AFFILIATE AGREEMENT


Background

Affiliate and Merchant are each enrolled in The LinkShare Network? (“Linkshare”), an online service which brings 
together merchants who wish to advertise their services online and affiliates who wish to place such advertisements 
on their web sites.

Terms and Conditions

Now, therefore, the parties agree as follows:

1.Offers and Engagements.

1.1.	In its discretion, Merchant may post on Linkshare offers to pay Affiliate and other LinkShare participants 
a specified commission on Qualifying Transactions (as defined below) completed as a result of a Consumer (as defined below) 
linking through specific Qualifying Links (as defined below).  A Qualifying Link uses the specific URL provided by Merchant 
for such link (the “URL Mark”), through which a Consumer purchases the service(s) described in the Qualifying Link.  
Each Qualifying Link is identified by a unique code generated by a URL provided by Merchant and the offer tracking code 
generated by Linkshare.  Once an offer receives an identification number from Linkshare, it shall be deemed to be 
an “Offer” for purposes of this Agreement.  The term “Offer” shall also include any special or private offers by either 
party agreed to by Merchant

1.2.	If an Offer is accepted by Affiliate and such acceptance is agreed to and confirmed by Merchant, all in 
accordance with the Offer’s terms via Linkshare, an “Engagement” is formed. Each Engagement shall be governed by 
the terms and conditions of this Agreement.

1.3	At any time prior to Affiliate providing a Qualifying Link, Merchant may with or without notice (a) change, 
suspend or discontinue any aspect of an Offer or an Engagement or (b) remove, alter, or modify any graphic or banner 
ad submitted by Merchant for an Offer or an Engagement

2.	Responsibilities.  

2.1.	Affiliate will post Qualifying Links using the URL Mark specified in the Engagement.  The position of the 
Qualifying Links on Affiliate’s site shall comply with any requirements specified herein, but may otherwise be in 
the discretion of Affiliate. Merchant may remove, alter, or modify any URL Mark for any Offer or Qualifying Link 
at any time in its sole discretion.  Affiliate agrees to promptly update any affected URL Mark on its site.  
Affiliate shall not, and shall not permit or assist any other party to, modify all or any part of any URL Mark or 
make copies of all or part of any URL Mark, except as may be expressly and clearly permitted by this Agreement.

2.2.	Affiliate agrees not to make any representations, warranties or other statements concerning Merchant, 
Merchant’s sites, any of Merchant’s products or services, or Merchant’s site policies, except as expressly authorized 
in a specific Engagement.  

2.3.	Affiliate is responsible for notifying Merchant and Linkshare of any malfunctioning URL Mark or other 
problems with Affiliate’s participation in the Engagement.

2.4.	Consumers who click through to Merchant’s site through a Qualifying Link shall experience Merchant’s 
site exactly as presented by Merchant. Without limiting the foregoing, Affiliate shall not “frame” users’ 
access of Merchant’s site in any manner, including without limitation, with advertisements, branding or 
any other material or advertising.  Additionally, Affiliate shall not transmit any so-called “interstitials,” 
ParasiteWare,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar installations/Add ons,” 
“Shopping Wallets” or “deceptive pop ups/unders” to Consumers from the time the Consumer clicks on a Qualifying 
Link until such time as the Consumer has fully exited Merchant’s site (i.e., no page from Merchant’s site or 
any Merchant content or branding is visible on the Consumer’s screen).

As used herein “ParasiteWare?” and “Parasitic Marketing” shall mean an application that (a) through accidental 
or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any 
other means than a customer initiated click on a Qualifying Link on a web page or email; (b) intercepts searches 
to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be 
put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances 
have arrived at the same destination through the results given by the search (search engines being, but not 
limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot, LookSmart and similar search or directory engines); (c) 
set commission tracking cookies through loading of Merchant site in IFrames, hidden links and automatic pop ups 
that open the Merchant site; (d) targets text on web sites, other than those web sites 100% owned by the application 
owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners 
with any other banners, other than those that are on web sites 100% owned by the owner of the application.

2.5.	Affiliate shall not, and shall not permit any companies with links on Affiliate’s site(s) to, offer for 
sale any illegal goods or services, pornographic or adult-themed material, get rich quick schemes, gambling or 
any other goods or services that Merchant, in its sole discretion, may deem inappropriate.

