ExtraValue.com Affiliate Network Agreement
This Master Agreement ("Agreement") is made between EXTRAVALUE.COM (hereinafter called "EXTRAVALUE") and Affiliate (hereinafter called "Affiliate").
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE REGISTERING AND APPLYING TO BECOME AN AFFILIATE OF EXTRAVALUE. BY CLICKING ON THE "SIGNUP" BUTTON AT THE BOTTOM OF THE AFFILIATE REGISTRATION FORM, YOU INDICATE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT ANY OF THE TERMS OF THIS AGREEMENT, PLEASE DO NOT ACT OR REPRESENT YOURSELF AS AN AFFILIATE OF EXTRAVALUE. EXTRAVALUE MAY MODIFY ANY OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, AT ANY TIME AND IN OUR SOLE DISCRETION, BY POSTING A NEW AGREEMENT ON OUR SITE. YOUR CONTINUED PARTICIPATION AS AN AFFILIATE FOLLOWING OUR POSTING OF A NEW AGREEMENT ON OUR SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE OR NEW AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, ALL USES OF THE TERM "YOU" AND "AFFILIATE" IN THIS AGREEMENT SHALL REFER TO THE COMPANY YOU REPRESENT AND ANY OF ITS EMPLOYEES AND AGENTS WHO ARE INVOLVED OR PARTICIPATE IN THE EXTRAVALUE.COM AFFILIATE PROGRAM.
By completing and submitting the Affiliate Program application form and clicking the "SIGNUP" button, You are entering into a legal agreement with EXTRAVALUE which governs your participation in the EXTRAVALUE.COM Affiliate Program. You and EXTRAVALUE have also each entered into an agreement with AffiliateShop by Pendulab 2000, the EXTRAVALUE.COM Affiliate Program administrator. The following terms and conditions govern the relationship between You and EXTRAVALUE that results from your participation in the EXTRAVALUE.COM Affiliate Program.
"EXTRAVALUE Marks" means any of the trademarks, service marks, tradenames, designs, logos, trade dress, images and/or other proprietary names or marks of EXTRAVALUE.COM.
"EXTRAVALUE Site" means any website maintained from time to time by or on behalf of EXTRAVALUE as part of its mall and any entity controlled by or under common control with EXTRAVALUE.
"Link" means a URL hyperlinked to text, a graphic, a search field or another information object on Your Site, and includes a textlink or a banner.
"Net Sales" means the total gross revenues paid upon the sales of Products, less shipping charges, handling charges, insurance, sales or use taxes, value added taxes, discounts, refunds, returns, adjustments, chargebacks and any and all similar fees, costs and expenses.
"Qualifying Products" means the specified products sold by EXTRAVALUE on the EXTRAVALUE Site as stated in EXHIBIT B of this Agreement.
"Referral Fee" means the commission paid by EXTRAVALUE to you on Net Sales of Products generated from users clicking through from Your Site to the EXTRAVALUE Site and ordering Products.
"Term" means the term of this Agreement as defined in Section 9 hereof.
"Your Site" means the website maintained by you indicated on your Affiliate Program application form under "Website URL".
3.1 To begin the enrollment process, you must submit a completed Affiliate Program registration from via the EXTRAVALUE Site at http://www.extravalue.com/cards/affiliate on the "Join Now" link or through AffiliateShop's website at http://coldfusion.affiliateshop.com/AADMSignup.cfm?wid=000383. EXTRAVALUE will evaluate your application in good faith and will notify you within one week regarding acceptance or rejection of your application. EXTRAVALUE may reject your application if it determines (in its sole discretion) that Your Site is unsuitable for the EXTRAVALUE.COM Affiliate Program for any reason. If EXTRAVALUE rejects your application, you may reapply at any time, and EXTRAVALUE will reconsider the application.
3.2 By submitting the Affiliate Program application form, you acknowledge that you have evaluated independently the desirability of participating in the EXTRAVALUE.COM Affiliate Program and are not relying on any guarantee or statement other than contained in this Agreement.
