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Affiliate Agreement:By applying for and being accepted through our affiliate program, you agree to the following terms and conditions of participation. Please read these terms and conditions carefully as they constitute a legal agreement between you and our company upon acceptance into our affiliate program. BY CLICKING THE ACCEPTANCE BUTTON AT THE END OF THIS AGREEMENT, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT RELATIVE TO YOUR PARTICIPATION IN THE AFFILIATE PROGRAM. BY CLICKING THE ACCEPTANCE BUTTON BELOW, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE CAREFULLY REVIEWED THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND THAT YOU AGREE TO BE BOUND BY ALL SUCH TERMS AND CONDITIONS. The name of this affiliate program is the http://tapestry-tapestry.com Affiliate Program (the “Affiliate Program”). You represent and warrant to us that you have read and understand the Privacy Policies that are included in our web site and agree to the terms set forth therein. For purposes of this Agreement, the term “you” or “your” refers to the individual or legal entity who applies for and is accepted into the Affiliate Program. The term “us” or “we” refers to http://www.tapestry-tapestry.com, the sponsor of the Affiliate Program. The term “our web site” refers to the web site that we maintain at http://www.tapestry-tapestry.com. The term “your web site” refers to the web site on which you agree to place a link to our web site as specified in your application for affiliate membership. “Merchandise” means all products, merchandise and stock that is offered by us for sale through our web site. 1. AFFILIATE PROGRAM REGISTRATION. To register for the Affiliate Program, you must complete and submit to us an Affiliate Program Application Form. The Affiliate Program Application Form is included on our web site and can be completed and submitted to us through our web site. 2. APPROVAL OR REJECTION OF AFFILIATE PROGRAM APPLICATION. We reserve the right to approve or reject ANY Affiliate Program Application in our sole and absolute discretion. You will have no legal recourse against us for our rejection of you Affiliate Program Application. 3. REASONS FOR REJECTION. Without limiting our right to reject any application for any reason whatsoever in our absolute discretion, your application will be rejected if it is non complete, if your web site contains images or content that is not acceptable to us or is inconsistent with the image that we wish to create in association with our web site, or if your web site contains any illegal, immoral, repulsive, defamatory, derogatory, harassing, harmful, threatening, obscene, vulgar, pornographic, racial or ethnic objectionable materials, depicts sexual situations, promotes discrimination on the basis of race, sex, sexual preference, national origin, ethnicity, nationality, disability, religious preference, or if your site contains any material that appears to us to violate any patent, trademark, copyright, trade secret, confidential information, or other property rights of any other party. 4. TERMINATION AFTER ACCEPTANCE. Even after we have accepted you as an Affiliate Program member, we reserve the absolute right to rescind or terminate your affiliate status for any reason in our sole and absolute discretion, including but not limited to the reasons set forth above. 5. FINANCIAL RESPONSIBILITIES. You will be fully responsible for all costs and expenses of maintaining and marketing the Affiliate Program, including but not limited to all costs associated with the creations, hosting, modification, and improvements to your web site, costs of search engine placement and other internet marketing, costs of inserting our links into your web site, offline marketing costs, postage costs, and all other costs and expenses, and you hereby hold us harmless from or against he same. 6. NO REPRESENTATIONS REGARDING INCOME POTENTIAL. We make no representations and warranties regarding potential income that may result from participation in our Affiliate Program and we specifically disclaim any and all warranties relative to earning potential from your affiliate status. 7. RESPONSIBILITY TO LINK TO OUR SITE. As a Program Affiliate, you will have the obligations to place links on your site directing users to our site. We will make available to you button links, text links, and banner advertisements to be placed on your web site which will direct users to our web site via hypertext link. As a Program Affiliate, you are given a limited term license, during the term of your active participation as a Program Affiliate, to utilize our logo images that we provide to you on the web site that you designate in your Affiliate Program Application. 8. We make available to our Affiliates, links, banners, and other information advertising our site to be used subject to the terms of this Agreement. These materials will contain our trademarks and other proprietary property. You may display these materials on your web site for the purpose of promoting our site and participating in our Affiliate Program. If you discontinue the Affiliate Program or if your participation is terminated for any reason, you will immediately cease using these materials and will delete all such materials from your web site and from your computer. 