2.6.	Except and only to the extent specifically set forth in this Agreement, Affiliate shall not acquire any 
right under this Agreement to use the URL Mark or any names belong to GT Merchandising  & Licensing LLC:  (a) 
in any advertising, publicity, or promotion; (b) to express or to imply any endorsement of Affiliate’s products 
or services; or (c) in any other form or manner.

2.7.	Affiliate sites that use pop ups/unders for the purpose of aiding shoppers may not use such pop ups/unders 
to set or overwrite a commission tracking cookie, deceive the shopper or redirect the shopper from Merchant site at 
anytime for any purpose. Pop ups/unders must be free of any kind of link.

2.8.	Affiliate shall not at any time register or use a domain name that is derived, in whole or in part, from 
Merchant Properties (as defined below).

2.9.	Affiliate shall not automatically set tracking cookies on the Consumer's computer in any way (i.e. only 
direct clicks on a Qualifying Link by a site visitor may be used as a way to initiate the creation or overwriting 
of a tracking cookie).

2.10.	Affiliate shall not at any time use Merchant Properties in cost per click, pay per click, paid listings, 
paid online advertising or any other capacity within search engines or web directories; including, without limitation 
trademarked names and common misspellings of such trademarks.

2.11.	Affiliate shall not initiate or cause in any way a “Drive by Installation” on a Consumer’s computer.  
A “Drive by Installation” program that is one that is downloaded or installed without the Consumer requesting such 
download or installation.

2.12.	Affiliate shall not distribute any email containing a Qualifying Link or Merchant Properties without Merchant’s 
prior written approval.

2.13.	Any breach of any of the provisions of this Section shall be deemed a material breach by Affiliate of its 
Engagement and this Agreement and Merchant reserves the right to immediately terminate all Engagements and this 
Agreement and seek any resulting damages.

3.	Referral Fees.  

3.1.	Merchant agrees to pay Affiliate a referral fee as specified in the Engagement if a visitor to Merchant’s site 
(a “Consumer”) completes a Qualifying Transaction.  A Qualifying Transaction shall not be considered complete until 
such transaction has been validated and completed through Merchant’s internal system, and in no event shall a terminated 
transaction be considered complete; all determinations of whether a Qualifying Transaction is complete shall be made by 
Merchant, and shall be deemed conclusive.  A referral fee shall not be paid for any Qualifying Transaction that is 
completed as a result of a breach by Affiliate of any provision of Section 2 above.  If a referral fee is paid on 
a Qualifying Transaction that is later terminated or is determined to be a result of a breach by Affiliate of Section 2 
above, Affiliate shall immediately repay any commission previously received for such transaction.  As used herein 
a “Qualifying Transaction” is any transaction for which Merchant agrees to pay a referral fee as defined in an Offer 
and for which a Consumer has accessed Merchant’s site and completed the Qualifying Transaction via a Qualifying Link. 

A “Qualifying Link” is a link from Affiliate’s site to Merchant’s using one of the Required URLs or any other URL 
provided by Merchant for use in Linkshare if the Consumer completes a Qualifying Transaction during a Session; however, 
if a Consumer links from another affiliate during a Session, the Qualifying Link shall be considered to be from 
the last affiliate site the Consumer visited prior to completing the Qualifying Transaction.  A “Session” is the 
period of time beginning from a Consumer’s initial contact with Merchant’s site via a link from the Affiliate’s site 
and terminating at midnight mountain time on the last Return Day, as defined in the Offer.  All determinations of 
completed Qualifying Links and whether a referral fee is payable will be made by Merchant in consultation with Linkshare 
based upon Linkshare’s reports, and shall be deemed conclusive.

3.2.  Merchant agrees to pay the referral fees to Affiliate on a monthly basis; provided however that a payment will 
not be made until Affiliate has accrued over $25 in referral fees.

3.3. Merchant shall have the sole right and responsibility for processing all orders made by Consumers. Affiliate 
acknowledges that any and all agreements relating to sales to Consumers shall be between Merchant and the Consumer. 

