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Sunfitters Affiliate Agreement
Please read this Affiliate Program Agreement (the "Agreement") carefully before submitting your application ("Application") for participation in Sunfitters Affiliate Program (the "Affiliate Program"). This agreement is a binding contract between the individual submitting the Application or the entity on whose behalf the Application is being submitted ("you" and "your") and Sunfitters, LLC ("Sunfitters"). By submitting the Application, you hereby accept and agree to all of the terms and conditions set forth in this Agreement. The Agreement shall be effective only upon Sunfitters' acceptance of your Application, and your participation as, an affiliate in the Sunfitters Affiliate Program. By submitting an enrollment Application to Sunfitters, you certify that you have read and agree to be bound by the terms and conditions of this Agreement.
RECITALS
WHEREAS, Sunfitters has established an Affiliate Program for the purpose of (i) allowing affiliates to advertise and promote Sunfitters' products on their web sites, (ii) establishing links from affiliates' sites to Sunfitters' website for the purpose of allowing users of affiliate sites to purchase products from Sunfitters; and
WHEREAS, you desire to be accepted by Sunfitters as an affiliate in the Affiliate Program, and to advertise and promote Sunfitters' products on your web site and to allow users of your site to link to Sunfitters' site for the purpose of purchasing Sunfitters' products, among other things;
NOW, THEREFORE, in consideration of the covenants and premises contained herein, the parties agree as follows:
Incorporation of Preamble and Recitals
The above preamble and recitals are incorporated by reference in, and made part of, this Agreement.
Enrollment in the Affiliate Program
To enroll in the Affiliate Program, you must submit a complete Affiliate Program Application, which is found on Sunfitters' web site at "Sunfitters.com." Sunfitters will evaluate your application and will notify you via the e-mail address listed in your Application of its acceptance or rejection of you as an affiliate. Sunfitters may reject your application for any reason or for no reason in its sole discretion. Sunfitters will reject your application if it determines, in its sole discretion, that your site includes anything that is unlawful, harmful, threatening, defamatory, obscene, harassing, discriminatory, or otherwise objectionable. If Sunfitters rejects your application, you may reapply for participation in the Affiliate Program at any time.
Spyware
We will refuse all applications or signups from affiliates which we believe participate in spyware, adware or parasiteware techniques for driving traffic. We reserve the right to research and investigate affiliates and their activities and, at our own discretion, determine whether or not these practices are in place. Affiliates found in violation of this policy will be immediately terminated from the program and will forfeit all commissions.
Links
As an affiliate, Sunfitters will make available to you, via the Shareasale.com site, a variety of graphic and textual images (the "Images") that serve to identify your site as a member of the Affiliate Program and will establish links from your site to Sunfitters.com (the "Links"). You may, subject to the terms and conditions of this Agreement, display Links as often and in as many areas on your site as you desire. You shall cooperate fully with Sunfitters in establishing and maintaining Links. You may display in your site only those Images provided to you by Sunfitters. Sunfitters may discontinue use of or replace Images at any time and from time to time in its sole discretion. Upon request, you shall remove any Image from your site and replace it with a new Image provided by Sunfitters. All Links must be displayed prominently in relevant sections of your site. Links may be modified or expanded from time to time upon agreement between you and Sunfitters, however, the banner link code cannot at any time be modified by the affiliate, doing so will not allow proper reporting of traffic sent through such banner link code. Each Link connecting users of your site to an area of Sunfitters.com will in no way alter the look, feel, or functionality of Sunfitters.com. Sunfitters may monitor your site at any time and from time to time to determine if you are in compliance with the terms and conditions of this Agreement.
Sunfitters' Obligations
Sunfitters shall be responsible for providing all information necessary to allow you to make appropriate Links from your site to Sunfitters.com. Sunfitters shall (i) process all orders (which includes order entry, payment processing, shipping, handling cancellations and returns, and related customer service) from users who link from your site, (ii) track the volume and amount of sales generated by Links from your site, and (iii) provide information to affiliates regarding sales statistics.