9. You consent to us including information relative to traffic from your site in our reports. This information may be provided to outside parties. 10. We will be responsible for handling all customer inquiries, product orders, customer billing and collection, product shipment relative to customers that enter our site through the links from your site. Pricing of our products and services is totally within our discretion and we reserve the right to change the pricing structure, terminate any special offers, discontinue products or services, or change the terms under which products or services are offered at any time, without any advanced notice to you or users accessing our site. Our only responsibility to you in this regard is to track customer orders that occur through links from your web site and make reports to you of the commissions due to you as a result thereof. All such reports shall be un-audited. We will have no obligation to provide you with any specific information relative to any customer, regardless of whether they access our site through the link from your site. 11. We are not responsible for the failure to assign any sale or commissions to you if the same results from the improper formatting 9of the link from your website. You should assure at all times that the link is appropriately formatted and report ant problems that you may have with the same to us immediately. 12. Commissions will be paid to you based upon a percentage of sales made to users who access our site through your site. Commissions will be calculated based upon the gross sales price, but not including any shipping and handling, sales tax, special service fees such as gift wrapping or packaging, late charges, collection costs, imports/export duties, and any other payment made to us that is not the purchase price for the product that is purchased. Commissions will not be calculated based upon amounts that are attributable to credit card fraud, credits given to customers, bad debt right-off and returned goods. We reserve the right to deduct in subsequent months for any commission that we pay that is for a product that is subsequently returned or refunded, or for any other reason if the previous monthly commission was overpaid or later subject to reduction. 13. The percentages to be paid as commissions hereunder are currently as set forth in Schedule A at the end of this Agreement. We reserve the right to change and amend the commission rate structure at any time, in our sole discretion. 14. Commissions will only be paid on sales that are tracked through or online tracking system and indicate your web site’s link to our web site as the source. There is no right to commissions if a user later returns to our site and makes a purchase through another link or source other than through your web site. You have no right to commissions based upon subsequent sales, even if the customer first arrived at our site through the link from your site. Commissions will only be tracked and paid when the user makes a purchase on the same visit that the user visits our site from the link to our site on your site. 15. We will pay commission only upon collection by us. You have no right to commissions until the applicable customer has paid us in full. Only purchases that are made through our online ordering process will count towards commission calculations. We encourage all orders through our online ordering system. 16. Commissions will be paid to you on a monthly basis on or about the 15th day of the subsequent month for amounts received by us during the previous month. We do not guarantee an exact date of calculation of commissions or payments. All payments will be made via company check sent to the address that you supplied in the Affiliate Program Application. 17. All parties who make purchases through our web site, regardless of whether they may have reached our web site through the link from your web site, are deemed to be our customers and not your customers relative to our products and services. We will have the right to contact these customers and send future marketing offers to them. You will have no right to commissions on subsequent purchases that may be made by these customers, except for subsequent purchases that may be traced at the time of purchase through a link from your web site. Additionally, all such customers and purchases will be subject to our policies, procedures, rules and regulations and you have no right or authority to amend or offer any different offers relative to the purchase of products from our web site. We however, reserve the right to amend any of our terms, conditions, policies, procedures, pricing, payment policies, collection policies, and all other items relative to our business and sale of products at any time in our sole discretion. 18.
We are required by the Internal Revenue Service to have a
form W-9 on file before paying any United States-based affiliate
members. We ask that all affiliates complete and mail or fax this
form to us a soon as possible and reserve the right to delay
affiliate payments until this document is received.
