Last Updated: October 29, 2007
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND SHIPWIRE. BY REGISTERING FOR THE PROGRAM, YOU AGREE THAT YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE CAREFULLY READ AND UNDERSTAND THE TERMS SET
a. “Affiliate” is defined as a Web site owner, Webmaster, Value Added Reseller (VAR), systems integrator or other referrer of merchants to Shipwire.com that joins the Affiliate Program for purposes of gaining Commission Payments by referring interested buyers of the Shipwire Services to Shipwire.com. An Affiliate is defined by a tracking code (“Affiliate ID”). There can only be one Affiliate that earns Commission Payments per Affiliate ID.
b. “Affiliate Site” is the URL(s) (“Uniform Resource Locator”) that an Affiliate manages and upon which the Affiliate markets the Program. One affiliate can manage more than one URL that runs the same Shipwire Affiliate ID.
c. “Application Alliance Partner” is a Affiliate tier within this Affiliate Agreement that Shipwire, in its sole discretion, elects to enter into an enhancement to this Affiliate Program and Agreement called the Shipwire Application Alliance Partner Agreement. Application Alliance Partners are application owner organizations that integrate to the Shipwire API as defined in the Application Alliance Partner Agreement.
d. “Content” and “Banner Advertisements” means the Shipwire descriptive content, landing pages, links, banner advertisements, newsletters and other Shipwire provided marketing text and content given to Affiliates to promote this program. “Banner Advertisements” means those certain rotating or permanent banner advertisements created and provided by us to you containing a Linking URL that are located on your Affiliate Site, and are no larger than approximately 468 pixels by 60 pixels (or such other dimensions as the parties may from time to time agree upon), which permits Users to navigate directly to a page on Shipwire.com Site as selected by us. You agree not to revise, change or modify any Banner Advertisement provided by us to you for placement on your Affiliate Site.
e. “Click-Through” means each instance in which a User navigates to and fully loads a page on Shipwire.com Site. A page “fully loads” when the entire page is displayed on the electronic device that has accessed the page. A Click-Through does not generate a Commission Payment or any obligation on Shipwire’s behalf. Commission payments only arise for a User conversion into a Referred Merchant.
f. “Developer Affiliate” is defined as an individual or organization that integrates Shipwire Services with Referred Merchant Web sites, Web stores or other Referred Merchant online presence. Developer Affiliate and Affiliate are used interchangeably in this Agreement with the exception that Developer Affiliates can request certification from Shipwire as a Shipwire Certified Developer Affiliate pursuant to the Certification Section below. Shipwire Certified Developer Affiliate program is an extension of the Affiliate Program whereby an Affiliate can identify themselves to Shipwire as a developer and request Certification as detailed below.
g. “Icons” means any graphical or text link, including, without limitation, Banner Advertisements, landing pages and persistent hyperlinks in the form of Shipwire logo, Shipwire marketing collateral, or Shipwire sign-up form, that is located on your Affiliate Site through which Users may directly Link to a location on Shipwire.
h. “Link” means either, (i) one or more hyperlinks located on the applicable areas of your Affiliate Site or Shipwire.com Site, (ii) any “keywords”, such as “Shipping”, etc. that invokes your software program on your Affiliate Site and returns an Icon, or (iii) any other alternative method that enables a User to access Shipwire.com Site from your Affiliate Site. Links also include any connection to Shipwire through the Internet, email, broadband, wireless and handheld devices, cell phones, digital appliances, or other digital interactive means, networks, devices, or transmissions (whether existing now or in the future).
i. “Look and Feel” means the distinctive and particular elements of graphics, design, organization, presentation, layout, user interface, navigation, trade dress, colors and stylistic convention (including the digital implementations thereof) within a World Wide Web site, and the total appearance and impression substantially formed by the combination, coordination and interaction of such elements, and any derivative works.
j. “Referred Merchant” or “Merchant of Record” means a User that Clicks-Through from an Affiliate, is identified via Affiliate’s Affiliate ID that becomes a Shipwire customer, whose name appears on the credit card charge. Users become Referred Merchants upon their agreement to Shipwire Merchant Terms of Services, Signing up for a Shipwire Service and two months payment of monthly fees to Shipwire. A User that signs up for Shipwire Service and cancels within the first two months of service is not considered a Referred Merchant.
