This Program Affiliate Agreement ("Affiliate Agreement") contains the terms and conditions that govern your participation in the Marmot Mountain, LLC Affiliate Program (the "Program"). "We," "us," or "our" means Marmot Mountain, LLC or ExOfficio LLC (excluding those that sell retail products), as the case may be. "You" or "your" means the applicant. A "site" means a website. "Marmot Site" means the Marmot.com site or any other U.S. site that is owned or operated by or on behalf of us or our affiliates, as applicable. "Your site" means any site(s) and software application(s) that you own or operate and link to the Marmot or ExOfficio sites. Note that software applications are prohibited from participating in the Program unless expressly approved pursuant to the Affiliate Program Participation Requirements.
BY CHECKING THE BOX OR CLICKING THE "ACCEPT" BUTTON, AS APPLICABLE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AFFILIATE AGREEMENT, OR BY CONTINUING TO PARTICIPATE IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE, REVISED AFFILIATE AGREEMENT, OR REVISED AFFILIATE PROGRAM DOCUMENTATION ON MARMOT.COM, YOU:
(1) AGREE TO BE BOUND BY THIS AFFILIATE AGREEMENT;
(2) ACKNOWLEDGE AND AGREE THAT YOU HAVE AUTONOMOUSLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS AFFILIATE AGREEMENT; AND
(3) HEREBY REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR) AND THAT YOU ARE AND WILL REMAIN IN FULL COMPLIANCE WITH THIS AFFILIATE AGREEMENT, INCLUDING THE AFFILIATE PROGRAM PARTICIPATION REQUIREMENTS . IN ADDITION, IF THIS AFFILIATE AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS AFFILIATE AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS AFFILIATE AGREEMENT.
1. Program Description
The purpose of the Program is to permit you to advertise Products on your site and to earn commissions for Qualifying Purchases (defined in Section 7) made by your end users. A "Product" is any item sold on the Marmot or ExOfficio sites. In order to facilitate your advertisement of Products, we may make available to you data, images, text, link formats, widgets, links, and other linking tools, and other information in connection with the Program ("Content"). Content Explicitally excludes any data, images, text, or other information or content relating to products offered on any site other than the Marmot or ExOfficio sites.
To begin the enrollment process, you must submit a complete and accurate Program application via the application page on PepperJam: (www.pepperjamnetwork.com/affiliate/registration.php).
You must identify all of your websites in your application. We will evaluate your application and notify you of its acceptance or rejection. We may reject your application if we determine that your site is unsuitable. Unsuitable sites include those that:
(a) promote or contain sexually explicit materials;
(b) promote violence or contain violent materials;
(c) promote or contain libelous or defamatory materials;
(d) promote discrimination, or employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation, or age;
(e) promote or undertake illegal activities;
(f) are directed toward children under 13 years of age, as defined by the Children's Online Privacy Protection Act (15 U.S.C. §§ 6501-6506) and any regulations promulgated thereunder;
(g) include any trademark of Marmot, or a variant or misspelling of a trademark of Marmot, in any domain name, subdomain name, or in any username, group name, or other identifier on any social networking site (see the Trademark Guidelines for examples); or
(h) otherwise violate intellectual property rights.
If we reject your application, you are welcome to reapply at any time. However, if we accept your application and we later determine that your site is unsuitable, we may terminate this Affiliate Agreement at our sole discretion.
You will ensure that the information in your Program application and otherwise Affiliated with your account, including your email address and other contact information and identification of your site, is at all times complete, accurate, and up-to-date. We may send notifications (if any), approvals (if any), and other communications relating to the Program and this Affiliate Agreement to the email address then-currently Affiliated with your Program account. You will be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address Affiliated with your account is no longer current.
3. Links on Your Site
After you have been notified that you have been accepted into the Program, you may display Marmot Affiliate Links on your site. "Explicit Affiliate Hyperlinks" are links to the Marmot or ExOfficio sites that you place on your site in accordance with this Affiliate Agreement, that properly utilize the Explicit "tagged" link formats we provide, and that comply with the Program Linking Requirements. Marmot Affiliate Links permit accurate tracking, reporting, and accrual of commissions.