Affiliate's Obligations
a. You will be solely responsible for the development, operation and maintenance of your site and for all materials that appear on your site, including, without limitation: the technical operation of your site and all related equipment; the accuracy and appropriateness of materials posted on your site; ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, but not limited to, copyrights, trademarks, privacy, or other personal or proprietary rights); ensuring that materials posted on your site are not libelous, defamatory, misleading, false or deceptive or otherwise illegal; ensuring that your site and your business practices do not include any of the activities of unsuitable sites listed in Section 2 above.
b. You agree to keep your Application updated with current and accurate information.
c. You agree to pay and be responsible for all costs and expenses you may incur in connection with the Affiliate Program or your performance under this Agreement.
d. Sunfitters is not obligated to make any representations, warranties or other statements concerning you, your site, any of your products or services, or your site policies.
Contests and Promotions
As an affiliate, provided you perform in accordance with this Agreement, you shall be entitled to participate in and promote on your site special promotions Sunfitters may offer, and, in connection therewith, such promotions shall be available to users of your site.
Commissions
Sunfitters shall pay you up to 10% commission for the purchase of beachwear, hats, footwear, sporting goods, outdoor beach accessories and other specially targeted sales made by users of your site who link to Sunfitters.com (a "Qualifying Purchase"). No commissions shall be paid for product that is returned for any reason or for which Sunfitters is unable to collect the purchase price of the product. No commissions shall be paid for shipping and handling fees; or for gift wrapping services. Commissions will be paid only on orders received during the term of this Agreement. Affiliates will be paid the respective commission amount depending on their order performance through the calendar year.
Commission Payment
Shareasale.com handles all commission payments. Please visit Shareasale.com for more information regarding minimum payouts and timing of payments.
Reports of Sales
You will be given a password and shall have the ability to enter a password-protected site to receive your sales statistics.
Policies and Pricing
a. Users who buy Sunfitters' products through the Affiliate Program are customers of Sunfitters. Accordingly, all of Sunfitters' policies (including prices and pricing policies), and operating procedures concerning customer orders, customer service, and product sales shall apply. Sunfitters may change its policies and operating procedures at any time. Sunfitters reserves the right to change prices of products at any time and from time to time. Except as may be permitted by Sunfitters you may not include price information in your product descriptions.
b. You understand and agree that Sunfitters shall be the sole owner of any and all data and information Sunfitters (or its representatives) obtains or gathers from, or in connection with, end users visiting or transacting business on the Sunfitters site or otherwise transacting business with Sunfitters, including without limitation, all transaction, usage and preference data.
Publicity
You shall not create, publish, distribute, or permit any written material that makes reference to Sunfitters or the Affiliate Program without first submitting such material to Sunfitters and receiving its written consent.
Licenses and Use of the Sunfitters.com Logos and Trademarks
a. Sunfitters grants you a limited, non-exclusive, non-transferable, revocable right to (i) access Sunfitters.com through the Links solely in accordance with the terms of this Agreement, and (ii) solely in connection with such Links, to use the Sunfitters.com trademark and logo and similar identifying material relating to Sunfitters (but only in the form(s) that they appear on Sunfitters' Shareasale.com pages) (collectively, the "Licensed Materials"), for the sole purpose of promoting Sunfitters products on your site. You may not copy, except as expressly set forth in this Agreement, distribute, alter, modify, reverse engineer, or create derivative works from the Licensed Materials. Sunfitters may revoke your license at any time by giving you written notice. Any goodwill arising out of your use of the Licensed Materials shall inure to the benefit of Sunfitters only.
b. You shall not make any specific use of any Licensed Materials for purposes other than promoting Sunfitters' products on your site. You agree not to use the Licensed Materials in a manner that is misleading or deceptive or disparages Sunfitters, its site, the Affiliate Program or Sunfitters' products or services or that otherwise portrays Sunfitters, in its discretion, in a negative light. Sunfitters reserves all rights in the Licensed Materials. At no time during the Term or thereafter will you challenge, or assist others in challenging, the validity of the Sunfitters Licensed Materials or the registration thereof or attempt to register any confusingly similar trademarks, service marks, logos, trade names or domain names. Except for the limited license set forth above in Subsection (a) of this Section 12, no license or other rights to the Sunfitters' Licensed Materials will be deemed granted to you hereunder or in connection with the Affiliate Program, by implication, estoppel or otherwise.
c. You grant to Sunfitters a non-exclusive license to use your names, titles, logos, and trademarks (the "Affiliate Trademarks"), to advertise, market, promote, and publicize in any manner your participation in the Affiliate Program, and/or Sunfitters' rights hereunder. Notwithstanding the foregoing, Sunfitters is not obligated to advertise, market, promote, or publicize your participation in the Affiliate Program, the existence of the Affiliate Program, or any other aspect of the Affiliate Program.
d. The licenses granted hereunder shall run concurrently with the term of this Agreement.