k. “Shipwire” means the software code, informational databases, products, and other components that make up our service which is marketed to individual end users (“Merchants”), at our sole discretion, to enable such end users to subscribe to Shipwire Services and pay for Shipwire Serivices via a personal computer (or other interactive device) connected to the Internet or any other network. We currently offer these services on the Web under the name “Shipwire,” but we, in our sole discretion, may change the name, branding and URL(s) from time to time, and the term “Shipwire” as we use it in this Agreement is deemed to refer to all future versions of our online services described in this Agreement, regardless of the name under which it is offered from time to time, and includes without limitation any and all additional, follow-on, successor or replacement versions of these services. Shipwire.com Site consists of Shipwire.com and other URL’s associated with Shipwire.com owned by Shipwire, Inc.
l. “Shipwire Services” are defined as the Shipwire offering and include without limitiation storage, shipping, customer support, the Shipwire definition above and other services we offer to individual end users for subscription. Not all Shipwire Services generate Affiliate Commission Payments, see the Commission Schedule for a definition of what Shipwire Services generate Affiliate Commission Payments.
m. “Total Referred Revenue” means the net revenue that a Referred Merchant, tracked to Affiliate’s Affiliate ID, pays Shipwire for Shipwire Services. Shipwire generates Affiliate Commission Payments based on Total Referred Revenue that is eligible for a Referral Fee or Commission Payment as described in the Commission section of this Agreement.
n. “User” means individuals or entities that access Shipwire directly from your Affiliate Site via a Click-Through. For purposes of clarification, the meaning of “User” shall not include any software program or routine that generates a Click-Through with no individual person actually present, such as shoppingbots or other computer programming routines that are intended to scrape, mine, surreptitiously intercept or expropriate any information for the purpose of comparison shopping. Once a User has subscribed to Shipwire Services they become a Referred Merchant.
2. Enrollment in the Program: To begin the enrollment process, you agree that you are an eligible party (see below), you will submit a complete Program application via the Shipwire.com Site. You will be grated access to the Shipwire.com Affiliate program to start as an Affiliate. If granted immediate access after acceptance of this Agreement, during the first 30 days, Shipwire will evaluate your application in good faith and will notify you if you are not eligible for the Program. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Program or you are ineligible as defined below. Unsuitable sites include, but are not limited to, those that (i)( promote sexually explicit materials; (ii) promote violence; (iii) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) promote illegal activities; (v) include “Shipwire,” any other trademark of Shipwire.com, Inc. or its affiliates, or variations or misspellings of any of them, in their URLs to the left of the top-level domain name (e.g., “.com”, “.net”, “.uk”, etc.) — for example, a URL such as “shipwire.mydomain.com” or “shipware.com” would be unsuitable; (vi) Otherwise promotes or incorporates any materials which infringe or assist others to infringe the intellectual property rights of others (vii) Collectively these unsuitable sites are deemed “Content Restrictions”.
a. We will provide you with guidelines and graphical artwork to use in linking to the Shipwire.com Site home page or customized landing page for Affiliate
b. To permit accurate tracking, reporting, and referral fee accrual, we will provide you with special “tagged” link formats that include your Affiliate ID to be used in all links between your site and the Shipwire.com Site. You must ensure that each of the links between your site and the Shipwire.com Site properly utilizes such special link formats. Links to the Shipwire.com Site placed on your site pursuant to this Agreement and which properly utilize such special link formats are referred to as “Affiliate Referral Links”. You will earn Referral Fees only with respect to activity on the Shipwire.com Site occurring directly through Affiliate Referral Links; we will not be liable to you with respect to any failure by you to use Affiliate Referral Links properly, 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.
c. You acknowledge that, by participating in the Affiliate 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 Shipwire Privacy Policy found on the Shipwire.com Site.