4. EXTRAVALUE's Rights and Responsibilities
4.1 EXTRAVALUE will provide to you through AffiliateShop's graphical and textual Links that will enable users of Your Site to click through to the EXTRAVALUE Site, as set forth in more detail in Section 5 hereof.
4.2 EXTRAVALUE is, and during the Term will remain, solely responsible for the development, maintenance and operation of the EXTRAVALUE Site.
5. Your Rights and Responsibilities
5.1 You are, and during the Term You will remain, solely responsible for the development, maintenance and operation of Your Site and for all materials and content that appear on Your Site. EXTRAVALUE reserves the right to refuse acceptance into the EXTRAVALUE.COM Affiliate Program, respectively, of Your Site for any reason, including without limitation if Your Site posts content that is libelous, defamatory, obscene, pornographic, abusive or overly violent, promotes illegal activity or behavior or discrimination or harrassment based on age, disability, gender, national origin, race or sexual orientation, or in EXTRAVALUE's good faith determination, the content adversely impacts EXTRAVALUE's reputation or violates any law or regulation.
5.2 You will select the Links you wish to display from the Links provided by EXTRAVALUE on the EXTRAVALUE Site and will place the selected Qualifying Links on Your Site and enable users of Your Site to click on the Qualifying Links to link to the EXTRAVALUE Site. You may display the Qualifying Links you select on as many pages of Your Site as you wish.
5.3 You will display the Qualifying Links on Your Site in the form, manner and presentation described in the Usage Guidelines attached as Exhibit A to this Agreement and in accordance with such additional instructions as EXTRAVALUE may provide to you from time to time ("Usage Instructions"). You understand that EXTRAVALUE may modify the Usage Guidelines and Usage Instructions at any time. You will not reformat or otherwise change the Qualifying Links without the prior written consent of EXTRAVALUE.
5.4 You agree not to make any representations, warranties or other statements concerning EXTRAVALUE, the EXTRAVALUE Site, any of EXTRAVALUE's products or services, or EXTRAVALUE Site policies, except as expressly authorized in this Agreement or by EXTRAVALUE in writing. You are responsible for notifying EXTRAVALUE of any malfunctioning of the Qualifying Links or other problems with your participation in the Affiliate Program. EXTRAVALUE will respond promptly to all concerns upon notification by you.
5.5 You will not solicit any EXTRAVALUE advertiser or client without the prior written approval of EXTRAVALUE.
5.6 You will not create, publish or distribute any item that references EXTRAVALUE without first submitting such item to EXTRAVALUE and receiving EXTRAVALUE's written consent.
6.1 EXTRAVALUE agrees to pay Referral Fees for all Net Sales of Products generated by a user of Your Site clicking through to the EXTRAVALUE Site on a Qualifying Link and ordering such Qualifying Products. Referral Fees shall be paid for various types of Qualifying Products at the rates agreed to by You for each such Qualifying Product when you accept one or more of EXTRAVALUE's offers from time to time. Referral Fee rates will be set by EXTRAVALUE in its sole discretion. You will not be entitled to a Referral Fee for Net Sales generated by click-throughs on reformatted Qualifying Links.
6.2 During the term of this Agreement, EXTRAVALUE agrees to pay you all Referral Fees within thirty (30) days of the close of the month during which payment for Products sold by click-throughs from Your Site is actually collected, provided that EXTRAVALUE shall not be required to issue a check to you if the aggregate amount of Referral Fees due is less than $50.00USD. In such case, the Referral Fees shall accrue for your benefit until such time as the aggregate amount of Referral Fees due you on a monthly payment date is equal to or exceeds $50.00. EXTRAVALUE agrees to maintain complete and accurate records of all sales of Products pursuant to this Agreement. If a Qualifying Product is returned or an order cancelled by a customer, with respect to which a Referral Fee has been paid by EXTRAVALUE, such Referral Fee shall be deducted from the next monthly payment. If there is no such monthly payment, EXTRAVALUE may render a statement to you for all such amounts, which statement shall be due and payable upon receipt.
