Affiliate Program Terms and Conditions
This Master Agreement ("Agreement") is made between Norton LLC d/b/a Wolfgang's Vault ("Wolfgang's Vault" or "Merchant") and [_____________] ("Partner").
PARTICIPATION IN WOLFGANG'S VAULT AFFILIATE PROGRAM
Participation in the Wolfgang's Vault Affiliate Program ("Program") requires that Partner is a member of The LinkShare Network and that Partner agrees to The LinkShare Network's membership agreements. If Partner is not a member of The Linkshare Network, Partner must complete a registration form to join The LinkShare Network and then read and agree to this Agreement. Partner's failure to enter into or adhere to any such required agreements shall result in immediate termination of this Agreement.
Once Partner is accepted into the Program, Partner will be able to participate in the Program subject to the terms and conditions of this Agreement.
EVALUATION AND ENROLLMENT OF PARTNER
To begin the enrollment process, Partner must submit a complete Program application ("Application"). Submission of Partner's Application to the Program implies acceptance of the terms set forth in this Agreement. Wolfgang's Vault will evaluate Partner's Application and will notify Partner of Partner's acceptance or rejection.
Wolfgang's Vault reserves the right to accept or reject Partner's application if Wolfgang's Vault determines (in its sole discretion) that Partner's website(s) ("Site") is unsuitable for the Program. Unsuitable sites include, but are not limited to, those that:
- Infringe trademark rights of Wolfgang's Vault or any third party or otherwise violate the rights of any third party;
- Contain sexually explicit materials;
- Contain hate, violent, offensive, etc. content;
- Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, etc.;
- Promote illegal activities or otherwise violate any applicable laws, including those targeting "spyware," "adware" or unsolicited commercial email;
- Violate any intellectual property rights, including, but not limited to, copying text or images from Wolfgang's Vault's websites;
- Otherwise are considered offensive or inappropriate at Wolfgang's Vault's sole discretion.
Once Wolfgang's Vault accepts Partner's Application, Partner will be provided access to Wolfgang's Vault's affiliate gateway located on The LinkShare Network for use in managing Partner's Program account. If Wolfgang's Vault rejects Partner's Application, Partner is welcome to reapply to the Program at a later time unless Wolfgang's Vault elects to permanently reject a particular partner based on the initial Partner's Application.
Partner and Wolfgang's Vault are each enrolled in The LinkShare Network.
Partner and Wolfgang's Vault each desire to establish the general terms and conditions that shall govern advertising and commission arrangements between Partner and Wolfgang's Vault which result from their participation in The LinkShare Network.
TERMS AND CONDITIONS
In consideration of the promises set forth below, the parties agree as follows:
1. Offers and Engagements.
1.1. From time to time, Wolfgang's Vault may post on The LinkShare Network offers to pay to other participants a specified commission in return for certain advertising services leading to a Qualifying Link (defined below). If such offers receive an identification number from The LinkShare Network they shall be deemed to be an "Offer" for purposes of this Agreement. The term "Offer" shall also include any counter-offers resulting from an Offer.
1.2. If an Offer made by one party is accepted by the other party in accordance with the Offer's terms via The LinkShare Network, an "Engagement" will have been formed. Each Engagement shall have the same identification number as the original Offer that lead to the Engagement and shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Engagement and the terms of this Agreement, the terms of the Engagement shall govern.
1.3. At any time prior to Partner providing a Qualifying Link, Wolfgang's Vault may with or without notice (a) change, suspend or discontinue any aspect of an Offer or an Engagement or (b) remove, alter, or modify any graphic or banner ad submitted by Wolfgang's Vault for an Offer or an Engagement. Partner agrees to promptly implement any request from Wolfgang's Vault to remove, alter or modify any graphic or banner ad submitted by Wolfgang's Vault that is being used by Partner as part of an Engagement.
2. Partner's Responsibilities.
2.1. Partner will link its Site to areas within Wolfgang's Vault's website located at www.wolfgangsvault.com ("Wolfgang's Vault's Site") using special URLs specified in the Engagement (the "Required URLs"). Partner may post as many links to the Required URLs and the rest of Wolfgang's Vault's Site as it likes on Partner's Site. The position, prominence and nature of links on the Partner's site shall comply with any requirements specified in the Engagement and this Agreement, but otherwise will be in the discretion of Partner. It is Partner's sole responsibility to set up and maintain Partner's Site and the URLs connecting Partner's Site with Wolfgang's Vault's Site.