d. Except for the license granted under this Section 2, you do not obtain any rights under this Agreement in any intellectual property, including, without limitation, any intellectual property with respect to the Affiliate Referral Links, link formats, technical specifications, guidelines or graphical artwork referenced above, or with respect to the Shipwire.com domain name.
e. Further, you acknowledge and agree that you will: (a) use any data, images, text, or other information obtained by you from us or the Shipwire.com Site in connection with this Agreement (”Content”) only in a lawful manner and only in accordance with the terms of this Agreement; (b) not modify or alter any Content that consists of a graphic image, other than to resize it; (c) not edit any Content that consists of text, other than to shorten its length; (d) not sell, redistribute, sublicense or transfer any Content; (e) not use any Content in a manner intended to send sales to any site other than the Shipwire.com Site; (f) promptly delete any Content that is no longer displayed on the Shipwire.com Site or that we notify you is no longer available for your use and (j) not use any Content, including any name or likeness embodied therein, in a manner (e.g., a closely proximate placement to unrelated third party materials) 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 unless authorized by Shipwire.com
f. You also acknowledge that as a participant in the Program, we may from time to time send you email or Real Simply Syndication (RSS) updates about the Program. By participating in the Program, you consent to our sending you these email or RSS updates.
g. You shall prominently display and maintain the Icons provided to you by us, or any addition to or substitute thereof that we may provide to you from time-to-time during the term of this Agreement, on your Affiliate Site which shall Link directly to Shipwire.com Site. You agree not to place the Icons on the same page on your Affiliate Site with the logos or trademarks from Shipwire Competitors (as defined below). You agree that in exchange for Commission Payment you will not advertise any Competitor affiliate program on your Affiliate Site next to, adjacent to, in the same section or on the same page as the Shipwire Affiliate program. This expressly forbids you from running the Shipwire affiliate links in a compare table on your site as an Affiliate of Shipwire. In no way does this paragraph limit Shipwire’s ability to offer this Program to any Affiliates nor is this paragraph to be interpreted as an exclusivity clause granted from Shipwire to You. In the event we provide you with new or modified Icons, you agree to implement the new Icons within thirty (30) days following receipt of the update from us. You agree to comply with the Icon Guidelines for Linking that we provide to you or any other replacement guidelines that we may provide to you in writing from time-to-time during the term of this Agreement. Additionally, we encourage (but do not require) you to include a Link to the home page of Shipwire.
h. In no event shall you or your agents make or extend any representation or warranty on our behalf with respect to Shipwire Services.
i. You warrant and represent to us that your Affiliate Site: (i) is in compliance with all applicable laws and regulations; (ii) does not contain any material that is fraudulent, defamatory or obscene; and (iii) is suitable in all respects to be Linked to from Shipwire. You agree that your Affiliate Site will not, in any way, copy or resemble the Look and Feel of Shipwire nor will you create an impression that your Affiliate Site is Shipwire or part of Shipwire, nor will you frame any page on Shipwire being viewed by a User of your Affiliate Site who links to Shipwire through a Link. You agree that during the term of this Agreement, your Affiliate Site shall not contain any of the Content Restrictions described above, nor shall it disparage Shipwire or us in any way. We may test your Affiliate Site’s URL, and if such URL is not in compliance with the terms and conditions of this Section or the Agreement at as a whole, we, in our sole discretion may (i) remove such non-conforming URL; and/or (ii) terminate this Agreement.
j. Compliance with Terms and Conditions. By participating in this Program, you agree to be subject to all of the terms and conditions of the Affiliate Program, Shipwire User Agreement, and the Shipwire Privacy Policy. Shipwire reserves the right to close your Affiliate account and/or restrict you from participating in this Program if you fail to comply with any of the terms and conditions. Shipwire expressly reserves the right to change any of its terms and conditions at any time in its sole discretion. By continuing in the program you expressly accept any changes to Shipwire terms and conditions.
k. Responsibility for your Site: You will be solely responsible for the development, operation, and maintenance of your Affiliate Site and for all materials that appear on your site. For example, you will be solely responsible for: (i)the technical operation of your site and all related equipment; (ii) ensuring the display of Affiliate Referral Links on your site does not violate any agreement between you and any third party (including without limitation any restrictions or requirements placed on you by a third party that hosts your site); (iii)creating and posting Product descriptions on your site and linking those descriptions to the Shipwire.com Site and Services; (iv) the accuracy and appropriateness of materials posted on your site (v) 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); (vi) ensuring that materials posted on your site are not libelous or otherwise illegal; (vii) 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 Shipwire) 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.
