This Affiliate Agreement ("Agreement") is made between Coastal Contacts Inc. ("Coastal Contacts") and you ("Affiliate").
BACKGROUND
Affiliate and Coastal Contacts are each enrolled in The LinkShare Network.
Affiliate and Coastal Contacts each wish to establish the general terms and conditions which shall govern advertising and commission arrangements between Affiliate and Coastal Contacts which result from their participation in The LinkShare Network.
TERMS AND CONDITIONS
In consideration of the promises set forth below, we agree as follows:
1. Offers and Engagements
1.1 From time to time, Coastal Contacts may post on The LinkShare Network offers to pay to affiliates a specified commission in return for certain advertising services leading to a Qualifying Link (defined below). If such bids receive an identification number from The LinkShare Network they shall be deemed to be an "Offer" for the 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 led 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 Affiliate providing a Qualifying Link, Coastal Contacts 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 Coastal Contacts through the LinkShare Network or directly for an Offer or an Engagement. Affiliate agrees to promptly implement any request from Coastal Contacts to remove, alter or modify any graphic or banner ad submitted by Coastal Contacts that is being used by Affiliate as part of an Engagement.
1.4 Affiliate shall provide true, complete and accurate information to Coastal Contacts regarding Affiliate's legal name, address, phone number, email address, URL and any other information necessary to conduct the Engagement ("Affiliate Particulars"). If Affiliate fails to provide true, complete and accurate Affiliate Particulars to Coastal Contacts, Coastal Contacts may terminate the Engagement and this Agreement immediately.
2. Affiliate's Responsibilities
2.1 Affiliate will link its site to areas within Coastal Contacts' site using special URLs specified in the Engagement (the "Required URLs"). Affiliate may post as many links to the Required URLs and the rest of Coastal Contacts' site as it likes on Affiliate's site. The position, prominence and nature of links on the Affiliate's site shall comply with any requirements specified in the Engagement, but otherwise will be in the discretion of Affiliate.
2.2 Affiliate agrees not to make any representations, warranties or other statements concerning Coastal Contacts, Coastal Contacts' site, any of Coastal Contacts' products or services, or Coastal Contacts' site policies, except as expressly authorized by the Engagement.
2.3 Affiliate is responsible for notifying Coastal Contacts and The LinkShare Network of any malfunctioning of the Required URLs or other problems with Affiliate's participation in the Engagement. Coastal Contacts will respond promptly to all concerns upon notification by Affiliate.
2.4 Customers who click through to Coastal Contacts' site through a Qualifying Link shall experience Coastal Contacts' site exactly as presented by Coastal Contacts. Without limiting the foregoing, Affiliate shall not "frame" users' access to Coastal Contacts' site in any manner, including, without limitation, with advertisements, branding or other material unless Coastal Contacts has specifically authorized such "framing" in the terms of the Engagement.
2.5 Affiliate sites that use pop ups/unders for the purpose of aiding shoppers may not use such pop ups/unders to set or overwrite a commission tracking cookie, deceive the shopper or redirect the shopper from Coastal Contacts' site at any time for any purpose. Pop ups/unders must be free of any kind of link.
2.6 Affiliate shall not set tracking cookies on the Customer's computer in any way (i.e. only direct clicks on a Qualifying Link by a site visitor may be used as a way to initiate the creation or overwriting of a tracking cookie).
2.7 Affiliate's web site shall not contain or promote any of the following:
(a) material violating intellectual property rights;
(b) sexually explicit material;
(c) hate/violent/offensive content;
(d) discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
(e) illegal activities or otherwise violate any applicable laws; and
(f) material otherwise considered offensive in Coastal Contacts' sole discretion.
If Affiliate's web site contains any of the above content, Coastal Contacts may in its sole discretion, terminate the Agreement.
2.8 Affiliate shall update Coastal Contacts within 14 days of any change to the Affiliate Particulars.
3. Commissions
3.1 Coastal Contacts agrees to pay Affiliate the commission specified in the Engagement if: (i) Coastal Contacts sells to a visitor to Coastal Contacts' site (a "Customer") a product or service that is the subject of the Engagement, and (ii) that Customer has accessed Coastal Contacts' site and purchased the product or service via a Qualifying Link.
3.2 A "Qualifying Link" is a link from Affiliate's site to Coastal Contacts' using one of the Required URLs or any other URL provided by Coastal Contacts for use in The LinkShare Network if it is the last link to Coastal Contacts' site that the Customer uses during a Session where a sale of a product or a service to Customer occurs.
3.3 A "Session" is the period of time beginning from a Customer's initial contact with Coastal Contacts' site via a link from the Affiliate's site and terminating when the Customer either returns to Coastal Contacts' site via a link from a site other than Affiliate's site or the Engagement expires or is terminated.
3.4 Coastal Contacts shall have the sole right and responsibility for processing all orders made by Customers. Affiliate acknowledges that all agreements relating to sales to Customers shall be between Coastal Contacts and the Customer.
3.5 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 Coastal Contacts and Affiliate. Prices for the products will be set solely by Coastal Contacts in its discretion.
3.6 If, pursuant to the terms of Coastal Contacts' return policy, a Customer returns or cancels an order for which Affiliate would otherwise be entitled to a commission, the associated commission will be deducted from the commissions paid to Affiliate. In the case that commissions for returned or cancelled orders exceed the balance of commissions to be paid to Affiliate, Affiliate may be billed for such excess by Coastal Contacts. If Affiliate is determined, in the sole discretion of Coastal Contacts, to be placing orders and then returning them in order to earn commissions, Coastal Contacts may terminate the Engagement and this Agreement immediately and pursue other legal recourses, if applicable.