2.2. Wolfgang's Vault may at any time, in Wolfgang's Vault's sole discretion, require that Partner change the nature, position and/or prominence of any URL on Partner's Site or cease use of URLs on Partner's Site. Partner shall comply with any such requirements.
2.3. Partner agrees not to make any representations, warranties or other statements concerning Wolfgang's Vault, Wolfgang's Vault's site, any of Wolfgang's Vault's products or services, or Wolfgang's Vault's site policies, except as expressly authorized by the Engagement.
2.4. Partner is responsible for notifying Wolfgang's Vault and The LinkShare Network of any malfunctioning of the Required URLs or other problems with Partner's participation in the Engagement. Wolfgang's Vault will respond promptly to all concerns upon notification by Partner.
3.1. Wolfgang's Vault agrees to pay Partner the commission specified in the Engagement if Wolfgang's Vault sells to a visitor to Wolfgang's Vault's Site (a "Customer") a product or service that is the subject of the Engagement and if that Customer has accessed Wolfgang's Vault's Site and purchased the product or service via a Qualifying Link.
3.2. A "Qualifying Link" is a link from Partner's site to Wolfgang's Vault's Site using one of the Required URLs or any other URL provided by Wolfgang's Vault for use in The LinkShare Network if it is the last link to the Wolfgang's Vault's site that the Customer uses during a Session where a sale of a product or a service to Customer occurs. A "Session" is the period of time beginning from a Customer's initial contact with Wolfgang's Vault's site via a link from the Partner's site and terminating when the Customer either returns to Wolfgang's Vault's Site via a link from a site other than Partner's site or the Engagement expires or is terminated.
3.3. Wolfgang's Vault shall have the sole right and responsibility for processing all orders made by Customers. Partner acknowledges that all agreements relating to sales to Customers shall be between Wolfgang's Vault and the Customer.
3.4. All determinations of Qualifying Links and whether a commission is payable will be made by The LinkShare Network and will be final and binding on both Wolfgang's Vault and Partner. Prices for the products will be set solely by Wolfgang's Vault in its sole discretion.
3.5. Commissions earned pursuant to this Section shall be determined by each Engagement as specified on The LinkShare Network. In Wolfgang's Vault's sole discretion, Wolfgang's Vault may establish a fixed percent fee or other special higher or lower commission rates with respect to certain promotions or otherwise modify the commission structure at any time.
3.6. Wolfgang's Vault will pay Partner commissions on a calendar monthly basis. Wolfgang's Vault, or an approved manager (e.g. LinkShare), will send Partner a check for the commissions earned through Qualifying links that were shipped during that month, less any taxes that Wolfgang's Vault is required to withhold. Notwithstanding anything to the contrary, if the total Commissions payable to Partner for any month are less than $1.00, Wolfgang's Vault may retain Partner's Commissions until the total Commissions due to Partner are at least $1.00 or (if earlier) until this Agreement is terminated. If a product that generated a commission is returned or cancelled, Wolfgang's Vault will deduct the corresponding fee from Partner's monthly payment or next monthly payment. If there is no subsequent payment, Wolfgang's Vault will send Partner an invoice due in ten (10) days for the canceled fee.
4. Ownership and Licenses.
4.1. 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.
4.2. Wolfgang's Vault grants Partner a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology provided by Wolfgang's Vault and posted on The LinkShare Network interface solely for the purpose of creating links from Partner's Site to Wolfgang's Vault's Site during Engagements. Except as expressly set forth in this Agreement or permitted by applicable law, Partner may not copy, distribute, modify, reverse engineer, or create derivative works from any of Wolfgang's Vault's names, logos, trademarks, service marks, trade dress or proprietary technology. Any good will resulting from Partner's use of Wolfgang's Vault's name, logos, trademarks, service marks, and trade dress will inure solely to the benefit of Wolfgang's Vault and will not create any right, title, or interest for Partner. Partner shall not and is not given the right to sublicense, assign or transfer any license for the use of Wolfgang's Vault's name, logos, trademarks, service marks, trade dress or proprietary technology. Any attempt to transfer the license provided herein is void.
4.3. Partner may use only the logos, trademarks, service marks, trade dress, banners, text links, coupon codes, promotions, product links, etc. ("Creative") that are provided by Wolfgang's Vault and posted in the LinkShare interface. Partner shall not use the Creative in connection with any activity that disparages Wolfgang's Vault, or its products or services, or that damages the reputation for quality inherent in the same. The use of Creative that is posted on other sites, found in other emails or other sources, manipulated in any way or derived from any means besides the The LinkShare Network interface is not permitted. If Partner does not fully comply with this provision Wolfgang's Vault may withhold commissions, immediately terminate this Agreement and/or permanently remove Partner from the program.