If you are an employee or agent of a Competitor of ours, a shipping agent or a shipping supplier (collectively, “Ineligible Party”), you are not eligible to enroll in the Shipwire Affiliate Program. For the purposes of this Agreement, a “Competitor” includes, but isn’t limited to any shipping broker and any carrier. If you fall into any of these categories and you still wish to enroll in the Affiliate Program, you must obtain prior written approval from us for your participation as an Affiliate. If you have any questions whether you are or are not an Ineligible Party, please contact us BEFORE you execute this Agreement. In addition, you agree to: (i) terminate this Agreement immediately if you become an Ineligible Party following your enrollment in the Affiliate Program; and (ii) keep confidential any Confidential Information, as defined in this Agreement, which we have provided to you during your enrollment in the Affiliate Program. You specifically agree that the obligation for confidentiality in this Agreement survives any termination of this Agreement. YOU ACKNOWLEDGE AND AGREE TO THESE RESTRICTIONS AND SPECIFICALLY AGREE THAT ANY BREACH OF THIS SECTION 2 SHALL BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
IF YOU ARE AN INELIGIBLE PARTY AND ENROLL IN THE AFFILIATE PROGRAM, YOU AND WE AGREE THAT WE WILL BE MATERIALLY DAMAGED BY YOUR ACCESS TO OUR CONFIDENTIAL INFORMATION IN AN AMOUNT THAT IS DIFFICULT TO ASCERTAIN. ACCORDINGLY, YOU AND WE AGREE THAT IF YOU ARE AN INELIGIBLE PARTY AND ENROLL IN THE AFFILIATE PROGRAM, THAT YOU WILL PAY FIFTY THOUSAND DOLLARS (US$50,000.00) TO US AS LIQUIDATED DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS PROVISION SHALL PREVENT US FROM PURSUING EQUITABLE REMEDIES RESULTING FROM A BREACH OF THIS AGREEMENT.
IF FOLLOWING YOUR ENROLLMENT IN THE AFFILIATE PROGRAM YOU BECOME AN INELIGIBLE PARTY AND DO NOT IMMEDIATELY TERMINATE THIS AGREEMENT, YOU AND WE AGREE THAT YOUR CONTINUED ACCESS TO OUR CONFIDENTIAL INFORMATION WILL PUT US AT RISK. FURTHER, YOU AND WE AGREE THAT ANY USE BY YOU OF THE CONFIDENTIAL INFORMATION OBTAINED PRIOR TO TERMINATION OF THE AGREEMENT WILL PUT US AT RISK. ACCORDINGLY, YOU AND WE AGREE THAT IF: (I) YOU DO NOT KEEP CONFIDENTIAL THE CONFIDENTIAL INFORMATION YOU OBTAINED PRIOR TO BECOMING AN INELIGIBLE PARTY; OR (II) YOU DO NOT TERMINATE THE AGREEMENT AS REQUIRED AND THEREFORE CONTINUE TO ACCESS OUR CONFIDENTIAL INFORMATION, THAT WE WILL BE MATERIALLY DAMAGED BY YOU IN AN AMOUNT THAT IS DIFFICULT TO ASCERTAIN AND YOU WILL PAY FIFTY THOUSAND DOLLARS (US$50,000.00) TO US AS LIQUIDATED DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS PROVISION SHALL PREVENT US FROM PURSUING EQUITABLE REMEDIES RESULTING FROM A BREACH OF THIS AGREEMENT.