19. We cannot guarantee product availability or the term of any price or special promotion or offer. 20. You will have a non-exclusive, limited term license to use the trademarks, logos, and copyrighted material that we provide to you for use on your website. You agree to display these items prominently on your web site. These items may only be used in if they contain a hypertext link to our web site. This license shall immediately terminate upon your termination from the Affiliate Program. We may also terminate this license upon notice to you in the event that your use of these items is contrary to or does not conform with our standards, such standards to be determined in our sole and absolute discretion. You agree that we retain all right, title and interest in and to all such materials. We will retain all goodwill and other value associated with any of these materials. You will not gain any trademark, copyright or other proprietary rights to such materials. You agree that you will not take any action that is contrary to or inconsistent with our rights to these materials. You will not use these materials in any way that is damaging, defamatory, disparaging, derogatory, or negative to us or that paints us in a false or negative light. We may revoke the limited license granted hereunder at any time in writing to you. Upon termination or revocation, you will immediately cease from any use this material. 21. You are not permitted to use any other proprietary materials, including but not limited to trademarks, copyrights, logos, text, and any other materials that belong to us or to any other party and which may appear on our web site. 22. You are responsible for all matters pertaining to your own web site including its development, maintenance, operation and placing links on your site in compliance with the terms of the Affiliate Program. You are completely responsible for all items that appear on your site and for assuring that such items do not infringe upon or violate the rights of any other party. We are not responsible for any matter pertaining to your site or the content thereof and you hold us harmless and indemnify us from any and all claims, suits, threats, demands, liabilities, actions, causes of action related in any way to your web site and business. Such indemnity includes our costs and attorney fees in defending any such matter. You represent and warrant to us that your site does not and will not contain any materials that are illegal and that your site is not operated for an illegal purpose or in an illegal manner. 23. You hereby represent and warrant to us that you have the complete power and authority to enter into this Agreement and that this Agreement constitutes a valid and legally enforceable agreement. The entry of this Agreement has been duly and validly authorized by all necessary corporate or other organizational actions and approvals. Your entry of this Agreement is not prohibited by the terms of any document, is not contrary to any law, rule or regulations, and is not in violation of any court or administrative order. 24. The effectiveness of this Agreement shall not commence until we accept your Affiliate Program Application. The effectiveness hereof and binding effect shall occur upon our acceptance of your Affiliate Program Application. This Agreement shall remain in full force and effect until terminated by you or by us. Either of us may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination in compliance with this Agreement. Notices sent hereunder shall be via Email to you at the Email address indicated in your Affiliate Program Application. Any and all notices to you via Email at such address shall be deemed to be effective notice to you for all purposes. 25. You will forfeit all right to receive past commissions that may have accrued to you if this Agreement is terminated as a result of your failure to comply with the terms of this Agreement or any policies and procedures of Affiliate Program that may be established and amended by us in our discretion from time to time. If this Agreement is terminated for any other reason, you will have a right to receive your accrued commissions through the effective date of termination. We have the right to withhold final commission payments for sufficient time in order to assure that the amount paid to you is accurate and not subject to later adjustment for returns or any other reason. If following final payment we determine that the amount of commissions that you were paid was too high, as a result of subsequent returns or any other adjustment or reason, the differential shall be a debt from you to us and we shall have all legal right to receive a refund of such overpaid commission from you. 26. We reserve the right in our sole and absolute discretion, to modify any terms and conditions of the Affiliate Program and the terms and conditions of this Agreement upon notice to you. Notice of any changes may be given via Email to you or by posting such changes in the Affiliate Program sections of our web site. Such changes and modifications will take effect upon transmission of Email or posting on our web site. You may terminate participation in the Affiliate Program in the event that any of these modifications are unacceptable to you and such termination shall be your sole and exclusive remedy. In the event that you continue to participate in the Affiliate Program following such modifications, you will be deemed by your continued participation to accept any and all such changes. 