Affiliation Program AgreementThis Agreement contains the complete terms and conditions that apply to an entity's participation in the Boulder Outdoor Center, Inc. Affiliation Program (the "Program"). As used in this Agreement, "we", "us", our, or "BOC" means Boulder Outdoor Center, Inc. and "you" means the applicant. "Boulder Outdoor Center, Inc." means the site that has its primary home page identified by the URL BOC123.com, and "site" means a World Wide Web site. "Your site" means any site that you will link to the BOC123.com Site (and which you will identify in your Program application).
1. Enrollment in the Affiliation ProgramTo begin, you need to submit a complete affiliation application via the BOC123.com Site. We will evaluate your application in good faith and will notify you of its acceptance or rejection. We may reject your application if we determine (at our sole discretion) that your site is unsuitable for this Program. Unsuitable sites include, but are not limited to, those that: promote sexually explicit materials promote violence promote discrimination promote illegal activities breach intellectual property rights By participating in the Program you agree that you will not engage in any such activities. You should also note that if we accept your application and your site is determined (at our sole discretion) to be unsuitable for this Program, we may terminate this Agreement. Participation in the Program is limited to parties that lawfully can enter into and form contracts under applicable law. For example, minors or unauthorized employees on behalf of a company are not allowed to participate in the Program.
3. Order ProcessingWe will process Product orders placed by customers who follow BOC Links from your site to the BOC123.com site. We reserve the right to reject any orders. The BOC will be responsible for all aspects of order processing, fulfillment, process payments, cancellations, and returns, and handle customer service. We will track sales made to customers who purchase Products by using BOC Links from your site to the BOC123.com Site and will make available to you reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time at our discretion.
4. Referral Fees we will pay you (in accordance with Sections 5 and 6 below) referral fees.For a Product or Service sale to be eligible to earn a referral fee, the customer must click-through a BOC Link from your site to the BOC123.com Site, and add the Product to his or her shopping cart. The session ends when 24 hours elapses from the customer's initial click-through or the customer completes their purchase. We will only pay referral fees on Products/Services after payment and shipping have occurred. To permit accurate tracking, reporting and fee accrual, you must ensure that the BOC Links between your site and the BOC123.com Site are properly formatted. We will not be liable for paying referral fees on purchases that are not correctly tracked and reported because the links between your site and the BOC123.com Site are not properly formatted. This Program is mutually exclusive of other deals that we may extend to you, our affiliation partners.
You may not:
(1) take any action that could reasonably cause any customer confusion as to our relationship with you, or as to the site on which any functions or transactions are occurring;
(2) other than providing BOC Links on your site in accordance with this Agreement, post or serve any advertisements or promotional content promoting the BOC123.com Site or otherwise around or in conjunction with the display of the BOC123.com Site (e.g., through any "framing" technique or technology or pop-up or pop-under windows), or assist, authorize, or encourage any third party to take any such action;
(3) attempt to circumvent the referral fee or artificially increase your referral fees (e.g. by intentionally featuring, purchasing or requesting or encouraging any third party to purchase low-price items offered on the BOC123.com Site (as determined by us) by causing any page of the BOC123.com Site to open in a customer's browser other than as a result of the customer clicking on a BOC Link on your site);
(4) attempt to intercept or re-direct (including, without limitation, via user-installed software) traffic from or on, or divert referral fees from, any web site that participates in the Program; or
(5) seek to purchase or register any keywords, search terms or other identifiers that include the word "BOC or Boulder Outdoor Center" or variations thereof (for example "BOC123", "BOCC", etc.) for use in any search engine, portal, sponsored advertising service or other search or referral service. If we determine, at our sole discretion, that you have engaged in any of the foregoing activities, we may (without limiting any other rights or remedies available to us) withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement.
5. Referral FeeSchedule During each calendar quarter, for Products sold during sessions initiated through BOC Links on your site, you will earn (subject to the other terms of this Agreement) a referral fee. Fee Structure. Subject to the other terms of this Agreement, you will earn 6% of "Qualifying Revenues" (revenues derived by us from sales of Qualifying Product units sold during sessions initiated through BOC Links on your site, excluding costs for shipping, handling, gift-wrapping, taxes, service charges, returns and bad debt).
6. Referral Fee PaymentWe will pay you referral fees on a quarterly basis. Approximately 30 days following the end of each calendar quarter, we will either send you a check for the referral fees earned, or send you a gift card good for purchase of Products/Services through the BOC123.com Site, subject to our standard terms or conditions. We will accrue and withhold referral fees until the total amount due is at least $15.00. We are obligated by U.S. federal law to obtain tax information from Program participants who are U.S. citizens, U.S. residents or U.S. corporations and from Program participants who are not U.S. citizens or residents but whose businesses are taxable in the U.S. If we believe you are a Program participant from whom we are obligated to obtain tax information and you do not provide this information to us, we may withhold your referral fee payments until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
7. Policies and PricingCustomers who buy products or submit Card applications through this Program will be deemed to be our customers. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. Because price changes may affect Products that you have listed on your site, we recommend that you continue to check our prices or do not list prices on your website. In addition, if you choose to display prices for any Product on your site in any "comparison" format (including through the use of any price-comparison tool or engine) together with prices for the same or similar products offered through any web site or other outlet other than the BOC123.com Site, you must display both the lowest "new" price and, if we provide it to you, the lowest "used" price at which the Product is available on the BOC123.com Site. You may not otherwise include price information in your Product descriptions.
8. Identifying Yourself as an AffiliateWe will make available to you a small graphic image that identifies your site as a Program participant. You must display this logo or the phrase "In affiliation with BOC" somewhere on your site. We may modify the text or graphic image of this notice from time to time. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that we support, sponsor, endorse, or contribute money to any charity or other cause).
9. Limited LicenseWe grant you a nonexclusive, revocable right to use the graphic image and text described in Section 8 and such other text or images for which we grant express permission, solely for the purpose of identifying your site as a Program participant and to assist in generating Product sales . You may not modify the graphic image or text, or any other of our images, in any way. We reserve all of our rights in the graphic image and text, any other images, our trade names and trademarks, and all other intellectual property rights. You agree to follow our Trademark Guidelines, as those guidelines may change from time to time. We may revoke your license at any time by giving you written notice.
11. Compliance with LawsAs a condition to your participation in the Program, you agree that while you are a Program participant you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc. are now in effect or later come into effect during the time you are a Program participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.
12. Term of the AgreementThe term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to the BOC123.com Site, and all of our trademarks and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. You are eligible to earn referral fees only on sales of Products Services that occur during the term, and referral fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for an additional 30 days time to ensure that the correct amount is collected from customers and paid to you.
13. ModificationWe may modify any of the terms and conditions contained in this Agreement, at any time and at our sole discretion, by posting a change notice or a new agreement on the BOC123.com Site. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE BOC123.com SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
14. Relationship of PartiesYou and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
15. Limitation of LiabilityWe will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to you under this Agreement.
16. DisclaimersWe make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of the BOC123.com Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
17. Independent InvestigationYOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS 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 PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
18. ArbitrationAny dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us or any of our affiliates shall be submitted to confidential arbitration in Boulder, Colorado, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of Colorado (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
19. MiscellaneousThis Agreement will be governed by the laws of the United States and the state of Colorado, without reference to rules governing choice of laws. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. 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. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
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