Affiliate’s breach of the representations and warranties set forth in this Agreement; (b) Affiliate’s acts or omissions; (c) Affiliate’s or a third party’s operation or use of the Affiliate Program; (d) Affiliate’s Approved Websites and all content, materials and technology related thereto; (e) any agreement between Affiliate and any third party (including without limitation any technology providers or Affiliate Networks); (f) any unauthorized use of the Company Marks, Company Website, Destination Sites or Affiliate Program; and (g) Affiliate’s violation of the rights of any third party, including without limitation, copyright, trademark, right of publicity, and right of privacy.9.Limitation of Liability. THE AFFILIATE PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THE USE OF THE AFFILIATE PROGRAM IS AT THE AFFILIATE’S OWN RISK. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESSED OR IMPLIED, CONCERNING THE ACCURACY, SECURITY, FUNCTIONALITY OR PERFORMANCE OF THE AFFILIATE PROGRAM, OR ANY SERVICE OR INFORMATION PROVIDED THROUGH THE AFFILIATE PROGRAM. COMPANY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE AND NON-INFRINGMENT. THE COMPANY PROMOTIONS, COMPANY WEBSITE AND DESTINATION SITES ARE SUBJECT TO CHANGE AT ANY TIME, AT COMPANY’S SOLE DISCRETION. AFFILIATE SHALL BE LIABLE FOR ANY BREACHES OF DATA FOR WHICH IT IS RESPONSIBLE AND, ACCORDINGLY, THERE SHALL BE NO JOINT LIABILITY BETWEEN THE PARTIES WITH RESPECT TO SUCH BREACHES.COMPANY IS NOT RESPONSIBLE FOR ANY DAMAGES, INJURY OR ECONOMIC LOSS ARISING FROM AFFILIATE’S USE OF AFFILIATE PROGRAM. SHOULD ANY PART OF THE AFFILIATE PROGRAM CAUSE DAMAGE OR INCONVENIENCE TO THE AFFILIATE OR ANYONE CLAIMING THROUGH THE AFFILIATE, THE AFFILIATE ASSUMES RESPONSIBILITY AND THE ENTIRE COST THEREIN.UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO AFFILIATE; AFFILIATE’S VISITORS, AGENTS, NETWORKS, USERS OR SUBSCRIBERS; OR ANY OTHER PERSON OR ENTITY CLAIMING THROUGH AFFILIATE FOR ANY LOSS, LIABILITIES, INJURY, OR DAMAGE, OF WHATEVER KIND OR NATURE, RESULTING FROM OR ARISING OUT OF THIS AGREEMENT AND/OR ANY MISTAKES, ERRORS, OMISSIONS, DELAYS, OR INTERRUPTIONS IN THE RECEIPT, TRANSMISSION, OR STORAGE OF ANY MESSAGES OR INFORMATION ARISING OUT OF OR IN CONNECTION WITH THE DESTINATION SITE, REFERRAL LINKS, AND/OR THE AFFILIATE PROGRAM; AND, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY DAMAGES OR SPECIAL DAMAGES, LOST PROFITS, LOST OPPORTUNITIES, LOST SAVINGS, LOST DATA, OR ANY OTHER FORM OF CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES, WHETHER RESULTING FROM BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE ARISING FROM OR RELATED TO THIS AGREEMENT. THE AGGREGATE LIABILITY OF COMPANY ARISING WITH RESPECT TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT.10.Confidentiality. Affiliate acknowledges that, during the Term of this Agreement, it may be entrusted with non-public information disclosed by, related to, or revealed to it by Company, directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or provided under circumstances reasonably indicating that the information is confidential or proprietary, including without limitation, information about Company’s business affairs, operations, products, trade secrets, technology and the terms of this Agreement (collectively, “Confidential Information”). Except in connection with the performance of its obligations hereunder, Affiliate shall not otherwise use in any way for its own account or the account of any third party, nor disclose to any third party, any Confidential Information. Notwithstanding the foregoing, Confidential Information may be disclosed pursuant to a regulation, law, court order, or rule (but only to the minimum extent required to comply with such regulation, law, order, or rule and only with advance notice of such disclosure to the Company reasonbly sufficient for Company to seek to limit or quash such dislosure). Affiliate shall take all necessary steps to avoid any unauthorized disclosure or unauthorized use of the Confidential Information by any third parties (person or business) and shall take all commercially reasonable efforts to protect the confidentiality of the Company’s Confidential Information, such precaution not to be less than the precautions Affiliate takes to protect the confidentiality of its own Confidential Information. This provision shall survive termination of this Agreement. 11.Assignment. Company may assign its rights and obligations under this Agreement, in whole or in part, to any party at any time without notice. Affiliate may not assign the terms of this Agreement or delegate its duties hereunder without the prior written consent of Company. 12.Exclusivity. Except as otherwise set forth herein, this Agreement is non-exclusive and either Party may enter into similar agreements for similar services provided herein with third parties.13.Relationship Between the Parties. Neither participation in the Affiliate Program, nor anything in this Agreement shall constitute an employment, broker or agency relationship, between Affiliate and Company, nor does it create any partnership, joint venture, franchise, or sales representative relationship between the Parties. Affiliate and Company are independent contractors. Affiliate will have no authority to make or accept any offers or representations on Company’s or its affiliates’ behalf.14.Governing Law; Trial by Jury. This Agreement will be construed in accordance with and governed by the laws of the state of Illinois, without giving effect to its choice of laws rules, and the Parties further consent to the exclusive jurisdiction by the state or federal courts located in Cook County, Illinois to resolve any dispute that may arise between the Parties relating to this Agreement. EXCEPT TO THE EXTENT REQUIRED BY LAW, COMPANY AND AFFILIATE EACH HEREBY VOLUNTARILY, INTENTIONALLY AND KNOWINGLY WAIVE ANY RIGHT TO TRIAL BY JURY..15.Entire Agreement; Waiver; Interpretation. This Agreement reflects the entire agreement between Company and Affiliate regarding the Affiliate Program and supercedes any prior and contemporaneous agreements, representations, warranties, or assurances regarding or related to the subject matter herein. Except as expressly set forth in this Agreement, (i) any failure or delay in exercising any of the rights, powers, or remedies under this Agreement or other legal right will not operate as a waiver of such or any other right, power, or remedy, and (ii) any waiver of any provision of this Agreement will not be effective unless made in writing and signed by the party against whom the waiver is sought to be enforced. This Agreement shall be deemed a mutual agreement and shall not be construed and/or interpreted in favor or against either Party on the basis of preparation of the Agreement.16.Severability; Headings. If any provision of this Agreement is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from this Agreement, and the invalidity of the provision will not affect the validity or enforceability of the remainder of the terms or provisions hereunder. The section headings used in this Agreement are intended for convenience only, and will not be deemed to affect in any manner the meaning or intent of this Agreement or any provision hereof. 17.Miscellaneous. Affiliate will not issue any press release or make any other public communication with respect to this Agreement, Affiliate’s use of any content provided by or on behalf of Company, or Affiliate’s participation in the Affiliate Program. Affiliate will not misrepresent or embellish the relationship between Company and Affiliate (including by expressing or implying that Company supports, sponsors, endorses, or contributes to Affiliate or any charity or other cause), or express or imply any relationship or affiliation between Company and Affiliate or any other person or entity except as expressly permitted by this Agreement.