6.3 You will be provided with a password that will enable you to enter a password-protected site or an area of a site communicated to you by EXTRAVALUE and AffiliateShop. You may use the password to log in to that site solely to access information about the number of times a user has clicked on the Qualifying Link on Your Site and loaded a web page from the EXTRAVALUE Site and the number of orders for Qualifying Products placed as a result of those click-throughs from Your Site. You understand and agree that EXTRAVALUE pays Referral Fees based only on Net Sales.
6.4 All determinations of whether a Referral Fee is payable will be made by EXTRAVALUE in its sole discretion. If you reasonably believe you are entitled to Referral Fees that EXTRAVALUE has rejected as invalid, you may appeal to EXTRAVALUE whose determination will be final and binding on both EXTRAVALUE and you.
7. Ownership and Licenses
7.1 Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.
7.2 EXTRAVALUE hereby grants you during the Term, subject to the terms and conditions of this Agreement, including the Usage Guidelines set forth on Exhibit A hereto, a revocable, non-exclusive, worldwide, royalty-free license to use, reproduce, display and transmit the Qualifying Links, which contain various EXTRAVALUE Marks, on Your Site solely for the purpose of creating links from Your Site to the EXTRAVALUE Site. Except as expressly set forth in this Agreement or permitted by applicable law, you may not copy, distribute, modify, reverse engineer, or create derivative works from EXTRAVALUE Marks or the EXTRAVALUE Site. You may not sublicense, assign or transfer any such licenses for the use of EXTRAVALUE Marks, and any attempt at such sublicense, assignment or transfer is void.
7.3 During the Term, you will not adopt, use, or register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, any of the EXTRAVALUE Marks, service marks or tradenames, or any word or mark confusingly similar to the EXTRAVALUE Marks in any jurisdiction.
7.4 You hereby grant EXTRAVALUE during the Term a revocable, non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by you solely for co-branding purposes or as a return link from the EXTRAVALUE Site to Your Site.
8. Representations and Warranties
8.1 EXTRAVALUE Warranties. EXTRAVALUE represents and warrants that it has requisite corporate power and authority to enter into this Agreement and to perform its obligations hereunder. EXTRAVALUE does not warrant that the Qualifying Products or the EXTRAVALUE Site will meet your requirements or that performance or operation of the EXTRAVALUE Site will be uninterrupted or error-free. EXTRAVALUE AND ITS LICENSORS MAKE NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, COURSE OF DEALING OR PERFORMANCE AND NONINFRINGEMENT.
8.2 Your Warranties. You represent and warrant that: (i) if You are an individual, you are 18 years of age or older and have valid legal capacity to enter into this Agreement and to perform your obligations hereunder, or if You are the representative of a company, You have requisite corporate power and authority to enter into this Agreement on behalf of the company and the company has requisite corporate power and authority to perform its obligations hereunder, and, in either case, no other consent, approval or authority is necessary or required to bind you as an individual or as a company to all the terms and conditions hereof; (ii) You have read this Agreement and You understand and agree to all of its terms and conditions; (iii) the content on Your Site, and/or the technology used by you in connection with Your Site and/or the means by which users access Your Site (a) are owned, validly licensed for use by you or in the public domain, (b) do not constitute or contain defamatory, libelous, obscene, pornographic or excessively violent material or promote illegal activity or behavior or discrimination or harrassment based on age, disability, gender, national origin, race or sexual orientation, (c) do not infringe or violate any copyright, patent, trademark or other intellectual property right, or otherwise violate or breach any duty toward or rights, including without limitation, rights of privacy and publicity, of any other person, and (d) do not result in any consumer fraud, product liability, breach of contract to which you are a party or cause injury to any third party; and (iv) you will not create a means for benefiting from this Agreement by generating fraudulent Net Sales.