You may earn commissions only as described in Section 7 and only with respect to activity on the Marmot or ExOfficio sites occurring directly through Explicit Affiliate Hyperlinks. We will have no obligation to pay you commissions if you fail to properly format the links on your site to the Marmot or ExOfficio sites as Explicit Affiliate Hyperlinks, including to the extent that such failure may result in any reduction of advertising fee amounts that would otherwise be paid to you under this Affiliate Agreement.
4. Program Requirements
By participating in the Program, you agree that you will comply with the Affiliate Program Participation Requirements and all pages, schedules, policies, guidelines, Explicitations, user manuals, and supporting materials that we make available to you, and other documents and materials referenced in this Affiliate Agreement (collectively, "Affiliate Program Documentation").
You will provide us with any information that we request to verify your compliance with this Affiliate Agreement or any Affiliate Program Documentation. In addition to any other rights or remedies available to us, we may terminate this Affiliate Agreement, withhold (and you agree you are not eligible for) any commissions payable to you under this Affiliate Agreement, or both, if we determine that you or other persons that we determine are affiliated with you or acting in concert with you (whether in respect to any existing or previously terminated account):
You hereby consent to us: sending you emails relating to the Program from time to time; monitoring, recording, using, and disclosing information about your site and visitors to your site that we obtain in connection with your display of Marmot Affiliate Links (e.g., that a particular Marmot customer clicked through a Marmot Affiliate Link from your site before buying a Product on the Marmot or ExOfficio sites) in accordance with the Marmot.com Privacy Notice; and monitoring, crawling, and otherwise investigating your site to verify compliance with this Affiliate Agreement and the Affiliate Program Documentation.
5. Responsibility for Your Site
We will have no liability for these matters or for any of your end users' claims relating to these matters, and you agree to defend, indemnify, and hold us, our affiliates and licensors, and our and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys' fees) relating to (a) your site or any materials that appear on your site, including the combination of your site or those materials with other applications, content, or processes; (b) the use, development, design, manufacture, production, advertising, promotion, or marketing of your site or any materials that appear on or within your site, and all other matters described in this Section 5; (c) your use of any Content, whether or not such use is authorized by or violates this Affiliate Agreement, any Affiliate Program Documentation, or applicable law; (d) your violation of any term or condition of this Affiliate Agreement or any Affiliate Program Documentation; or (e) your or your employees' negligence or willful misconduct.
We will pay you commissions on Qualifying Purchases in accordance with Section 8 and the Program Advertising Fee Schedule. Subject to the exclusions set forth below, a "Qualifying Purchase" occurs when (a) a customer clicks through a Marmot Affiliate Link on your site to the Marmot or ExOfficio sites; (b) during a single Session that customer either (i) adds a Product to his or her shopping cart and places the order for that Product no later than 89 days following the customer's initial click-through, or (ii) the Product is shipped to and paid for by the customer.
A "Session" begins when a customer clicks through a Marmot Affiliate Link on your site to the Marmot or ExOfficio sites and ends upon the first to occur of the following: (x) 24 hours elapses from that (y) the customer follows a Marmot Affiliate Link to the Marmot or ExOfficio sites that is not your Marmot Affiliate Link.
7. Prohibited Paid Search Placement
"Prohibited Paid Search Placement" means an advertisement that you purchased through bidding on keywords, search terms, or other identifiers (including Proprietary Terms) or other participation in keyword auctions. "Proprietary Term" means keywords, search terms, or other identifiers that include the word "Marmot" or any other trademark of Marmot ( see a non-exhaustive list of our trademarks), or variations or misspellings of any of those words (e.g., "Marmot," "Marmott," "Mamrot", "Marmat", and "Mormot"). "Redirecting Link" means a link that sends users indirectly to the Marmot or ExOfficio sites via an intermediate site or webpage and without requiring the user to click on a link or take some other affirmative action on that intermediate site or webpage. "Search Engine" means Google, Yahoo, Bing, or any other search engine, portal, sponsored advertising service, or other search or referral service, or any site that participates in any of their respective networks.