5. Shipwire’s Obligations
a. We shall provide you with one or more Icons, or any substitute thereof that we, in our sole discretion, may provide to you from time to time during the term of this Agreement for use on your Affiliate Site. Additionally, we shall provide you with Icon Linking guidelines, or such other replacement guidelines as we may provide to you in writing from time-to-time during the term of this Agreement.
b. We shall provide customer support and fulfillment services to Users or Referred Merchants in accordance with our then-current standard terms and conditions and standard customer service policies and procedures applying generally to users of Shipwire. You acknowledge that we reserve the right to refuse to provide Shipwire Services to a User or Referred Merchants for a variety of reasons, including but not limited to: (a) purchase rejection by applicable credit card company; (b) inability to authenticate credit card; (c) inability to authenticate card holder; (d) User’s purchase history with us and/or our Affiliates; and, (e) any other reason in Shipwire’s sole discretion.
c. We shall make available to you monthly or quarterly reports, at Shipwire’s sole discretion, that set forth, at a minimum, the number of Click-Throughs to Shipwire from your Affiliate Site, and the number of Referred Merchants, aggregate information on Net Revenue generated from Referred Merchants for monthly fees and order fulfillment fees completed by Referred Merchants Affiliated with your Affiliate ID.,
d. The parties acknowledge that a third-party reporting and tracking agent, (“Reporting Agent”) may be implemented by Shipwire to assist us in fulfilling our tracking and reporting requirements hereunder. If employed, to ensure that reporting begins as soon as possible, you agree to register with the Reporting Agent as soon as practicable and to provide us with necessary information assigned by the Reporting Agent to track Users and Referred Merchant traffic from Affiliate Sites.
6. Use of Shipwire Trademarks & Identifying Yourself as an affiliate You agree that we may include your logos, trademarks, trade names and similar identifying material (“Your Marks”) on Shipwire in a listing of companies who are participating in the Program; provided however, that in no event shall we be required to include Your Marks in any such listing. You represent and warrant that you are the sole and exclusive owner of Your Marks and have the right and power to grant to us the license to use them in the manner described herein, and such grant does not or will not breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon you; or infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. We will remove Your Marks from any such lists upon the effective date of the expiration or termination of this Agreement.
You may not issue any press release with respect to this Agreement or your participation in the Program; such action may result in your termination from the Program. 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 association with Shipwire” 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).
Limited License. We grant you a nonexclusive, revocable right to use the graphic image and text described in this section 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 Shipwire Services sales. You may not use such image or text in an offline promotion or other offline manner (e.g., in any printed material, mailing or other document). 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 these and other Shipwire Trademark Guidelines, as those guidelines may change from time to time. We may revoke your license at any time by giving you written notice.
7. Ownership of SHIPWIRE
a. We shall own all intellectual property rights (including without limitation all copyrights, patents, trademarks and trade secrets) in connection with and in all versions of Shipwire.
b. We will own all data generated by Users and Referred Merchants of Shipwire, and all of the terms and conditions, rules, policies and operating procedures of Shipwire (including but not limited to policies relating to the use of customer personal identification information, customer orders, customer service and ticket fulfillment) will apply to such Users and Referred Merchants of Shipwire; and we reserve the right to change such terms and conditions, rules, policies and operating procedures at any time.
8. Referral Fee Commission Structure
You are eligible to earn Commissions on qualified sales of Shipwire Services to Referred Merchants during the term of this Agreement, where the User follows a Link from your Affiliate Site directly to Shipwire and that User, becomes a Referred Merchant by successfully signing up for Shipwire Services, which is completed during the term of this Agreement as outlined in the Commission structure below (the “Commission Payments”, “Commissions” or “Affiliate Commissions”). Commission Payments for Shipwire Services will not be awarded in the event of credit card fraud, bad debt, and credits due for cancellations or returns. We will pay you a Commission only if the Referred Merchant is tracked on our internal online ordering system from the time the Link is initiated on your Affiliate Site to the time of the sale. You agree that no Commission will be paid if the “Referred Merchant” cannot be tracked by our internal ordering system or the User is already a subscriber to Shipwire Services.