4.4. Partner's use of Wolfgang's Vault's name, logos, trademarks, service marks, and trade dress pursuant to Section 4.2 and 4.3 must be in a manner that is clearly less prominent than that of Partner's name, logos, trademarks, service marks, trade dress, products and/or site name. Partner is prohibited from creating an impression that there is an association or affiliation between Wolfgang's Vault and Partner beyond the arrangement outlined in this Agreement.
4.5. Partner shall always maintain the quality of its services at a level satisfactory to Wolfgang's Vault. Wolfgang's Vault shall have the right to review Partner's activities related to this Agreement. If at any time Wolfgang's Vault deems that Partner's activities are inconsistent with this Agreement, Wolfgang's Vault will notify Partner of the inconsistent activity or terminate the Agreement immediately.
4.6. Partner grants Wolfgang's Vault a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Partner solely for co-branding purposes or as a return link from Wolfgang's Vault's site to Partner's site. Wolfgang's Vault will remove such graphic or banner ad upon Partner's request.
5. Prohibited Activities
5.1. Partner shall not at any time generate sales or traffic by bidding on Wolfgang's Vault's trademarked terms/words as keywords in Google Adwords, Yahoo Search Marketing (formerly Overture), or any other paid search programs, except with expressed written permission of Wolfgang's Vault. Trademarked terms included but not limited to:
WHERE LIVE MUSIC LIVES
Partner may use non-trademarked terms/words as keywords in paid search programs, but must identify itself as an affiliate by including "affiliate" of "aff" in its paid search copy or title if the URL displayed is wolfgangsvault.com or any reference is made to Wolfgang's Vault or Wolfgang's Vault. Violation of said conditions will result in immediate termination of this Agreement.
5.2. Partner shall not send any emails, directly or indirectly, that advertise or promote Wolfgang's Vault, it products, services, web sites, or Offers without Wolfgang's Vault's prior express written consent. Partner shall not send any unsolicited commercial e-mail or other unsolicited online communications. Partner hereby represents that it will comply with all laws, rules, regulations, and ordinances relating to the sending of commercial emails, including, but not limited to, the federal CAN-SPAM Act of 2003. In addition, Partner shall not generate or send any material advertising or promoting any Wolfgang's Vault products or services via facsimile or engage in any telemarketing activities with respect to Wolfgang's Vault's products or services.
5.3. Except as otherwise set forth in this Agreement, Partner shall not use Wolfgang's Vault's name, trademarks, service marks or any derivations or variations thereof in any manner, including without limitation, (a) in metatags, (b) in hidden text or source code or (c) in Partner's domain name or any other part of Partner's universal record locator (URL).
5.4. Except as expressly authorized by this Agreement, Partner shall not use, the names "Wolfgang's Vault" or "wolfgangsvault.com" (either alone or in conjunction with or as part of any other word or name) or any other trademark, service mark, logo, or trade dress in any advertisement, publicity or promotion on Partner's behalf, to express or imply any endorsement by Wolfgang's Vault of any services provided by Partner, or in any other manner whatsoever.
6.1 Except as required by any applicable laws, Partner shall not disclose to any third party confidential or proprietary information that Wolfgang's Vault or its representatives make available to partner or its representatives in connection with this Agreement.
6.2 Wolfgang's Vault shall own and retain all right, title and interest in all names, addresses and other identifying information of customers visiting Wolfgang's Vault's Site ("Customer Data") which is collected by Wolfgang's Vault, including without limitation, customers who access Wolfgang's Vault's Site through Qualifying Links, and Partner shall have no right to use any such Customer Data.
6.3. Wolfgang's Vault may identify Partner or Partner's Site as a participant in the Program without providing Partner prior notice or obtaining Partner's specific written consent. Such identification may be oral, written, or electronic, and may include, but is not limited to, public announcements, promotional materials, internal and external reports, and public filings.
7. Term and Termination.
7.1. The term of this Agreement will begin upon Wolfgang's Vault's acceptance of Partner's Program Application and will end when terminated by either party.
7.2. Either Partner or Wolfgang's Vault may terminate any Engagement at any time by deleting their acceptance of the Engagement through The LinkShare Network. Termination of an Engagement shall not terminate this Agreement or any other Engagement.