8. Advertising Fee Payment
We will pay you commissions on a monthly basis for Qualifying Purchases shipped in a given month, subject to any applicable withholding or deduction described below. We will pay you approximately 60 days following the end of each calendar month via the payment method you have selected in the Affiliate Network.
If you have not earned any commissions in the 3 years prior to any given calendar month, then on the first day of that calendar month we may charge you an account maintenance fee that will be deducted from your unpaid accrued commissions. That account maintenance fee will be the lesser of $10 or the amount of unpaid accrued commissions in your account. Further, any unpaid accrued commissions in your account may be subject to escheatment under state law. We may be obligated by law to obtain tax information from you if you are a U.S. citizen, U.S. resident, or U.S. corporation, or if your business is otherwise taxable in the U.S. If we request tax information from you and you do not provide it to us, we may (in addition to any other rights or remedies available to us) withhold your commissions until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
9.1. Policies and Pricing
Customers who buy products through this Program are our customers with respect to all activities they undertake in connection with the Marmot or ExOfficio sites. Accordingly, as between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on the Marmot or ExOfficio sites will apply to those customers, and we may change them at any time.
9. Identifying Yourself as an Affiliate
You will not issue any press release or make any other public communication with respect to this Affiliate Agreement, your use of the Content, or your participation in the Program. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to any charity or other cause), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Affiliate Agreement. You must, however, clearly state the following on your site: "[Insert your name] is a participant in the Marmot Mountain, LLC Affiliate Program, an affiliate advertising program designed to provide a means for sites to earn commissions by advertising and linking to Marmot.com."
10. Limited License
Subject to the terms of this Affiliate Agreement and solely for the limited purposes of advertising Products on, and directing end users to, the Marmot or ExOfficio sites in connection with the Program, we hereby grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to (a) copy and display the Content solely on your site; and (b) use only those of our trademarks and logos that we may make available to you as part of Content (those trademarks and logos, collectively, "Marmot or ExOfficio Advertising Assets") solely on your site and in accordance with the Program Trademark Guidelines.
The license set forth in this Section 11 will immediately and automatically terminate if at any time you do not timely comply with any obligation under this Affiliate Agreement or any Affiliate Program Documentation, or otherwise upon termination of this Affiliate Agreement. In addition, we may terminate the license set forth in this Section 11 in whole or in part upon written notice to you. You will promptly remove from your site and delete or otherwise destroy all of the Content and Marmot or ExOfficio Advertising Assets with respect to which the license set forth in this Section 11 is terminated or as we may otherwise request from time to time.
11. Reservation of Rights; Submissions
Other than the limited licenses expressly set forth in Section 11, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to, and you do not, by virtue of this Affiliate Agreement or otherwise, acquire any ownership interest or rights in or to, the Program, Explicit Affiliate Hyperlinks, link formats, Content, any domain name owned or operated by us or our affiliates, Affiliate Program Documentation, our and our affiliates' trademarks and logos (including the Marmot or ExOfficio Advertising Assets), and any other intellectual property and technology that we provide or use in connection with the Program. If you provide us or any of our affiliates with suggestions, reviews, modifications, data, images, text, or other information or content about a product or in connection with this Affiliate Agreement, any Content, or your participation in the Program, or if you modify any Content in any way, (collectively, "Your Submission"), you hereby irrevocably assign to us all right, title, and interest in and to Your Submission and grant us (even if you have designated Your Submission as confidential) a perpetual, paid-up royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (a) use, reproduce, perform, display, and distribute Your Submission in any manner; (b) adapt, modify, re-format, and create derivative works of Your Submission for any purpose; (c) use and publish your name in the form of a credit in conjunction with Your Submission (however, we will not have any obligation to do so); and (d) sublicense the foregoing rights to any other person or entity. Additionally, you hereby warrant that: (y) Your Submission is your original work, or you obtained Your Submission in a lawful manner; and (z) our and our sublicensees' exercise of rights under the license above will not violate any person's or entity's rights, including any copyright rights. You agree to provide us such assistance as we may require to document, perfect, or maintain our rights in and to Your Submission.