Affiliate Commissions will be calculated as follows:
We calculate the amount of fees paid by each Referred Merchant for some Shipwire Serives incuding monthly storage fees and individual order shipping charges. By adding up standard shipping and monthly storage fees from all merchants you have referred to Shipwire since your sign-up (“Total Referred Revenue”) we calculate the total amount of revenue referred by your Affiliate ID and automatically position you into the tiered payment structure below. Charges to Referred Merchants for items other than monthly storage and individual order shipments do not count toward Total Referred Revenue, for example, warehouse remote project fees, customer support charges or other fees as some merchants may be charged from time to time.
A Referred Merchant counts towards your Total Referred Revenue calculation for a period of 1 year after the merchant has signed up (“Referred Merchant Age”). For promotional activities Shipwire may unilaterally and at its sole-discretion extend the “Referred Merchant Age Restrictions”, in which case Shipwire reserves the right to modify such Referred Merchant Age Restrictions at any time in its sole discretion, even after you sign-up for the Affiliate program after written notice to You. Your sole exclusive remedy is termination of your Affiliate status or request Certification as a Certified Developer Affiliate or Application Alliance Partner.
Should an Affiliate not refer Users or generate Click-Through(s) to Shipwire via Affiliates Tracking ID for a period of 6 months Affiliate is considered not eligible for Commission Payments and this agreement will be considered Terminated. After such termination Affiliate can request reactivation of their Affiliate ID, which may be granted at Shipwire’s sole discretion, or resubmit an application for a new Affiliate ID with Shipwire. Shipwire may enforce this termination clause at its sole discretion.
|
Total Referred Revenue |
Commission Payout Details |
|
$0-2500 |
$.10/Order shipped by your referred Merchants. |
|
$2501-5000 |
$.15/Order shipped by your referred Merchants |
|
$5001-10,000 |
$.20/Order shipped by your referred Merchants |
|
$10,000+ Certified Developer Affiliates (once approved) are in this tier. Application Alliance Partners (once approved) are in this tier. |
$.30/Order shipped by your referred Merchants. |
Returns, refunds, credits and unpaid shipping charges by Referred Merchants do not count towards Total Referred Revenue.
Affiliates that identify themselves to Shipwire as a Developer and complete an application requesting Certification as a Certified Developer Affiliate will be eligible for additional benefits including enhanced Commission Payments as defined above, logos and marketing Content that identifies Affiliate as a Certified Developer Affiliate and at Shipwire’s sole discretion and timing, listing as a Certified Developer Affiliate on Shipwire.com, or other URL maintained for this purpose by Shipwire. Affiliates seeking Certification must follow the submission guidelines on Shipwire.com that may change from time-to-time. Shipwire may reject or accept an Affiliates application to be a Certified Developer Affiliate in its sole discretion. This Affiliate program extension can be terminated at any time in Shipwire’s sole discretion. If accepted, Certified Developer Affiliate agrees to exclusively promote Shipwire Services and not those of a Shipwire Competitor and agrees that Affiliates participation as a Certified Developer Affiliate is subject to review by Shipwire at any time in Shipwire’s sole discretion.
10. PAYMENTS
Within forty-five (45) days after the end of each quarter during the term of the Agreement with respect to which we owe you any Commission Payments, we will furnish you an online statement together with payment for any amount due to you (“Commission Schedule”). The statement will contain information sufficient to discern how the payment was computed. In the event that the total quarterly Commission Payment payable to you is less than Fifty Dollars (US$50.00) for the applicable month (“Monthly Minimum Threshold”), we will hold the payment until the aggregate total Commission Payment meets or exceed the Quarterly Minimum Threshold. We will remit all payments owed to you to your address provided in the Application submitted in accordance with your enrollment in this program. You expressly agree to keep your address and personal information submitted to Shipwire up dated. Any Commission Payments returned to shipwire due to incorrect Affiliate contact information will not be resent and you agree to relinquish rights to such Commissions.
