MASTER AGREEMENT
This Master Agreement is made between Sierra Trading
Post and its affiliate partners.
BACKGROUND
Partner and Sierra Trading Post are each enrolled in The LinkShare
Network™.
Partner and Sierra Trading Post each desire to establish the
general terms and
conditions which shall govern advertising and commission arrangements
between Partner and Sierra Trading Post which result from their
participation in
The LinkShare Network™.
TERMS AND CONDITIONS
To begin the enrollment process, you need to submit a complete
Program application at the LinkShare Site located at
www.linkshare.com. We will evaluate your application and will
notify
you through the LinkShare Site of your acceptance or rejection.
We may
reject your application for any reason, including, but not limited
to our
determination, in our sole discretion, that your Site is unsuitable
for the
Program. Unsuitable Sites include, but are not limited to, those
that: (a)
contain or link to nudity or pornography or promote sexually
explicit
materials; (b) promote violence; (c) promote discrimination
based on race,
sex, religion, nationality, disability, sexual orientation,
or age; (d) promote
illegal activities; (e) infringe our intellectual property rights
or those of any
third party or otherwise violate the rights of any third party;
(f) contain, in
our sole judgment, material that is defamatory, fraudulent,
or harassing to
us or any third party; (g) promote the use of any pyramid or
similar schemes;
or (h) include "Sierra Trading Post®" or variations
or misspellings thereof,
in their domain names or in any metatags or other hidden text.
If we accept your application, LinkShare will provide you with
access to
its affiliate gateway on the LinkShare Network. You should also
note that
if we accept your application and your Site is determined in
our sole
discretion to be unsuitable for the Program, we may terminate
this
Agreement at any time. If we temporarily reject your application,
you are welcome to reapply to the Program after 14 days. If
we
permanently reject your application, you are unable to reapply
to
the Program.
In consideration of the promises set forth below, we agree
as follows:
1. Offers and Engagements.
1.1. From time to time, Sierra Trading Post 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,
Sierra Trading Post 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 Sierra Trading Post for an Offer or an Engagement. Partner
agrees to promptly
implement any request from Sierra Trading Post to remove, alter
or modify any graphic
or banner ad submitted by Sierra Trading Post 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 Sierra Trading
Post'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 Sierra Trading Post'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,
but
otherwise will be in the discretion of Partner.
2.2. Partner agrees not to make any representations, warranties
or other statements
concerning Sierra Trading Post, Sierra Trading Post's site,
any of Sierra Trading Post's products or services, or Sierra
Trading Post's site policies, except as expressly authorized
by the Engagement.
2.3. Partner is responsible for notifying Sierra Trading Post
and The LinkShare Network™
of any malfunctioning of the Required URLs or other problems
with Partner's
participation in the Engagement. Sierra Trading Post will respond
promptly to all concerns
upon notification by Partner.
2.4. Partner agrees to abide by the Sierra Trading Post privacy
policy posted on
Sierra Trading Post's site here:
http://www.sierratradingpostaffiliates.com/terms.htm
2.5. Partner agrees that it shall in no way engage in cybersquatting
tactics. This includes but is not limited to domain squatting,
trademark squatting, and misspellings of trademarked names.
2.6 Partner agrees that they will not engage in any keyword
bidding on Sierra Trading Post's
trademark names, misspellings or similar spellings, which include the following:
sierra trading post, sierratradingpost, sierratradingpost.com,
sierra trading
2.7 Partner agrees that they will not engage in any email activity
that is not in accordance
with the U.S. Federal Government’s Can Spam Act of 2003.
2.8 Partner agrees that they will not market the names and/or
products of Sierra Trading Post’s restricted vendors.
An updated list of restricted vendors is maintained at this
web address:
http://www.sierratradingpostaffiliates.com/restricted-vendors.htm
2.9 Partner agrees that they will not engage in any keyword
bidding on the trademarked names of Sierra Trading Post's competitors
in an attempt to direct traffic to websites owned by Sierra
Trading Post.
2.10 Partner agrees to not market any erroneous and/or unauthorized
coupon codes. Affiliate will forfeit any commission/s earned
through the use of unauthorized coupon codes via manual adjustment
to the affiliate invoice at the end of each pay period.