12. Compliance with Laws
In connection with your participation in the Program you will comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over you, including laws (federal, state, or otherwise) that govern marketing email (e.g., the CAN-SPAM Act of 2003).
13. Term and Termination
The term of this Affiliate Agreement will begin upon our acceptance of your Program application and will end when terminated by either you or us. Either you or we may terminate this Affiliate Agreement at any time, with or without cause, with or without giving the other party written notice of termination. Upon any termination of this Affiliate Agreement, any and all licenses you have with respect to Content will automatically terminate and you will immediately stop using the Content and Marmot or ExOfficio Advertising Assets and promptly remove from your site and delete or otherwise destroy all links to the Marmot or ExOfficio sites, all Marmot or ExOfficio Advertising Assets, all other Content, and any other materials provided or made available by or on behalf of us to you under this Affiliate Agreement or otherwise in connection with the Program. We may withhold accrued unpaid commissions for a reasonable period of time following termination to ensure that the correct amount is paid (e.g., to account for any cancelations or returns). Upon any termination of this Affiliate Agreement, all rights and obligations of the parties will be extinguished, except that the rights and obligations of the parties under Sections 5, 9, 9.1, 10, 12, 13, 14, 16, 17, 18, 19, and 20, together with any accrued but unpaid payment obligations of us under this Affiliate Agreement, will survive the termination of this Affiliate Agreement. No termination of this Affiliate Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Affiliate Agreement prior to termination.
We may modify any of the terms and conditions contained in this Affiliate Agreement (and any Affiliate Program Documentation) at any time and in our sole discretion by posting a change notice, revised agreement, or revised Affiliate Program Documentation on the Marmot.com site or by sending notice of such modification to you by email to the email address then-currently Affiliated with your account (any such change by email will be effective on the date specified in such email and will in no event be less than two business days after the date the email is sent). Modifications may include, for example, changes to the Affiliate Advertising Fee Schedule, Affiliate Program Participation Requirements, payment procedures, and other Program requirements. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AFFILIATE AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF ANY MODIFICATION (E.G., THE DATE OF OUR POSTING OF A CHANGE NOTICE, REVISED AFFILIATE AGREEMENT, OR REVISED AFFILIATE PROGRAM DOCUMENTATION ON THE MARMOT.COM SITE OR THE DATE SPECIFIED IN ANY EMAIL TO YOU REGARDING SUCH MODIFICATION) WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
15. Relationship of Parties
You and we are independent contractors, and nothing in this Affiliate Agreement or the Affiliate Program Documentation will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective affiliates. You will have no authority to make or accept any offers or representations on our or our affiliates' behalf. You will not make any statement, whether on your site or otherwise, that contradicts or may contradict anything in this section. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Affiliate Agreement, you will be deemed to have taken the action yourself.
16. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, EXPLICIT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS AFFILIATE AGREEMENT, THE PROGRAM, AFFILIATE PROGRAM DOCUMENTATION, THE MARMOT OR EXOFFICIO SITES, OR THE SERVICE OFFERINGS (DEFINED BELOW), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS AFFILIATE AGREEMENT, THE PROGRAM, THE MARMOT OR EXOFFICIO SITES, AND THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AFFILIATE AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
THE PROGRAM, THE MARMOT OR EXOFFICIO SITES, ANY PRODUCTS AND SERVICES OFFERED ON THE MARMOT OR EXOFFICIO SITES, ANY EXPLICIT AFFILIATE HYPERLINKS, LINK FORMATS, AFFILIATE PROGRAM DOCUMENTATION, CONTENT, MARMOT.COM DOMAIN NAME, RELATED DOMAIN NAME, .COM DOMAIN NAME, OUR AND OUR AFFILIATES' TRADEMARKS AND LOGOS (INCLUDING THE MARMOT OR EXOFFICIO ADVERTISING ASSETS), AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS." NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAM, CONTENT, AFFILIATE PROGRAM DOCUMENTATION, THE MARMOT OR EXOFFICIO SITES, OR THE AFFILIATE-PROGRAM.MARMOT.COM SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AFFILIATE AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AFFILIATE AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OF THIS AFFILIATE AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.