11. MODIFICATION
We may modify any of the terms and conditions contained in this Agreement, at any time in our sole discretion. Notification to you of any change by e-mail or posting of a change notice on Shipwire.com and/or the Internet site of any designated Reporting Agent, as described above, at our sole option, shall be considered sufficient notice to you of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available Commission fees, commission 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 SHIPWIRE.COM SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
12. EFFECT OF ECONOMIC CONDITIONS
In the event we deem, in our sole discretion, that act of terrorism, act of God, military action or extraordinary political, economic, or other conditions or occurrences beyond our control significantly impacts the shipping business, our businesses, access or navigation to Shipwire from you or your business(es) and alters our exposure under this Agreement, we may, at any time, suspend performance (in part or whole) of any or all terms and conditions of this Agreement, suspend payment due hereunder (in part or whole) or terminate the Agreement (in part or whole), in our sole discretion. We will provide you with written notice five (5) days prior to the effective date of such change(s). You agree that written notice can be made in the form of mail, email or fax.
13. TERM AND TERMINATION
This Agreement shall commence upon our acceptance of your Program Application and shall continue until terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Written notice can be in the form of mail, email or fax. You are only eligible to earn Commissions occurring during the term of the Agreement, and Commissions earned through the date of termination will remain payable in accordance with this Agreement. If this Agreement is terminated because (i) you have violated the terms of this Agreement, or (ii) your Affiliate Site becomes subject to the Content Restrictions set forth above, you are not eligible to receive any commission payments, even for commissions earned prior to termination. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid. Upon termination or expiration of this Agreement for any reason, you shall immediately remove any Icon, Link or Shipwire Content from your Affiliate Site.
14. Representations and Warranties
You represent and warrant to us that you are not an Ineligible Party, as defined in this Agreement, and that this Agreement has been duly and validly executed by you by virtue of your clicking on the “Accept” button at the end of this Agreement and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; and that the execution, delivery, and performance by you of this Agreement are within your legal capacity and power, have been duly authorized by all requisite action on your part, require the approval or consent of no other persons; and neither violate nor constitute a default under the provision of any law, rule, regulation, order, judgment or decree to which you are subject or which is binding upon you, or the terms of any other agreement, document or instrument applicable to you or binding upon you. The representations and warranties in this Section are continuous in nature and shall be deemed to have been given by you upon your acceptance via the “Accept” button at the end of this Agreement and at each stage of performance hereunder. These representations and warranties and covenants shall survive termination or expiration of this Agreement.
15. Indemnification
You hereby agree to indemnify, defend, and hold harmless us and our Affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ or other professionals\’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of Your Marks infringe on any trademark, trade name, service mark, copyright, license, intellectual property, or another proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your Affiliate Site including, without limitation, content therein not attributable to us.
We make no express or implied warranties or representations with respect to the Program or any service, product or other items sold through the Program, including implied warranties of merchantability, fitness for a particular purpose, noninfringement, implied warranties arising out of a course of performance, dealing, or trade usage, or freedom from patent, trademark or copyright infringements, whether arising by law, custom or conduct, or as to the accuracy or completeness of the information provided by us. In addition, we make no representation that the operation of Shipwire or Shipwire.com will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
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 COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT. THE FOREGOING LIMITATION SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.
17. Confidentiality; Media Communications
If you have entered into a Non-Disclosure Agreement with us, you agree that the terms of that agreement shall be deemed to be incorporated herein. If you have not entered into a Non-Disclosure Agreement with us, then you understand and agree that the following terms and conditions will apply to certain information that we may disclose to you as a result of your participation in the Program information that we consider to be confidential (the “Confidential Information”). For purposes of this Agreement, the term “Confidential Information”, shall include, but not be limited to, the terms of this Agreement, any modifications to the terms and provisions of the Agreement made specifically for your Affiliate Site and not generally available to other members of the Program, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or you, respectively, or any members of the Program, other than you. Confidential Information shall also include any information that we designate as confidential during the term of this Agreement.
You agree not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and shall not be utilized, directly or indirectly, by you for your 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 or if same is required by law or legal process.
18. 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) ENGAGE IN SIMILAR ARRANGEMENTS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR AFFILIATE 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
19. Governing Law
This Agreement will be governed by the laws of the
20. Assignability
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 and enforceable against the parties and their respective successors and assigns. This Agreement is the complete Agreement between the parties and supersedes any prior oral or written agreement concerning the subject matter
21. ARBITRATION
22. No Waiver
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 a provision or any other provision of this Agreement.