4.	Ownership and Licenses. 

4.1.	Affiliate acknowledges that Merchant is the exclusive owner of the URL Mark, any trademarks, trade names, 
service marks and logos therein (the “Trademarks”), and any trademark incorporating all or any part of the Trademarks.  
Without limiting the foregoing, Affiliate hereby assigns to Merchant all right, title and interest in the 
Trademarks, together with the goodwill attaching thereto that may inure to Affiliate in connection with this 
Agreement or from Affiliate’s use of the Trademarks hereunder.  Affiliate agrees to execute and deliver such 
documents as Merchant requires to register Affiliate as a registered or permitted user of the Trademarks and 
to follow Merchant’s instructions for the proper use thereof.  Affiliate agrees and acknowledges that in the 
event Affiliate breaches any term or condition of this Section 4, Merchant’s remedy at law will not be entirely 
adequate, and Affiliate hereby agrees that in the event of any such breach and commencement of an action against 
it by Merchant, it shall, at the request of Merchant, consent to the entry of an injunction prohibiting Affiliate 
use, in any way, of the Trademarks and URL Mark during the pendency of the action brought in said court by Merchant 
in connection with the aforesaid breach.

4.2.	Except as expressly set forth herein, Merchant does not grant Affiliate any right or license in the URL Mark, 
the Trademarks, Merchant’s sites, any Merchant merchandise or any portion of any of the foregoing (collectively 
“Merchant Properties”).  Merchant retains all right, title and interest in the Merchant Properties, and all 
materials related to the foregoing, including without limitation, all copyright, trade secret, trademark and 
other intellectual property rights therein.  Except as expressly set forth in this Agreement or permitted by 
applicable law, Affiliate may not copy, distribute, modify, reverse engineer, or create derivative works from 
the Merchant Properties. 

4.3.	Affiliate will not, nor will it encourage or assist a third party to, register or attempt to register as 
a copyright, trademark, service mark, design patent or industrial design any Merchant Properties, or derivations 
or adaptations thereof, or any work, symbol or design which is so similar thereto as to suggest association with 
or sponsorship by Merchant or any Merchant affiliate.  In the event of any breach of the foregoing, Affiliate agrees, 
at its sole expense and at Merchant’s request, immediately to terminate the unauthorized registration activity and 
promptly to execute and deliver, or cause to be delivered, to Merchant such assignments and other documents as Merchant 
may require to transfer to Merchant all rights to the registrations, patents or applications involved.  Affiliate 
will not, nor will it encourage or assist a third party to, challenge the validity or ownership of any patent, 
copyright, trademark, or other intellectual property registration of Merchant or any Merchant affiliate.

4.4.	Merchant grants Affiliate a revocable, nonexclusive, nontransferable license, without right of sublicense, 
to use and reproduce the URL Mark on Affiliate’s site solely for the purpose of creating Qualifying Links pursuant 
to the Engagement in accordance with the terms herein.  

4.5.	Merchant shall own and retain all right, title and interest in all names, addresses and other identifying 
information of Consumers visiting Merchant’s sites (“Consumer Data”) which is collected by Merchant, including without 
limitation, Consumers who access Merchant’s sites through Qualifying Links, and Affiliate shall have no right to 
return, collect or use any Consumer Data.

5.	Termination.  

5.1.	The Engagement shall commence on the date Merchant confirms its acceptance of Affiliate’s acceptance of 
the applicable Offer and shall automatically terminate on the date set forth in the Engagement unless otherwise 
extended on the parties’ mutual agreement. 

5.2.	Either party may terminate this Agreement at any time, for any reason, provided that it provides written 
notice via designated e-mail address of such termination to the other party and Linkshare. Termination of this 
Agreement shall also terminate any outstanding Engagement.  Merchant shall have the right to terminate this 
Agreement immediately, (a) upon a breach of any obligation hereunder by Affiliate; (b) in the event Affiliate 
becomes insolvent (i.e., unable to pay its debts in the ordinary course as they come due); (c) Merchant determines, 
in its sole discretion, that compliance with this Agreement would cause Merchant or any of its affiliates to violate 
or potentially violate any local, state or federal law or regulation or any court order; (d) any representation made 
or information provided to Merchant by Affiliate was false or misleading at the time of such disclosure; or (e) 
there is a material adverse change in Affiliate’s financial condition, business prospects or any other condition as 
Merchant may determine.

