Walmart.com Operating Agreement for Affiliate Network This Agreement contains the complete terms and conditions that apply to a party’s participation as an affiliate in the Affiliate Network of Walmart.com (the “Program”). As used in this Agreement, “we” means Walmart.com USA, LLC (and its parent company and related entities), and “you” means the applicant party. “Site” means a World Wide Web site and, depending on the context, refers either to the Walmart.com site or to the site that you will link to our site. 1. Enrollment in the Program You may submit a completed Program application to begin the enrollment process. Submission of your application to the Walmart.com affiliate Program implies acceptance to the terms set forth in this Agreement. We will evaluate your application and notify you of your acceptance or rejection. We may reject your application if, in our sole discretion, we determine for any reason that your site is unsuitable for the Program. Unsuitable sites include, but are not limited to, those that: · Promote sexually explicit material · Promote violence or hate toward any persons or groups · Promote illegal activities · Promote alcohol, tobacco, gambling/lottery in any way · Promote the use of pyramid, “ponzi”, or similar investment schemes · Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age · Contain, in our sole judgment, material that is defamatory, fraudulent, or harassing to us or any third party · Include “walmart”, “wal-mart” or variations or misspellings thereof in their domain names · Otherwise violate intellectual property rights of Walmart.com, Wal-Mart Stores or its suppliers · Disparage Walmart.com, Wal-Mart Stores or their suppliers · Are under construction or not live at the time of application · Require a username and password to access · Are non-US based or are sites that primarily serve a non-US based audience In addition, we will not accept sites that provide a portion of their commission or affiliate benefits to sites or organizations that violate any of the above criteria. We also will not accept sites that provide rewards back to their members in the form of points or cash-back, or conduct other similar loyalty programs in connection with purchases made by members via their sites. In addition, we will not accept sites that donate, direct or transfer any portion of their commission, Referral Fees or affiliate benefits to any charitable site, organization or program, other than those that are education-related. Regardless of your acceptance in the Program, we may terminate this Agreement for any reason, at any time. The terms of this Agreement and our acceptance criteria are subject to change at any time without prior notice. All decisions for acceptance into the Walmart.com affiliate Program will be made within our sole discretion. If your Application is not accepted, you may reapply to the Program at any time; however, you should not and may not link to our site unless you are approved for the Program. 2. Links on Your Site You will link your site to areas within our site using special URLs specified in the Program (the "Required URLs"). You may post as many links to the Required URLs and the rest of our site as you like on your site. The position, prominence and nature of links on your site shall comply with any requirements specified in this Agreement but otherwise will be in your discretion. General Link to Walmart.com Home Page: You may provide a general link on your site to our home page in a format to be approved by us. We will provide you with guidelines and graphical artwork to use in linking to our home page. You acknowledge that, by participating in the Program and placing a link to Walmart.com (or any category page therein) on 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 our Privacy Policy. 3. Prohibitions You understand and acknowledge that this Agreement is made between you and Wal-Mart.com USA, LLC and is solely for the purpose of allowing you to link to the Walmart.com website. You may not use the name Wal-Mart, or any variation thereof, in any manner not expressly authorized by this Agreement. You may not use the Walmart.com name, or any variation thereof, in any manner not expressly authorized by this Agreement. In particular, you may NOT use Walmart.com’s name, or any variation thereof, in metatags; you may NOT use Walmart.com’s name, or any variation thereof, in hidden text or source code; you may NOT use Walmart.com’s name, or any variation thereof, in your domain name or any other part of your Universal Record Locator (URL); you may NOT engineer your site in such a manner that pulls Internet traffic away from Walmart.com. If your site is accepted to the Program and donates, directs or transfers any portion of its referral fees to any school or other education-related foundation, charitable organization or program, you may not state or imply that Walmart.com endorses such activities or is responsible in any way for the inclusion and donation of funds to any of the schools, foundations or charities associated with your site. You may not wrap or frame Walmart.com’s site in any manner without first obtaining in advance our express written permission. Such requests must be made in writing and sent to Walmart.com, Attn: Affiliate Program Manager, 7000 Marina Boulevard, Brisbane, CA, 94005. * Prohibitions regarding use of email: You may NOT do any of the following unless you first obtain in advance Walmart.com’s express written permission. Such