9. Term and Termination
The Term will begin on the date EXTRAVALUE accepts your completed Affiliate Program application and will continue in full force and effect until terminated pursuant to this Section 9. Either party shall have the right, in its sole discretion for any reason whatsoever, to terminate this Agreement at any time by giving the other party 5 days written notice; provided, however, that EXTRAVALUE can terminate this Agreement immediately in the event it deems the content on your site objectionable for any of the reasons set forth in Section 7.2(ii) or if EXTRAVALUE becomes aware that you are using or you have used or permitted the use of any fraudulent means to generate Net Sales of Products by click-throughs from Your Site. Upon termination by either party, the licenses set forth in Sections 6.2 and 6.3 shall automatically terminate, and within 24 hours after termination, you will remove the Qualifying Links and any EXTRAVALUE Marks from Your Site and will destroy or erase from your computer memory any items containing the Qualifying Links and/or the EXTRAVALUE Marks. Sections 7, 8, 9, 10, 11, 12 and 13 will survive the termination or expiration of this Agreement. In addition, you will be entitled to no additional Referral Fees for Net Sales of Qualifying Products generated by Your Site after the effective date of the termination or expiration of this Agreement.
10. AffiliateShop Required Provisions
10.1 You hereby agree to indemnify, defend, and hold harmless AffiliateShop and its affiliates, officers, directors, employees and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) directly or indirectly arising from or relating to your engagement as an Affiliate under this Agreement, any other matter related to this Agreement or the subject matter hereof or any dispute relating thereto.
10.2 You agree that AffiliateShop may rely on any data, notice, instruction or request furnished to AffiliateShop by either party which is reasonably believed by AffiliateShop to be genuine and to have been sent or presented by a person reasonably believed by AffiliateShop to be authorized to act on behalf of one of the parties. In the event of any dispute between the parties, the parties agree that to the extent the parties contact and involve AffiliateShop, AffiliateShop may consult with and use counsel of its own choice in connection with such dispute and the reasonable fees and disbursements of AffiliateShop's counsel shall be within the costs and disbursements covered by the indemnity specified in Section 10.1 above.
10.3. EXTRAVALUE and You acknowledge and agree that the nature of AffiliateShop's software product ("Software") is such that in its normal operation it may access and download elements of software data from resources which are external to the computer or device running the Software, such as Software enabled servers. You acknowledge that AffiliateShop has not undertaken to provide such external resources or servers and specifically disclaims any representation or warranty as to the availability, quality or performance of such resources or whether they may contain any defects which may affect the performance of the Product or EXTRAVALUE's or your computer network or system. AffiliateShop shall not be responsible for provision of any communications facilities or the costs associated with such communications.
10.4. EXTRAVALUE and You agree that AffiliateShop is an intended third party beneficiary to this Agreement.
11. Indemnity; Limitation of Liability
You agree to defend, indemnify and hold harmless EXTRAVALUE from and against any and all third party claims, damages, liabilities, costs and expenses (including reasonable attorneys' fees and expenses) directly or indirectly arising out of or from or relating to your engagement as an Affiliate under this Agreement, including the operation of or content on Your Site, any breach of any of your warranties hereunder or any representations you make on behalf of EXTRAVALUE without its written authorization regarding EXTRAVALUE or the EXTRAVALUE Site. EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO BREACH OF THE CONFIDENTIALITY PROVISIONS HEREIN AND SECTION 7.2 HEREOF, OR WITH RESPECT TO A MATTER COVERED BY THE ABOVE INDEMNITY, OR RESULTING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY EITHER PARTY, NEITHER PARTY OR ANY OF EXTRAVALUE'S VENDORS OR PARTNERS WILL BE LIABLE FOR ANY LOST REVENUES OR PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT, PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE, AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL EXTRAVALUE'S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE NET AMOUNT PAYABLE TO YOU UNDER THIS AGREEMENT.