Obligations Regarding Your Site
You, at your sole cost and expense, shall develop, operate, and maintain your site and all materials that appear on your site, which development, operation and maintenance shall include, without limitation, technical operation of your site and all related equipment; creating and posting product reviews, descriptions, and references on your site and linking those descriptions to Sunfitters.com; assuring the accuracy and propriety of all materials and information posted on your site; ensuring that materials posted on your site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal, and all other actions necessary to operate and maintain your site.
Term and Termination
The term of this Agreement will begin as of the date Sunfitters notifies you that Sunfitters has accepted you as an affiliate and will end when terminated by either party. Either you or Sunfitters may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination.
Modification
Sunfitters may modify any of the terms and conditions contained in this Agreement at any time in its discretion. You will be notified of any changes via email by a change notice. If you do not agree to be bound by the terms and conditions of any modification to this Agreement, you may terminate this Agreement by giving written notice to Sunfitters. Your continued participation in the Affiliate Program following any notice of a modification of this Agreement shall constitute your binding acceptance of the Agreement as modified.
Relationship of Parties
You and Sunfitters are independent contractors, and nothing in this Agreement shall be construed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You have no authority to make or accept any offers or representations on behalf of Sunfitters. You may not make any statement, whether on your site or otherwise, that contradicts anything contained in this Section.
Disclaimers
Sunfitters makes no express or implied warranties or representations with respect to the Affiliate Program, Sunfitters.com, or any Sunfitters products sold through the Affiliate Program, including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of course of performance, dealing, or trade usage. Sunfitters makes no representation that the operation of Sunfitters.com will be uninterrupted or error free, and Sunfitters shall not be liable for the consequences of any interruptions or errors.
Representations and Warranties
You hereby represent and warrant that:
a. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
b. The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
c. You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant licenses to use your trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
d. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.
e. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to the Affiliate Trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
Confidentiality
Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning Sunfitters or you, respectively, or any other affiliate, provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliates. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
Limitation of Liability
SUNFITTERS SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF ITS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY AVAILABLE WITH RESPECT TO THIS AGREEMENT OR ANY BREACH BY SUNFITTERS HEREOF SHALL BE TO TERMINATE THIS AGREEMENT.
Indemnification
You shall indemnify and hold harmless Sunfitters and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that Sunfitters' use of the Affiliate Trademarks infringes any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to Sunfitters.
Sunfitters shall indemnify you against Losses that arise out of any claim that your use of the Images provided to you by Sunfitters infringe any rights of a third party; provided that the Images have not been modified by anyone other than Sunfitters.
Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT SUNFITTERS MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT POTENTIAL AFFILIATES ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTY, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
Governing Law
This Agreement will be governed by the laws of the United States and the Commonwealth of Massachusetts, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in the Commonwealth of Massachusetts, and you irrevocably consent to the exclusive jurisdiction of such courts.
Miscellaneous
You may not assign this Agreement, by operation of law or otherwise, without the prior written consent of Sunfitters. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. This Agreement contains the complete understanding between the parties pertaining to the subject matter hereof. Sunfitters' failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such a provision or any other provision of this Agreement. Should any one or more provisions of this Agreement be determined illegal or unenforceable by any court of competent jurisdiction, all other provisions shall remain effective.
Notices
All notices required under this Agreement shall be sent via United States mail, postage prepaid, addressed to the parties at the following addresses:
If to Sunfitters:
Sunfitters, LLC
Attn: Affiliate Manager
42 Elm Street Rear
Kingston, MA 02364
Facsimile No: 781-582-9501
If to Affiliate:
The address as set forth in the Affiliate Program Application.