3.7 If Affiliate is deemed, in the sole discretion of Coastal Contacts, to be placing fraudulent orders in order to earn commissions, Coastal Contacts may terminate the Engagement and this Agreement immediately and Coastal Contacts will not be liable to pay any further commissions including any outstanding commissions to Affiliate. If Coastal Contacts has paid a commission on a transaction that it later determines to be fraudulent, Affiliate shall pay back such commission to Coastal Contacts upon notice by Coastal Contacts.
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 Coastal Contacts grants Affiliate 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 Affiliate's site solely for the purpose of creating links from Affiliate's site to Coastal Contacts' site during Engagements. Notwithstanding, Affiliate may not edit or modify in any manner the name, logos, trademarks, service marks, trade orders and proprietary technology of Coastal Contacts. Except as expressly set forth in this Agreement or permitted by applicable law, Affiliate may not copy, distribute, modify, reverse engineer, or create derivative works from the same. Affiliate 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 Affiliate may use only the logos, trademarks, service marks, trade dress, banners, text links, coupon codes, etc. ("Branding") that is provided by Coastal Contacts or is posted in the LinkShare interface. Affiliate shall not use the Branding in connection with any activity that disparages Coastal Contacts, or its products or services, or that damages the reputation for quality inherent in the same. The use of Branding that is posted on other sites, found in other emails or other sources, manipulated in any way or derived from any means besides the LinkShare interface is not permitted. If Affiliate does not fully comply with this provision, Coastal Contacts may withhold commissions, immediately terminate this Agreement and/or permanently remove Affiliate from the program.
4.4 Affiliate shall always maintain the quality of its services at a level satisfactory to Coastal Contacts. Coastal Contacts shall have the right to review Affiliate's activities related to this Agreement.
4.5 Affiliate shall immediately cease using Coastal Contacts' name, logos, trademarks, service marks, trade dress, proprietary technology and any Branding upon the termination or expiration of this Agreement.
5. Trademark Bidding and Keywords
5.1 Affiliate shall not bid on Coastal Contacts' name, brand, URL or any variation of it. Affiliate also shall not bid on any other contact lens merchant name, brand, or URL including, but not limited to, the following or any variation thereof:
5.2 Affiliate may use all keywords that do not contravene the trademark bidding terms set forth above in section 5.1, however, Affiliate must bid at least two positions below Coastal Contacts. For example, if Coastal Contacts is in 3rd place on a paid click, Affiliate must be in 5th place or lower. Affiliate may bid on generic terms such as "contact lens" as well as contact lens brands such as "Acuvue".
6. Confidentiality
6.1 Except as otherwise provided in this Agreement or with Coastal Contacts' prior written consent, Affiliate agrees that all information including, without limitation, the terms of this Agreement, Coastal Contacts' business and financial information, its customer lists, and its pricing and sales information, shall remain strictly confidential and shall not be utilized, directly or indirectly, by Affiliate 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 Affiliate. Notwithstanding the foregoing, Affiliate may deliver a copy of any such information: (a) 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.
6.2 Coastal Contacts shall own and retain all right, title and interest in all names, addresses and other identifying information of customers visiting Coastal Contacts' sites ("Customer Data") which is collected by Coastal Contacts, including without limitation, customers who access Coastal Contacts' sites through Qualifying Links, and Affiliate shall have no right to use any such Customer Data.
7. Privacy
7.1 Affiliate shall not send out any emails, directly or indirectly, that advertise or promote Coastal Contacts, its products, services, web sites or Offers without Coastal Contacts' prior express written consent.
7.2 Affiliate agrees not to send any email or other form of electronic message or advertisement containing Coastal Contacts' name, product or service, web site address, metatag or any other type of identifier to any recipient unless the recipient has directly consented to receive such communication from Affiliate or Affiliate has a pre existing business relationship with the recipient. In addition, Affiliate agrees to provide a recipient of such communication with the ability to "opt out" of further communications from Affiliate either by calling a toll free number or by sending an "unsubscribe" email to Affiliate.
8. Termination
8.1 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.
8.2 Either party may terminate this Agreement at any time, for any reason, provided that they provide at least five day's prior written notice of such termination to the other party and The LinkShare Network. In addition, Coastal Contacts shall be entitled to terminate this Agreement immediately if Affiliate materially breaches or violates any terms or conditions of this Agreement, or if Coastal Contacts determines, in its sole discretion, that there are technical or operational issues (e.g. interruptions caused by or shifts in online/Internet technology) that adversely affect compliance with this Agreement, or the orders/referrals were obtained fraudulently or through misrepresentation, in which case Coastal Contacts reserves the right to withhold payment of commissions pending an investigation of the suspected fraud or misrepresentation. 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.
9. Representations
9.1 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.
9.2 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 MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. Indemnification
10.1 Affiliate hereby agrees to indemnify, defend and hold harmless Coastal Contacts 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.
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.
12. General
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 has been made in and shall be construed and enforced in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein. Any action to enforce this Agreement shall be brought in the courts located in British Columbia. If you need to send official correspondence, send it via registered mail to Coastal Contacts Inc., Suite 320, 2985 Virtual Way, Vancouver, B.C., V5M 4X7, Attention: Chief Executive Officer or Executive Assistant.
12.3 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.
12.4 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.
In witness whereof, the parties have entered into this Agreement as of the date of the creation of the first Engagement between the parties.
By clicking on the "I ACCEPT" button below, you are agreeing to be bound by the terms and conditions of this Agreement. Please read this entire agreement carefully before accepting its terms.
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