5.3.	Upon the expiration or termination of this Agreement for any reason, (a) Affiliate shall immediately remove 
all Qualifying Links from its site and cease all use of the URL Mark; (b) Affiliate shall immediately destroy all copies 
of and erase the URL Mark from all computer memories and storage devices within its possession or control, and certify 
in a writing signed by an officer of Affiliate that such materials have been so destroyed and erased; (c) all rights 
herein granted shall revert to Merchant; and (d) any provisions of this Agreement which are to be performed after 
termination to effectuate their intent and purpose shall survive termination of this Agreement, including, but not 
limited to, the following sections: 2, 3, 4, 5, 6 and 7.

6.	Representations and Warranties.  

6.1.	Affiliate represents and warrants that (a) it has the right, power and authority to enter into this Agreement 
and the Engagement and to fully perform its obligations hereunder; (b) the making of this Agreement and any Engagement 
by it does not violate any agreement existing between it and any other person or entity; (c) it complies, and at all 
times shall comply, with all applicable laws, rules and regulations in effect during the term of this Agreement 
pertaining to its operation of its sites, distribution of emails (including, but not limited to, the Federal CAN-SPAM 
Act of January 1, 2004 and any supplements, modifications or amendments thereto) and to the subject matter hereof; 
and (d) it is not a direct competitor of Merchant.

6.2.  Merchant represents and warrants that the URL Mark is owned or licensed by Merchant and does not violate or 
infringe any right of privacy or publicity or any copyright, trademark, patent or other intellectual property right, 
or contain any libelous, defamatory, obscene or unlawful material, or otherwise violate or infringe any other right 
of any third party.

6.3.	EXCEPT AS EXPRESSLY SET FORTH HEREIN, MERCHANT DISCLAIMS ANY AND ALL WARRANTIES, 
EXPRESS OR IMPLIED, WITH RESPECT TO THE URL MARK, THE TRADEMARKS, MERCHANT’S MERCHANDISE 
AND SITES OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) AND SERVICES SUPPLIED HEREUNDER, 
AND MERCHANT HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES WITH RESPECT THERETO,
INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR 
A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7.	Indemnification.
	
7.1.	Affiliate agrees to and shall indemnify, defend and hold harmless Merchant and its successors and assigns 
from and against any and all claims, demands, suits, judgments, damages, costs, losses, expenses (including reasonable 
attorneys’ fees and expenses) and other liabilities incurred by Merchant arising from (a) any breach of any of the 
representations, warranties or agreements made by Affiliate under this Agreement; (b) any unauthorized use by Affiliate 
or any of its subcontractors of any Merchant Properties; (c) Affiliate’s sales and marketing practices or those of its 
representatives and agents, including without limitation, any material misrepresentation, warranty or guarantee made by 
Affiliate or its agents or representatives regarding Merchant services; or  (d) any other claim with respect to Affiliate’s 
sites or any products sold through Affiliate’s sites other than a claim for which Merchant is obligated to indemnify 
Affiliate under Section 7.2 below.  Merchant shall promptly notify Affiliate of any such claim.  Affiliate shall bear 
full responsibility for the defense (including any settlements) of any such claim; provided however, that  (i) Affiliate 
shall keep Merchant informed of, and consult with Merchant in connection with the progress of such litigation or settlement; 
and (ii) Affiliate shall not have any right, without Merchant’s written consent, to settle any such claim if such settlement 
arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment  
of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of Merchant or any of its Affiliates.  

7.2.	Merchant agrees to and shall indemnify, defend and hold harmless Affiliate from and against any and all claims, 
demands, suits,  judgments, damages, costs, losses, expenses (including reasonable attorneys’ fees and expenses) and 
other liabilities incurred by Affiliate as a result of a third party claim arising from any breach by Merchant of 
Section 6.2. Affiliate shall promptly notify Merchant of any such claim.  Merchant shall bear full responsibility for 
the defense (including any settlements) of any such claim; provided however, that (i) Merchant shall keep Affiliate 
informed of, and consult with Affiliate in connection with the progress of such litigation or settlement; and (ii) 
Merchant shall not have any right, without Affiliate’s written consent, to settle any such claim if such settlement 
arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or 
acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of Affiliate.

7.3.	MERCHANT SHALL NOT BE LIABLE TO AFFILIATE OR ANY THIRD PARTY FOR ANY LIQUIDATED, INDIRECT, 
CONSEQUENTIAL, EXTRAORDINARY OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, 
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THIS AGREEMENT, 
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO CASE SHALL MERCHANT’S 
AGGREGATE LIABILITY FOR ALL MATTERS ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER IN 
CONTRACT, TORT OR OTHERWISE, EXCEED FIFTEEN THOUSAND DOLLARS ($15,000).