During the term of this Agreement, You may have access to certain non-public information of EXTRAVALUE, which information a reasonable person would consider confidential or which is marked as "confidential" or "proprietary" by EXTRAVALUE ("Confidential Information"). Confidential Information does not include information that is generally known and available, or in the public domain, through no fault of yours. You agree (i) not to disclose any Confidential Information to any third parties, (ii) not to use any Confidential Information for any purposes except to carry out your obligations and responsibilities under this Agreement, and (iii) to keep the Confidential Information confidential using the same degree of care you use to protect your own confidential information, as long as you use at least a reasonable degree of care. You acknowledge and agree that due to the unique nature of the Confidential Information, there can be no adequate remedy at law for any breach of your obligations hereunder, that any such breach may allow you or a third party to unfairly compete with EXTRAVALUE resulting in irreparable harm to EXTRAVALUE and, therefore, that upon any such breach or threat thereof, EXTRAVALUE shall be entitled to injunctive and other appropriate equitable relief in addition to whatever remedies it may have at law, without the necessity of proving actual tangible damages. In addition, if the non-breaching party prevails in any legal dispute hereunder, it shall be entitled to collect its reasonable attorneys' fees and expenses. All obligations under this Section 12 survive for 3 years after termination of the Agreement.
13.1. EXTRAVALUE may modify any of the terms and conditions contained in this Agreement at any time. EXTRAVALUE will attempt in good faith to notify you via e-mail of any such modification and will post the new Affiliate Agreement on the EXTRAVALUE Site. If a modification is unacceptable, you may terminate this Agreement by giving notice as provided in Section 9. If you do not provide EXTRAVALUE with notice of your termination within 15 days after any modifications are posted and continue to display the Qualifying Links on Your Site, then you will be deemed to have accepted the modifications.
13.2 Each party shall act as an independent contractor of the other and this Agreement will not be construed to create a partnership, joint venture, agency or employment relationship between them. Neither party will have the right or authority to create any obligation or responsibility on the other's behalf or to obligate or bind the other in any respect.
13.3 Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, hurricanes, blizzards, other acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party.
13.4 This Agreement has been made in and shall be construed and enforced in accordance with the laws of the Province of Ontario, without regard to conflict or choice of law rules. The parties agree that sole jurisdiction and venue for actions related to the subject matter hereof shall be with the state courts of county in Pennsylvania, and the U.S. federal courts having within their jurisdiction the location of EXTRAVALUE's principal place of business.
13.5 Any notice to be given under this Agreement shall be in writing and shall be deemed delivered if delivered by e-mail: if to you, to you at the e-mail address provided in your Affiliate Program registration form; and if to EXTRAVALUE, to EXTRAVALUE at affiliateDIR@extravalue.com.
13.6 You may not assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of EXTRAVALUE.
13.7. This Agreement, including Exhibit A and B, the Usage Guidelines, and any applicable terms set forth on the EXTRAVALUE Site represent the entire agreement between the parties with respect to the EXTRAVALUE.COM Affiliate Program and may be modified only by a written instrument signed by both parties or a change or modification to terms made by EXTRAVALUE as set forth above.
13.8 The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of the party's rights to subsequently enforce the provision. The remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.
EXTRAVALUE USAGE GUIDELINES
1.You may use any buttons, banners, text links or search forms (herein "the Creative") solely for the purpose authorized herein by EXTRAVALUE and only in compliance with the specifications, directions, information and standards supplied by EXTRAVALUE and modified by EXTRAVALUE from time to time.
2.You agree to comply with any requirements established by EXTRAVALUE concerning the style, design, display of the Creative; to correctly use the trademark symbol ™ or registration symbol ¨ with every use of the trademarks, service marks and/or tradenames as part of the Creative as instructed by EXTRAVALUE; to use the registration symbol ¨ upon receiving notice from EXTRAVALUE of registration of any trademarks, service marks and/or tradenames that are part of the Creative.
3.You may not alter the Creative in any manner, or use the Creative in any manner that may dilute, diminish, or otherwise damage EXTRAVALUE's rights and goodwill in any EXTRAVALUE trademark, tradename and/or service mark that are part of the Creative.
4.You may not use the Creative in any manner that implies sponsorship or endorsement by EXTRAVALUE of services and products other than those provided by EXTRAVALUE.