Any dispute relating in any way to the Program or this Affiliate Agreement will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law and the laws of the state of Washington, without regard to principles of conflict of laws, will govern this Affiliate Agreement and any dispute of any sort that might arise between you and us.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Affiliate Agreement as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our us: Marmot Mountain, LLC., Attention: Legal. 5789 State Farm Drive, Suite 100, Rohnert Park CA 94928, USA. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights. Notwithstanding anything to the contrary in this Affiliate Agreement, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity's intellectual property or proprietary rights. You further acknowledge and agree that our rights in the Content are of a Explicit, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
You acknowledge and agree that we and our affiliates may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Affiliate Agreement or operate sites that are similar to or compete with your site. You may not assign this Affiliate Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Affiliate 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 Affiliate Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Affiliate Agreement. Whenever used in this Affiliate Agreement, the terms "include(s)," "including," "e.g.," and "for example" mean, respectively, "include(s), without limitation," "including, without limitation," "e.g., without limitation," and "for example, without limitation." Any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under this Affiliate Agreement, may be made, taken, or given in our sole discretion.
20. Affiliate Program Participation Requirements
This Affiliate Agreement governs your participation in the Marmot Services LLC Program. This page describes requirements and restrictions applicable to you as a Program participant. From time to time, we may modify the participation requirements described on this page in accordance with the Affiliate Agreement. All capitalized terms used below that are not defined on this page have the meanings given to them in the Affiliate Agreement.
- You will ensure that your site is not unsuitable (as described in Section 2 of the Affiliate Agreement).
- You will not display or otherwise use our or our affiliates' trademarks or logos (including any Marmot logo) except solely as expressly permitted under and in accordance with the Affiliate Agreement.
- You will not remove, obscure, or alter, or make invisible, illegible, or indecipherable to visitors of your site, any "Privacy Information" link or any of our or our affiliates' trademarks or logos (including any Marmot Logo) that we include in a Marmot Affiliate Link.
- You will use Content solely in accordance with the terms of the Affiliate Agreement and within the express scope of the license granted in Section 11 of the Affiliate Agreement. Without limiting the foregoing, you will (a) use Content solely to send end users and sales to the Marmot or ExOfficio sites and will not link any Content to, or in conjunction with any Content direct traffic to, any page of a site other than the Marmot or ExOfficio sites (however, parts of your site that are not closely Affiliated with the Content may contain links to sites other than the Marmot or ExOfficio sites); and (b) link each use of the Content solely to the related Product detail page or other relevant page of the Marmot or ExOfficio sites and not to any other page.
- You will not engage in any promotional, marketing, or other advertising activities on behalf of us or our affiliates, or in connection with the Marmot or ExOfficio sites or the Program, that are not expressly permitted under the Affiliate Agreement. For example, you will not engage in any promotional, marketing, or other advertising activities in any offline manner, including by using any of our or our affiliates' trademarks or logos (including any Marmot Logo), any Content, or any Marmot Affiliate Link in connection with an offline promotion or in any other offline manner (e.g., in any printed material, mailing, SMS, MMS, email or attachment to email, or other document, or any oral solicitation). Upon our request, you will provide us with written certification that you have complied with this Section 5. We will specify the form of, and content required in, that certification in our request. Any failure by you to provide the certification in accordance with our request will constitute a material breach of this Affiliate Agreement.
- Except as agreed between you and us in a separate written agreement referencing this Participation Requirement, you will not use any Content or Marmot Affiliate Link, or otherwise link to the Marmot or ExOfficio sites, on or in connection with any client-side software application (e.g., a browser plug-in, helper object, toolbar, extension, or component or any other application executable or installable by an end user) on any device, including computers, mobile phones, tablets, or other handheld devices.