requests must be made in writing and sent to Walmart.com, Attn: Affiliate Program Manager, 7000 Marina Boulevard, Brisbane, CA, 94005. These prohibitions are in addition to, and not in place of, all prohibitions and restrictions that you are bound to under the LinkShare Affiliate Membership Agreement, as amended, as well as all prohibitions and requirements under the federal CAN-SPAM Act of 2003 and all other applicable laws and regulations. · You may not generate or send any email messages or other “electronic messages” (as defined in the LinkShare Affiliate Membership Agreement, as amended) using or containing Walmart.com's name or logo, or any variation thereof, or the Wal-Mart name or logo, or any variation thereof, or any of our Trademarks (as defined below) or products, or any of the Required URLs or other links or URLS provided to you as part of the Program. · You may not send any email or other "electronic messages" that in any way suggests or implies or misleads or is likely to mislead (including without limitation, via the return address, subject heading, header information or message contents) a recipient into believing that Walmart.com, Wal-Mart Stores or any related entity was the sender or sponsor of such email or procured or induced you to send such email. · You may not forward, redistribute, or otherwise repurpose any email communications or newsletters or other “electronic messages” that Walmart.com sends to its affiliates and/or customers. · You may not generate or send any unsolicited email (spam) under this Agreement or any email in violation of the CAN-SPAM Act of 2003 or any other applicable laws or regulations. Violation of any of the terms or prohibitions contained in this Agreement may result in, among other things, the immediate termination of this Agreement and/or the commencement of an action by Walmart.com against you seeking, without limitation, injunctive relief and/or recovery of actual, statutory and/or punitive damages. In addition, you shall protect, defend, indemnify and hold harmless us and our parent and related entities from and against any claims, actions, liabilities, losses, damages, costs or expenses, including without limitation, attorneys' fees and costs of litigation, even if such claims are groundless, fraudulent or false, incurred by us or our parent or related entities arising out of any content or activity by you or on your site or resulting from or in connection with your violation of any of the terms or prohibitions contained in this Agreement or any law, rule or regulation, including without limitation, claims for unsolicited email (spamming) or under the CAN-SPAM Act of 2003 or other violations of third party intellectual property rights, rights of privacy or publicity rights. 4. Order Processing We will process product orders placed by customers who follow special links from your site to the Walmart.com site in accordance with applicable legal requirements. We reserve the right to reject orders that do not comply with any reasonable requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare orders forms; process payments, cancellations, and returns; and handle customer service. We will track sales made to customers who purchase products using special links from your site to our site and will send you reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time in our reasonable discretion. To permit accurate tracking, reporting, and fee accrual, you must ensure that the special links between your site and our site are properly formatted. 5. Referral Fees We will pay you referral fees on certain product sales to third parties. For a product sale to generate a referral fee, the customer must follow a special link (in the format specified by Walmart.com) from your site to the Walmart.com site; purchase the product using our automated ordering system; accept delivery of the product at the shipping destination; and remit full payment to us. We will not pay referral fees on any products that are added to a customer’s Shopping Cart after the customer has re-entered our site (other than through a special link from your site), even if the customer previously followed a link from your site to our site. Pharmacy, Travel, Financial Services, Internet Access, Gift certificates and Wal-Mart Shopping cards (except for online-only shopping cards) are not eligible to earn referral fees. Customer Service invoice adjustments and reorders are not eligible to earn referral fees. Products that are entitled to earn referral fees under the rules set forth above are hereinafter referred to as “Qualifying Products.” 6. Fee Schedule You will earn referral fees based on the sale price of Qualifying Products (as defined above), according to fee schedules to be established by us. “Sale price” means the sale price listed on our site and excludes costs for shipping, handling, gift-wrapping, rebates, refunds, returns, chargebacks, cancellations and taxes. The current fee schedule is: Product Category Monthly Gross Sales Commission Maximum Payout Gifts 12% None Jewelry 12% None Books 8% None Toys 8% None Electronics 6% None Sports 8% None Home 8% None Lawn & Garden 8% None Video Games 5% None Music 5% None Music Downloads 5% None Movies 5% None Optical 8% None Photo Center 8% None Tires 8% None Other 5% None DVD Rentals Subscriptions* N/A $20 *only for subscriptions paid through one billing cycle after any free trial period Because of the volume and breadth of items that we carry