7.3. Either Partner or Wolfgang's Vault may terminate this Agreement at any time and for any reason, with or without cause, by giving the other party written or electronic notice of termination. Termination of this Agreement shall also terminate any outstanding Engagements. However, all rights to payment, causes of action and any provisions, which by their terms are intended to survive termination, shall survive termination of this Agreement.
7.4. Partner is only eligible to earn commissions on sales occurring during the term of this Agreement, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. Wolfgang's Vault may withhold Partner's final payment for a reasonable time to ensure that the correct amount is paid. If Wolfgang's Vault has reason to believe Partner's orders/referrals were obtained fraudulently or through misrepresentation, Wolfgang's Vault shall have the right to withhold payment of commissions pending an investigation of the suspected fraud or misrepresentation.
7.5. Upon termination of this Agreement, (a) all licenses hereunder shall terminate and (b) Partner shall immediately remove form Partner's Site and cease using Wolfgang's Vault's name, logos, trademarks, service marks, trade dress, proprietary technology and any Creative.
8.1. Each party represents to the other that it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby.
8.2. Partner represents that the contents of its Site and any domain names associated with that Site do not (a) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) violate any applicable law, statute, ordinance or regulation; (c) contain defamatory or libelous material; (d) contain lewd, pornographic, or obscene material; (e) violate any laws regarding unfair competition, anti-discrimination, or false advertising; (f) promote violence or contain hate speech; or (g) contain viruses, trojan horses, worms, time bombs, cancelbots, or other similar harmful or deleterious programming routines.
8.4. EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9.1. Partner agrees to indemnify, defend and hold harmless Wolfgang's Vault and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.
10. LinkShare Required Provisions.
10.1. Wolfgang's Vault and Partner jointly and severally hereby agree to indemnify, defend, and hold harmless The LinkShare Network and LinkShare Corporation and its affiliates, officers, directors, employees and agents (collectively, "LinkShare") 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 any Offer, Engagement, any other matter related to this Agreement or the subject matter hereof any dispute relating thereto.
10.2. The parties agree that LinkShare may rely on any data, notice, instruction or request furnished to LinkShare by either party which is reasonably believed by LinkShare to be genuine and to have been sent or presented by a person reasonably believed by LinkShare 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 LinkShare, LinkShare may consult with and use counsel of its own choice in connection with such dispute and the reasonable fees and disbursements of LinkShare's counsel shall be within the costs and disbursements covered by the indemnity specified in Section 8.1 above.
10.3. The parties acknowledge and agree that this Agreement and the Engagements are only made possible due to LinkShare and that the parties shall not, for the duration of this Agreement and for twelve (12) months thereafter, enter into any advertising, collaborations or other commercial arrangements with each other in connection with their sites on the World Wide Web except via The LinkShare Network.
11. Limitation of Liability.
11.1. In no event shall either party be liable to the other party for any direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.
11.2. The parties agree that The LinkShare Network and LinkShare Corporation and its affiliates, officers, directors, employees and agents shall not be liable to either party for any direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.
12.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
12.2. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior or contemporaneous written or oral agreements or representations between the parties.
12.3. Wolfgang's Vault may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement on the LinkShare Site or by giving Partner notice of the modification through the LinkShare Network or through a subsequent written agreement between the parties. IF ANY MODIFICATION IS UNACCEPTABLE TO PARTNER, ITS ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. PARTNER'S CONTINUED COMPLIANCE WITH THIS AGREEMENT FOLLOWING WOLFGANG'S VAULT'S POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON ITS SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
12.4. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of California. Any action to enforce this Agreement shall be brought in the federal or state courts located in California. Partner may send official correspondence to Wolfgang's Vault by addressing correspondence via registered mail to 149 Bluxome St. San Francisco, CA 94107.
12.5. Wolfgang's Vault's failure to enforce Partner's strict performance of any provision of this Agreement shall not constitute a waiver of Wolfgang's Vault's right to subsequently enforce such provision or any other provision of this Agreement.
12.6. This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution may be achieved in any format convenient to the parties.
12.7. The provisions of this Agreement are severable and the invalidity of any provision of this Agreement shall not affect the validity of the remainder of the provisions hereof. In the event any provision contained herein shall be deemed unenforceable or contrary to law, such provision shall be curtailed and limited, but only to the extent necessary to bring it within the legal requirements, and all other provisions herein shall remain in full force and effect.
In Witness whereof, the parties authorized representatives have executed this Master Agreement as of the date of the last signature set forth below.
|Norton, LLC d/b/a Wolfgang's Vault||Partner|
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