- You will not add to, delete from, or otherwise alter any Content in any way, including by adding additional information (e.g., you may not insert words into a customer review), except that you may resize Content consisting of a graphic image in a manner that maintains the original proportions of the image or truncate Content consisting of text in a manner that does not materially alter the meaning of the text or cause the text to become factually incorrect or misleading.
- You will not sell, resell, redistribute, sublicense, or transfer any Content or any application that uses, incorporates, or displays any Content. For example, you will not use, or enable or facilitate the use of, Content on or within any application, platform, site, or service (including social networking sites) that requires you to sublicense or otherwise give any rights in or to any Content to any other person or entity, nor will you create links formatted with your Affiliate's tag for, or display such links on, a site that is not your site.
- You will promptly remove from your site and delete or otherwise destroy any Content that is no longer displayed on the Marmot or ExOfficio sites or that we notify you is no longer available for your use.
- You will not use any Content, including any name or likeness embodied in that Content, in a manner that implies a person's or company's endorsement or sponsorship of, or commercial tie-in or other association with, any product, service, party, or cause (including by placing unrelated third party materials in close proximity to Content).
- You will not seek to purchase or register any Proprietary Term for use in any Search Engine; purchase, register, or otherwise use any Proprietary Term as or in a domain or subdomain name; or register or use any Proprietary Term as or in any ID or "tag." In addition to any other rights or remedies available to us, upon our request you will cause any Search Engine designated by us to exclude Proprietary Terms from keywords used to display your advertising content in association with search results (e.g., request exclusion by negative keyword bidding), assuming the Search Engine offers such exclusion capabilities.
- You will not bid on or purchase keywords, search terms, or other identifiers (including Proprietary Terms) or otherwise participate in keyword auctions on any Search Engine for branded terms of any kind, as defined in this agreement.
- You will not offer any person or entity any consideration or incentive (including any money, rebate, discount, points, donation to charity or other organization, or other benefit) for using Marmot Affiliate Links (e.g., by implementing any "rewards" or loyalty program that incentivizes persons or entities to visit the Marmot or ExOfficio sites via your Explicit Affiliate Hyperlinks).
- You will not intercept, record, redirect, read, interpret, or fill in the contents of any electronic form or other material submitted to us by any person or entity.
- You will not request, collect, obtain, store, cache, or otherwise use any account information used by our customers in connection with any Marmot Site (including any usernames or passwords of Marmot Site customers).
- You will not modify, redirect, suppress, or substitute the operation of any button, link, or other feature of the Marmot or ExOfficio sites.
- You will not make any orders or engage in other transactions of any kind on the Marmot or ExOfficio sites on behalf of any other person or entity, or authorize, assist, or encourage any other person or entity to do so.
- You will not use Marmot Affiliate Links to link to the Marmot or ExOfficio sites from references to items on your site that are not Products.
- You will not 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 (e.g., search, browse, or order) are occurring.
- You will not include on your site, display, or otherwise use Marmot Affiliate Links or Content in connection with any spyware, malware, virus, worm, Trojan horse, or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed on their computer or other electronic device.
- You will not frame the Marmot or ExOfficio sites, or any part of it, within your site, including by display within an integrated web browser (e.g., WebView) within a Mobile Application. However, displaying a Marmot Affiliate Link on your site in accordance with the Affiliate Agreement will not be considered a violation of this Participation Requirement.
- You will not post or serve any Marmot Affiliate Links or other content promoting the Marmot or ExOfficio sites within any pop-up or pop-under windows, transitional page ads, or layer ads around or in conjunction with the display of any site that is not your site.
- You will not include any Marmot Affiliate Links in any content that you place on the Marmot or ExOfficio sites (for example, in connection with any advertising service available through the Marmot or ExOfficio sites or in a customer review, forum, guide, or any other customer-generated context available on the Marmot or ExOfficio sites).