8.	General.

8.1.	Nothing herein shall restrict either party from entering into any agreement with any other party, even if similar 
to or competitive with the transactions contemplated hereunder.  Without limitation of the foregoing, nothing herein shall 
constrain Merchant from marketing and promoting Merchant services and Merchant’s site in any manner.

8.2.	The parties are independent contractors with respect to each other. Each party is not and shall not be deemed to 
be an employee, agent, partner or legal representative of the other for any purpose and shall not have any right, power 
or authority to create any obligation or responsibility on behalf of the other.

8.3.	This Agreement and the Engagement constitute the complete, final and exclusive agreement between the parties 
with respect to the subject matter hereof, and supersede any and all prior or contemporaneous oral or written representation, 
understanding, agreement or communication between the parties concerning the subject matter hereof.

8.4.	This Agreement, the Engagement and the rights, duties and obligations of Affiliate under the foregoing are personal 
to Affiliate and may not be assigned, delegated or otherwise transferred, whether by operation of law or otherwise, 
without the prior written consent of Merchant.  Any attempted assignment, delegation or other transfer by Affiliate 
in violation of this Section 8.4. shall be void and shall constitute a material breach of this Agreement.

8.5.	This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict 
interpretation or construction in favor of or against any party.  Each party has had the opportunity to consult with 
counsel in its contemplation of this Agreement.  

8.6.	If any restriction, covenant or provision of this Agreement shall be adjudged by a court of competent jurisdiction 
to be void, such restriction, covenant or provision shall apply with such modifications as may be necessary to make it 
valid and effective and the validity, legality and enforceability of the remaining provisions contained herein shall 
not in any way be affected or impaired.

8.7.	The construction, interpretation and performance of this Agreement, as well as any case or controversy arising 
out of the parties’ relationship that is related to or contemplated by this Agreement, shall be governed by and construed 
in accordance with the domestic laws of the State of New York without regard to its conflict of law provision.  The parties 
agree that any action at law or in equity arising out of or relating to this Agreement shall be filed only in the state 
or federal courts located in New York County, New York.  The parties hereby consent and submit to the personal jurisdiction 
of such courts for the purposes of litigating any such action.

9.	Notices

9.1	Notices required or permitted hereunder shall be sufficient if transmitted in writing and delivered by hand, 
overnight courier, or telecopier, or mailed by registered or certified first class mail, postage prepaid, return receipt 
requested, and addressed to the parties at their respective addresses set forth above or to such other addresses as either 
party may subsequently designate by notice.  Such notice shall be deemed given when actually delivered.

10.	Confidentiality

10.1.	All material and information supplied by Merchant to Affiliate under this Agreement, including, without limitation, 
information concerning Merchant’s marketing plans, technological developments, objectives and financial results and other 
materials developed by the parties related to the Agreement, are confidential and proprietary to Merchant (collectively, 
“Confidential Information”).  Confidential Information shall be used by Affiliate solely in the performance of its 
obligations under this Agreement and Affiliate agrees not to disclose Confidential Information to any third party, 
except as may be necessary to perform its obligations pursuant to this Agreement.  Affiliate shall return to Merchant 
all Confidential Information upon request or termination of this Agreement. Affiliate agrees not to disassemble, decompile 
or reverse engineer any software provided by Merchant under this Agreement.

10.2.	Affiliate agrees that it will not issue any press release, make any public announcement or otherwise advertise, 
publish, or disclose the entry into or execution of this Agreement, its nature or the terms and conditions hereof, without 
the prior written approval of Merchant.

11.	Independent Investigation

11.1.	Affiliate acknowledges and agrees that it has read this agreement and agrees to all its terms and conditions. 
Affiliate understands that Merchant may at any time (directly or indirectly) solicit third party referrals on terms that 
may differ from those contained in this agreement or operate web sites that are similar to or compete with Affiliate’s 
web site.  Affiliate has independently evaluated the desirability of participating in the program and is not relying on 
any representation, guarantee, or statement other than as set forth in this agreement.



IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date of the creation of the first Engagement 
between the parties.