Affiliation Program Agreement
This 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 Program
To 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.
2. Links on Your Site
Once we have notified you that your site has been accepted
into the Program, we grant you a revocable, non-exclusive, royalty-free
license for the duration of the term of this Agreement, solely
for purposes of facilitating referrals from your site to the
BOC123.com Site. You may provide a link on your site that will
link to any page on the BOC123.com Site. All links to the BOC
website must be properly formatted in order for you to get credit
for sales that occur. We will provide you with guidelines and
graphical artwork to use in linking to the BOC123.com Site home
page. For accurate tracking, reporting, and referral fee accrual,
you must have a properly formatted link that will provide the
BOC website with your companies information. We will provide
you with BOC Links to be used in all links between your site
and the BOC123.com Site. You must ensure that each of the links
between your site and the BOC123.com Site properly utilizes
the BOC link format. Links to the BOC123.com Site placed on
your site pursuant to this Agreement and which properly utilize
such BOC Link formats are referred to as "BOC Links." You will
earn referral fees only with respect to activity on the BOC123.com
Site occurring directly through BOC Links; we will not be liable
to you with respect to any failure by you to use BOC Links,
including to the extent that such failure may result in any
reduction of amounts that would otherwise be paid to you pursuant
to this Agreement. You acknowledge that, by participating in
the Affiliation Program and placing any of the above links within
your site, we may receive information from or about visitors
to your site or communications between your site and those visitors.
Your participation in the Program constitutes your specific
and unconditional consent to and authorization for our access
to, receipt, storage, use, and disclosure of any and all such
information, consistent with the policies and procedures set
forth in the BOC Privacy Policy on the BOC123.com Site. Except
for the license granted under this Section, you do not obtain
any rights under this Agreement to any intellectual property,
including, without limitation, any intellectual property with
respect to the BOC Links, link formats, technical specifications,
guidelines or graphical artwork referenced above, or with respect
to the BOC123.com domain name. As a participant in the Program,
we may from time to time send you email updates about the Program.
By participating in the Program, you consent to our sending
you these email updates. You also acknowledge and agree that
you will promptly delete any content that is no longer displayed
on the BOC123.com Site or that we notify you is no longer available
for your use.
3. Order Processing
We 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 Fee
Schedule 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 Payment
We 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 Pricing
Customers 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 Affiliate
We 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 License
We 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.
10. Responsibility for Your Site
You will be solely responsible for the development, operation,
and maintenance of your site and for all materials that appear
on your site. For example, you will be solely responsible
for: the technical operation of your site and all related
equipment creating and posting Product descriptions on your
site and linking those descriptions to the BOC123.com Site
catalog the accuracy and appropriateness of materials posted
on your site (including, among other things, all Product-related
materials) ensuring that materials posted on your site do
not violate or infringe upon the rights of any third party
(including, for example, copyrights, trademarks, privacy,
or other personal or proprietary rights) ensuring that materials
posted on your site are not libelous or otherwise illegal
ensuring that your site accurately and adequately discloses,
either through a privacy policy or otherwise, how you collect,
use, store, and disclose data collected from visitors, including,
where applicable, that third parties (including advertisers)
may serve content and/or advertisements and collect information
directly from visitors and may place or recognize cookies
on visitors' browsers. We disclaim all liability for these
matters. Further, you will indemnify and hold us harmless
from all claims, damages, and expenses (including, without
limitation, attorneys' fees) relating to the development,
operation, maintenance, and contents of your site.
11. Compliance with Laws
As 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 Agreement
The 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. Modification
We 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 Parties
You 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 Liability
We 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. Disclaimers
We 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 Investigation
YOU 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. Arbitration
Any 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. Miscellaneous
This 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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