- You will not attempt to circumvent the Program Advertising Fee Schedule or artificially increase your commissions (e.g., by intentionally featuring, purchasing, or requesting or encouraging any other person or entity to purchase, low-price items offered on the Marmot or ExOfficio sites (as determined by us) for the purpose of exceeding any advertising fee threshold, or by causing any page of the Marmot or ExOfficio sites to open in a customer's browser other than as a result of the customer clicking on a Marmot Affiliate Link on your site).
- You will not attempt to intercept or redirect (including via software installed on users' computers) traffic from or on, or divert commissions from, any site that participates in the Program.
- You will not artificially generate clicks or impressions on your site or create Sessions on the Marmot or ExOfficio sites, whether by way of a robot or software program or otherwise.
- You will not display or otherwise use any of our customer reviews or star ratings, in part or in whole, on your site unless you have obtained a link to that customer review or star rating through Marmot's current customer review API and you comply with the requirements set forth in the License Agreement.
- You will not purchase any Product(s) through Marmot Affiliate Links for use by you or for resale or commercial use of any kind. Similarly, you will not request or encourage any of your friends, relatives, or to purchase any Product(s) through Marmot Affiliate Links for use by you or them or for resale or commercial use of any kind. Further, you will not offer any Products on your site for resale or commercial use of any kind.
- You will not cloak, hide, spoof, or otherwise obscure the URL of your site containing Marmot Affiliate Links (including by use of a redirecting page) or the user agent of the application in which Content is displayed or used such that we cannot reasonably determine the site or application from which a customer clicks through such Marmot Affiliate Link to the Marmot or ExOfficio sites.
- You will not knowingly collect, use, or disclose personal information from children under 13 years of age.
- Program Linking Requirements
This Program Linking Requirements page is part of the Affiliate Agreement that governs your participation in the Marmot Mountain LLC Program. This page describes general terms applicable to all types of links (including widgets) you may place on your site to send traffic to the Marmot or ExOfficio sites. It also includes Explicit terms applicable to certain link types that we may make available to you through the Program. From time to time, we may modify the linking requirements described on this page, or the types of widgets and other links that we make available to you, in accordance with the Affiliate Agreement. All capitalized terms used below that are not defined on this page have the meanings given to them in the Affiliate Agreement.
- General Requirements Applicable to All Links.
Links may be created by you or made available to you by us. If we inform you that your site does not qualify to use certain types of links, you must cease displaying those types of links on your site. You are solely responsible for the content, style, and placement of each link that you place on your site and for ensuring that Marmot Affiliate Links (whether created by you or made available to you by us) include the appropriate formatting necessary for us to properly track referrals of customers from your site. For example, you must include your ID or "tag" (appearing as XXXXX-20, or such other format as we may designate) as a parameter in the URL of each link you place on your site to the Marmot or ExOfficio sites. In addition, you must not use a link shortening service in a manner that makes it unclear that you are linking to a Marmot Site. Upon your request but subject to our approval, we may issue you additional "sub-tag" Affiliate IDs that permit you to monitor and optimize the performance of your Marmot Affiliate Links by including different sub-tags in the URLs of different Explicit Affiliate Hyperlinks. Under no circumstances may you associate any sub-tag with a Explicit end user of your site (e.g., you may not dynamically assign sub-tags to users as they arrive on your site for purposes of monitoring such users' behavior).
- You may add or delete Products (and related links) from your site at any time without our approval. You must remove from your site any links and related references to limited time promotions on or before the expiration date of that promotion. For example, if you include links to Products in the apparel category of the Marmot or ExOfficio sites and mention that there is 15% off select products in Marmot's apparel category, you must immediately remove the mention of the 15% discount from your site on or before the expiration date of that promotion.
- You must not make inaccurate, overbroad, deceptive or otherwise misleading claims about any Product, the Marmot or ExOfficio sites, or any of our policies, promotions or prices.
- Product availability and prices may vary from time to time. Because prices for and availability of Products that you have listed on your site may change, your site may only show prices and availability if we serve the link in which that price and availability data are displayed; or and you comply with the requirements set forth in the License Agreement that are applicable to that data. 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 means other than the Marmot or ExOfficio sites, you must display the current price at which the Product is available on the Marmot or ExOfficio sites. You may not otherwise include price information on your site.