on our site and our practice of continuing to add new items over time, certain items may not be listed in the commission database at the time purchases are made through your site. Therefore, you acknowledge that we cannot and do not warrant or guarantee that all items will be paid in accord with the gross sales commission rates listed above. In those instances payouts may be limited to commission rates of 5%. You acknowledge that in such circumstances, you will accept the commission rates and payouts actually paid to you. 7. Fee Payment Linkshare will pay you referral fees on a monthly basis. Approximately 30 days following the end of each calendar month, you will receive a check for the referral fees earned on products that were shipped during that quarter, less any taxes that we are required by law to withhold. However, if the fees payable to you for any calendar quarter are less than $75.00, we will hold those fees until the total amount due is at least $75.00 or (if earlier) until this Agreement is terminated. 8. Policies and Pricing Customers who buy products through this Program will be deemed to be customers of Walmart.com without affecting their status as your customer. Accordingly, all Walmart.com rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers with respect to their transactions at Walmart.com. We may change our policies and operating procedures at any time consistent with applicable laws. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. Because price changes may affect products that you already have listed on your site, you may not include price information in your product descriptions. We will use commercially reasonable efforts to present current and accurate information, but we cannot guarantee the availability or price of any particular product. 9. Identifying yourself as an Affiliate We will provide you with a graphic image that identifies your site as a participant in the Program. You must display this image or the words “Participant in Walmart.com Affiliate Program” somewhere on your site. The logo or phrase may also be linked to the following message: “Walmart.com is proud to have (your name) as a participant in the Walmart.com Affiliate Program. We’ve agreed to ship products and provide customer service for orders we receive through special links on (your site). We encourage you to visit (your site) often. Thank you for shopping with a Walmart.com Affiliate. If you have a question about an order you’ve placed, please don’t hesitate to contact us.” We may modify the graphic image or this notice from time to time. In addition, we encourage (but do not require) you to include a link to the Walmart.com home page at http://www.Walmart.com. If your site is accepted to the Program and is engaged in the practice of directing, transferring, or donating to any school or other education-related foundation, charitable organization or program any portion of the Referral Fees paid to you by Walmart.com, you must provide the following message: “All donations, transfers and pledges of money to any schools, foundations or other types of charitable or philanthropic organizations are made at the sole direction of (your site) and, (if applicable) of (your site’s) members. Walmart.com is proud to have (your name) as a participant in the Walmart.com Affiliate Program. Walmart.com is not associated with any of the schools, charities or foundations associated with (your site) and makes no endorsement, express or implied of their activities. We’ve agreed to ship products and provide customer service for orders we receive through special links on (your site), but we are not responsible for selecting, evaluating or making donations to any of the organizations associated with (your site). We encourage you to visit (your site) often. Thank you for shopping with a Walmart.com Affiliate. If you have a question about an order you’ve placed, please don’t hesitate to contact us.” 10. Limited License We grant you a limited, nonexclusive, nontransferable, revocable right to use the image and message described in Section 9 and such other images for which we grant express permission, for the sole purpose of identifying your site as a Program participant and to assist in generating product sales, subject to the terms and conditions of this Agreement. You may not modify the image, the message, or any of our images in any way. We reserve all of our rights in the image, the message, any other images, our trade names and trademarks, and all other intellectual property rights. You agree to follow our Trademark Guidelines (see below), as those may change from time to time. We may revoke your license at any time by giving you written notice. 11. Responsibility for Your Site You will be solely responsible for the development, operation, and maintenance of your site and for all content that appears on your site. For example, you will be solely responsible for: * the technical operation of your site and all related equipment * creating and posting product descriptions on your site and linking those descriptions to our site * the accuracy, timeliness and appropriateness of content posted on your site (including, among other things, all product-related materials) * ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights) * ensuring that content posted on your site is not libelous or otherwise illegal 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. 