2.11 Partner agrees that they will not use any Sierra Trading
Post vendor name brands in their website domain name (for example,
www.danskooutlet.com). The current list of Sierra Trading Post’s
vendors can be found at: http://www.sierratradingpost.com/search/callsearchengine.asp?searchtype=brand.
3. Commissions.
3.1. Sierra Trading Post agrees to pay Partner the commission
specified in the Engagement
if Sierra Trading Post sells to a visitor to Sierra Trading
Post's site (a "Customer") a product or
service that is the subject of the Engagement and if that Customer
has accessed
Sierra Trading Post'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 Sierra Trading Post's using one
of the Required URLs or any other URL provided by Sierra Trading
Post for use in
The LinkShare Network™ if it is the last link to the Sierra
Trading Post'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 Sierra Trading Post's site via a link from the Partner's
site and terminating when
the Customer either returns to the Sierra Trading Post's site
via a link from a site other
than Partner's site or the Engagement expires or is terminated.
3.3. Sierra Trading Post 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 Sierra Trading
Post 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 Sierra Trading Post and Partner. Prices for
the products will be set
solely by Sierra Trading Post in its discretion.
3.5 No commission may be earned for purchases made from other
stores
operated by third parties that may be accessible from Partner's
site.
3.6 Commission may be earned only on credit card or gift card transactions.
Purchases
paid by other methods are not
eligible for commissions. Additionally, Sierra Trading Post
does not pay commission on the sale of giftcards.
3.7 In the event Sierra Trading Post, in its sole discretion,
suspects fraud or other
unlawful conduct by partner or by any third party accessing
Sierra Trading Post's
site through links on Partner's site, Sierra Trading Post shall
be entitled to suspend
or deny payments in whole or in part to Partner in Sierra Trading
Post's sole
discretion.
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. Sierra Trading Post grants Partner a revocable, non-exclusive,
worldwide
license to use, reproduce and transmit the name, logos, trademarks,
service marks, trade dress and proprietary technology, as designated
in the Engagement or during the registration process in The
LinkShare
Network™, on Partner's site solely for the purpose of
creating links
from Partner's site to Sierra Trading Post'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 the same. Partner may not sublicense,
assign
or transfer any such licenses for the use of the same, and any
attempt
at such sublicense, assignment or transfer is void.
4.3. Partner grants Sierra Trading Post 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 Sierra Trading Post's site to Partner's site. Sierra
Trading Post will remove such
graphic or banner ad upon Partner's request.
5. Termination.
5.1. Either party 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.
6. Representations.
6.1. Each party represents to the other that (a) it has the
authority to enter
into this Agreement and sufficient rights to grant any licenses
granted hereby,
and (b) any material which is provided to the other party and
displayed on the
other party's site will not (i) infringe on any third party's
copyright, patent,
trademark, trade secret or other proprietary rights or right
of publicity or
privacy; (ii) violate any applicable law, statute, ordinance
or regulation;
(iii) be defamatory or libelous; (iv) be lewd, pornographic
or obscene; (v)
violate any laws regarding unfair competition, anti-discrimination
or false
advertising; (vi) promote violence or contain hate speech; or
(vii) contain
viruses, trojan horses, worms, time bombs, cancelbots or other
similar
harmful or deleterious programming routines.
6.2. 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 Sierra Trading Post ABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
7. Cross-Indemnification.
7.1. Each party hereby agrees to indemnify, defend and hold
harmless the
other party 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.
8. LinkShare Required Provisions.
8.1. Sierra Trading Post 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.
8.2. 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.
8.3. 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™.
9. Limitation of Liability.
9.1. 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.
9.2. 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.
10. General.
10.1. Each party shall act as an independent contractor and
shall have
no authority to obligate or bind the other in any respect.
10.2. The parties agree that The LinkShare Network™ and
LinkShare
Corporation are intended third party beneficiaries under this
Agreement.
10.3. This Agreement has been made in and shall be construed
and
enforced in accordance with the laws of the state of Sierra
Trading Post's
headquarters. Any action to enforce this Agreement shall be
brought
in the federal or state courts located in that state. If you
need to send
official correspondence, send it via registered mail to Sierra
Trading Post's
headquarters to the attention of Sierra Trading Post's legal
department.
10.4. 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.
10.5. 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.