- Trademark Guidelines
These Trademark Guidelines ("Guidelines") apply to your use of our and our affiliates' trademarks and logos that we may make available to you from time to time, including as part of any content you obtain from us (collectively, "Marmot or ExOfficio Advertising Assets"). "We," "us," or "our" means Marmot Mountain LLC, ExOfficio LLC, or any of its ExOfficio LLC, as the case may be. "You" means the person or entity using a Marmot Logo. Strict compliance with these Guidelines is required at all times, and any use of a Marmot Logo in violation of these Guidelines will automatically terminate any license related to your use of the Marmot or ExOfficio Advertising Assets.
- Your use of the Marmot or ExOfficio Advertising Assets must (i) comply with the most up-to-date version of all agreement(s) with us regarding your use of any of the Marmot or ExOfficio Advertising Assets (collectively, "Agreements"); (ii) comply with the most up-to-date version of these Guidelines; and (iii) comply with any other terms, conditions, and policies that we may issue from time to time that apply to the use of the Marmot or ExOfficio Advertising Assets. You will not use any Marmot Logo in any other place, for any other purpose, or in any other manner. For example, you may not use any Marmot Logo in connection with any offline promotion or in any other offline manner (e.g., in any printed material, mailing, or other document).
- You may not use or display any Marmot Logo in any manner (i) that implies sponsorship or endorsement by us; (ii) to disparage us, our products, or our services; (iii) that may, as determined by us, diminish or otherwise damage our goodwill in any Marmot Logo; or (iv)other than as Explicitally authorized under the Agreements.
- You may not alter or modify any Marmot Logo in any manner. You may display a Marmot Logo only in the exact format in which we provide it to you. No alternate representation or stylization is permitted. For example, you may not change the proportion, color, or font of any Marmot Logo, or make any additions to or remove any elements from any Marmot Logo.
- Each Marmot Logo must appear by itself, with reasonable spacing between each side of the Marmot Logo and other visual, graphic or textual elements. Under no circumstance may any Marmot Logo be placed on any background that interferes with the readability or display of that Marmot Logo.
- You must prominently include a statement on your site stating that Marmot and the Marmot Logo are trademarks of Marmot.com, LLC. . For example, if your site displays the Marmot.com logo, you would include the following statement: "Marmot and the Marmot logo are registered trademarks of Marmot Mountain LLC."
- You acknowledge and agree that all rights in and to the Marmot or ExOfficio Advertising Assets are our exclusive property, and any goodwill generated by your use of any Marmot Logo will inure to our exclusive benefit. You will not take any action that is in conflict with our rights in or ownership of any Marmot Logo.
- You are not allowed to use any trademark of Marmot, or a variant or misspelling of a trademark of Marmot:
a. In any domain name or subdomain name – for example, a domain name or subdomain name such as <mrmt.com>, <Marmotstore.com>, <Marmotauctions.net>, <marmotmagazines.mydomain.info>, <marmotoutdoorgear.co.uk>, <Marmot.blogspot.com>, <Marmotgearblog.wordpress.com>, or <johnsMarmot.org> is prohibited;
b. In any username, group name, or other identifier on any social networking site – for example, a username such as "Marmot Japan," "Angry Marmot," "Marmot For You," "Marmot Seller," "@BuyMarmotFromMe," "Marmot Number One Fan," or "Marmot Bargain" registered on a site such as Facebook, Twitter or YouTube is prohibited; or
c. In any application name – for example, an application name such as "Shop Marmot App," "Marmotapp," "Marmot Gear Shop," "Marmot Search App," or "Marmot Bargain App" is prohibited
21. This Agreement Prevails
In the event of conflict between the any other terms and conditions and this Agreement, the terms of this Agreement shall control. No future amendment or modification to these terms and conditions and no restatement or replacement these terms and conditions will supersede the provisions of this Agreement unless it is in writing and signed by an authorized representative of each party, and specifically supersedes this Agreement by naming this agreement, it’s revision date and its URL.