27. WE HEREBY DISCLAIM ANY AND ALL WARRANTIES AND LIABILITY RELATED TO ANY DOWNTIME OR FAILURE FOR USERS TO BE ABLE TO ACCESS OUR WEB SITE OR TO ACCESS OUR WEB SITE USING THE LINK FROM YOUR WEB SITE. FURTHERMORE, WE SHALL NOT BE RESPONSIBLE FOR AND HEREBY DISCLAIM ANY AND ALL WARRANTIES RELATED TO OUR WEB SITE, THE AFFILIATE PROGRAM, YOUR PARTICIPATIONS IN THE AFFILIATE PROGRAM, YOUR ABILITY TO MAKE ANY COMMISSIONS OR OTHERWISE PROFIT THROUGH PARTICIPATION IN OUR AFFILIATE PROGRAMS, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY, NON-INFRINGEMENT, OR ANY CLAIM MADE BASED UPON OUR COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT REPRESENT OR WARRANT THAT OUR WEB SITE OR ANY APPLICATION, INCLUDING BUT NOT LIMITED TO OUR LINK TRACKING FEATURES, WILL BE ERROR FREE OR THAT THEY WILL FUNCTION WITHOUT INTERRUPTION. 28. WE SHALL NOT BE RESPONSIBLE FOR ANY DIRECT OR INDIRECT DAMAGES OR LIABILITIES OF ANY NATURE, INCLUDING BUT NOT LIMITED TO INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, LOSS PROFITS, LOST BUSINESS OPPORTUNITY OR ANY OTHER DAMAGES; REGARDLESS OF WHETHER WE WERE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME AND TOOK NO ACTION TO PREVENT THE SAME. 29. Without limiting the forgoing, our total liability for any damages arising hereunder shall never exceed the total commissions paid and payable by us pursuant to the terms hereof. 30. In the event that any information is disclosed to you through your participation in the Affiliate Program related in any way to our company and business which we deem to be confidential and proprietary, you agree to hold such information in the strictest of confidence and not to disclose such information to any other party or to use any such information for your own purposes. Confidential information will include any information regarding our changes or modifications to this Agreement or our Affiliate Program (which we shall have no obligation to make) or any special treatment that you may receive (which we reserve the right to provide in our sole discretion to any affiliate). Confidential information shall also include any and all information related to our business, business plans, marketing plans, user statistics, financial information, pricing, profits, membership information, affiliations, sales information, and all other information which we consider to be confidential and proprietary. 31. You hereby indemnify and hold us, and all of our stockholders, officers, directors, employees, contractors, affiliates, agents, successors and assigns harmless from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto, that we may incur and which are based in whole or in part upon your participation in the Affiliate Program, any claims that any of your trademarks and other proprietary material infringe upon the rights of any other party, your breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies of participation in the Affiliate Program, or any claim related directly or indirectly to your use, operation or the content of your web site. 32. The terms of this Agreement or any dispute regarding this Agreement or the Affiliate Program shall be governed under the laws of the state of Washington. This Agreement shall be deemed to have been entered in the State of Washington. You submit to the jurisdiction of the courts of the state of Washington and agree that any legal actions related hereto shall be in the courts of Whatcom County, in the State of Washington. 33. The parties hereto are independent contractors and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint ventures, shareholders, employer/employee, agent/servant. You have no power or authority to bind us to any obligation, agreement, debt or liability. You shall not hold yourself out as an agent or representative of our company. 34. Notices to us shall be by certified mail, return receipt requested addressed to Tapestry-tapestry.com, PO Box 323, Blaine, Washington, 98231-0323 or such other address that we provide notice of to you via Email or by posting the same on the Affiliates section of our web site. Notices to you shall be by Email addressed to the Email address that you provided to us in your Affiliate Program Application or by posting such notices on the Affiliate section of our web site. It shall be your responsibility to check the Affiliate section of our web site periodically to monitor all notices set forth thereon. 35. This Agreement is only for the benefit of the party that you list in the Affiliate Program Application. You shall have not right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void. 36. If any provision or term of this Agreement is held to be invalid for any reason, it shall not affect the enforceability of the remainder of this Agreement or any other term or condition of this Agreement. 37. This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof and supercedes any and all prior discussions, understandings, agreements, representations, warranties or covenants between the parties related to the subject matter hereof. This Agreement may only be amended by a writing signed by the authorized representative of each of the parties, except as otherwise set forth herein. Any waiver of a breach or default under this Agreement shall not constitute a waiver of any subsequent or other breach or default and shall not serve to modify the agreements set forth herein. 38. YOU REPRESENT, WARRANT, ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY AND FULLY UNDERSTAND AND AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN. SCHEDULE A COMMISSION RATE STRUCTURE The amount of referral commissions due to affiliates will be as follows: For a sale, which we make as a result of a direct referral by an affiliate, that affiliate will receive a commission fee of 18% of the selling price of the product sold. This is known as a first-tier referral commission. For such a sale as described in the previous paragraph, if the affiliate who made the direct referral is a sub-affiliate of another affiliate, the second affiliate will generally be eligible for a commission fee of 5% of the selling price of the product sold. This is known as a second-tier referral commission. I
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