12. Term of the Agreement The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon termination, all Walmart.com related content and links shall be promptly removed from your site. You are only eligible to earn referral fees on sales of Qualifying Products occurring during the term, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. In the event overpayment is made by us, you agree to promptly remit such excess payment upon notification by us. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. 13. Modification We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our site. We will also make commercially reasonable efforts to notify you of such changes prior to or upon implementation. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE AND/OR SENDING YOU THE CHANGE NOTICE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE. 14. Relationship of Parties You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section. 15. Indemnification You acknowledge that by entering into and performing its obligations under this Agreement, we do not assume and should not be exposed to the business and operational risks associated with your business, or any aspects of the operation or content of your web site(s). Accordingly, in addition to any other indemnification obligations contained in this Agreement, you shall protect, defend, hold harmless and indemnify us and our parent or related entities from and against any and all claims, actions, liabilities, losses, costs and expenses, even if such claims are groundless, fraudulent or false (including court costs and reasonable attorneys' fees) incurred as a result of claims of customers or other third parties against us and our affiliates, licensors, suppliers, officers, directors, employees and agents arising from or connected with any of the content or activities of your site (including without limitation any activities or aspects thereof or commerce conducted thereon) or related business, or your misuse, unauthorized modification or unauthorized use of the services or materials provided by us hereunder. 16. Limitation of Liability We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even is we have been advised of the possibility of such damages. 17. Disclaimers We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors; however, we will make commercially reasonable efforts to correct errors or interruptions promptly. 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) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATIONS, GUARANGEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. 19. Miscellaneous This Agreement will be governed by the laws of the United States and the state of Arkansas, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts having jurisdiction and venue in or for Benton County, Arkansas and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure or agreement not to enforce your strict performance of any provision of this Agreement in a given instance will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this agreement. Guidelines for Using the WALMART.COM Trademarks These guidelines apply to your use of WALMART.COM and other trademarks and service marks belonging to Wal-Mart.com USA, LLL, Wal-Mart Stores, Inc. or other related entities (the “Trademarks”) in content that has been approved by us. 1. You may use the Trademarks only for purposes expressly authorized by us. 2. You may not modify the Trademarks in any manner. For example, you may not change the proportion, color, or font of the Trademarks. 3. You may not display the Trademarks in any manner that implies endorsement of your web site or business by Walmart.com outside of your involvement in the Program. 4. You may not use the Trademarks to disparage Walmart.com, its products or services, or in a manner which, in our reasonable judgment, may diminish or otherwise damage our good will in the Trademarks. 5. Each Trademark must appear by itself, with reasonable spacing (at least the height of the Trademark) between each side of the Trademark and any other graphic or textual image. You may place the Walmart.com name or logo adjacent to competitive brands, subject to the requirements of this Agreement, including prohibitions against objectionable material and sites. 6. You must use the TM symbol next to the trademarks. You must use the SM symbol next to the service marks. 7. You must include the following statement in your materials that include the Trademarks: “WALMART.COM SM is a service mark of Wal-Mart.com USA, LLC and Wal-Mart Stores, Inc.” You must include similar statements for any other Trademarks used on an ongoing basis in your materials. 8. You acknowledge that all rights to the Trademarks are our exclusive property and all goodwill generated through your use of the Trademarks will inure to our benefit. In addition to all terms and prohibitions contained in the Walmart.com Operating Agreement for Affiliate Network, you must abide by the following Prohibitions: YOU MAY NOT USE THE TRADEMARKED NAMES, WAL-MART OR WAL-MART STORES, IN ANY MANNER; YOU MAY NOT USE WALMART.COM’S NAME, OR ANY VARIATION THEREOF, IN METATAGS; YOU MAY NOT USE WAL-MART, WALMART.COM, OR ANY VARIATIONS THEREOF, IN HIDDEN TEXT OR SOURCE CODE; YOU MAY NOT USE WAL-MART, WALMART.COM, OR ANY VARIATIONS THEREOF, IN YOUR DOMAIN NAME OR ANY OTHER PART OF YOUR UNIVERSAL RECORD LOCATOR (URL). We reserve the right in our sole discretion to modify these guidelines at any time. We reserve the right to take action against any use that does not conform to these guidelines.