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This PetSmart Affiliate Agreement (“Agreement”) contains the terms and conditions that apply to an individual or entity’s participation in PetSmart, Inc.’s Affiliate Program, which is operated through the Rakuten Affiliate Network operated by Rakuten Affiliate Marketing. This Agreement is made by and between PetSmart, Inc., a Delaware corporation (“PetSmart”) and you, the applicant (“Partner” or “you”). For the purposes of this Agreement “Site” means the PetSmart site located at petsmart.com or such other sites that PetSmart might designate.
To become a participant in Merchant's Affiliate Program, you must submit a completed Affiliate Program Application available at www.rakuten.com or www.petsmart.com. Merchant will evaluate Partner's application and notify Partner of acceptance or rejection. Merchant may reject the Partner's application if they determine, in their sole discretion, that Partner's site is not suitable for the Affiliate Program for any reason, including, but not limited to, inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable which, by way of example only, contains: (i) sexually explicit, pornographic, or obscene content (whether in text or graphics); (ii) speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise); (iii) graphic violence (which may include certain types of game sites), (iv) content related to liquor, tobacco, firearms, drugs, gambling, crime, or death, (v) politically sensitive or controversial issues (e.g. abortion, capital punishment) or other political content (e.g. lobbyists, political campaigns); or (vi) any unlawful behavior or conduct. If Merchant rejects Partner's application, Partner is welcome to reapply to the Affiliate Program at any time, provided Partner has altered its site to delete all offending content. If Partner is a current or potential vendor or sells any product to Merchant, they are not allowed to participate in Merchant's Affiliate Program.
TERMS AND CONDITIONS
In consideration of the promises set forth below, the parties agree as follows:
1. Offers and Engagements.
1.1. From time to time, Merchant may post on the Rakuten Affiliate Network offers to pay to other participants a specified commission in return for certain advertising services leading to a Qualifying Link (defined below). If such offers receive an identification number from the Rakuten Affiliate Network, they shall be deemed to be an “Offer” for purposes of this Agreement. The term “Offer” shall also include any counter-offers resulting from an Offer.
1.2. If an Offer made by one party is accepted by the other party in accordance with the Offer's terms via the Rakuten Affiliate Network, an “Engagement” will have been formed. Each Engagement shall have the same identification number as the original Offer that lead to the Engagement and shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Engagement and the terms of this Agreement, the terms of the Engagement shall govern.
1.3. At any time prior to Partner 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. Partner agrees to promptly implement any request from Merchant to remove, alter, or modify any graphic or banner ad submitted by Merchant that is being used by Partner as part of an Engagement.
2. Partner's Responsibilities.
2.1. Partner will link its site to areas within Merchant's Site using special URLs specified in the Engagement (the “Required URLs”). Partner may post as many links to the Required URLs and the rest of Merchant's Site as it likes on Partner's site. The position, prominence, and nature of links on the Partner's site shall comply with any requirements specified in the Engagement, but otherwise, will be in the discretion of Partner. Partner is responsible for regularly auditing any custom links it uses to ensure all links are fully functional.
2.2. Partner agrees not to make any representations, warranties, or other statements concerning Merchant, Merchant's Site, any of Merchant's products or services, or Merchant's Site policies, except as expressly authorized by the Engagement.
2.3. Partner is responsible for notifying Merchant and the Rakuten Affiliate Network of any malfunctioning of the Site(s) or other problems with Partner's participation in the Engagement. Merchant will respond promptly to all concerns upon notification by Partner.
2.4. Partner will be solely responsible for: (a) the technical operation of its site and all related equipment; (b) creating and posting product descriptions on its site and linking those descriptions to Merchant's catalog or Site; (c) the accuracy and appropriateness of materials posted on its site; (d) ensuring that materials posted on its site do not violate or infringe upon the rights of any third party (including, but not limited to, copyrights, trademarks, privacy, or other personal or proprietary rights); (e) proper use of the PetSmart name, logo and other intellectual property; and (f) ensuring that materials posted on its site are not libelous or otherwise illegal.
2.5. Partner agrees that its site will not, in any way, copy or resemble the look and feel of Merchant's Site, nor will Partner create the impression that its site is Merchant's Site or is a part of Merchant's Site. Partner also agrees that Partner's site will not contain any content of Merchant's Site or any materials that are proprietary to Merchant, except (i) with Merchant's prior written permission, or (ii) materials obtained by Partner via the Merchant affiliate site in accordance with the provisions hereof or the policies or instructions thereon. Partner further agrees that its domain name does not and will not contain the words “Pet Smart,” ”PetSmart,” ”PetSmart.com,” ”Petmart, ” ”“Pet Mart,” “Smart Pet, ” and/or ”Smartpet, ” or any variation or misspelling thereof. Partner may not use any of the above-mentioned words or misspelling thereof in metags, hidden text, source code, or HTML tags including, but not limited to, page titles or HTML comment tags.
2.6. Purchasing or bidding for the placement of the above-mentioned words in Section 2.5, or any variation or spelling/misspelling thereof within any third party search engine or portal, including, but not limited to, AOL.com, Yahoo!.com, MSN.com, Google.com, excite.com, ask.com, looksmart.com, lycos.com, and metacrawler.com is strictly prohibited. Partner also agrees to the following additional search engine advertising rules:"
- Partner agrees not to drive traffic or attempt to drive traffic to www.petsmart.com through any qualifying link by bidding on any other companies' or competitors' trademarks;
- All advertisements must be directed to Partner's site or a page within Partner's site;
- Advertisements must not link directly to www.petsmart.com or any page within www.petsmart.com;
- Partner will not show www.petsmart.com as the url in their ads;
- Partner will not include any Merchant promotions in their advertisements; and
- Partner will not use the words 'official site' in connection with any use of Merchant's trademarks, or otherwise suggest or imply that their site is an official Merchant Site or partner.
2.7. Unless specifically agreed to between the parties in writing, Partner agrees that it will not employ any software applications, BHO's (browser helper objects), downloadable reminder services, or any other software or code in the form of pop-ups, pop-unders, and pop-overs, to serve messages to shoppers on Merchant's Site or another affiliate's site, designed to divert them or pull them away from the web site he/she is currently shopping. Partner further agrees not to place links in newsgroups, message boards, banner networks, chatrooms, guest books, pop-ups, pop-unders, or pop-overs.
3.1. Merchant agrees to pay Partner the commission specified in the Engagement if Merchant sells to a visitor to Merchant's Site (a 'Customer') a product or service that is the subject of the Engagement, and if that Customer has accessed Merchant's site and purchased the product or service via a Qualifying Link.
3.2. A “Qualifying Link” is a link from Partner's site to Merchant's Site using one of the Required URLs or any other URL provided by Merchant for use in the Rakuten Affiliate Network if it is the last link to the Merchant's Site that the Customer uses during a Session where a sale of a product or a service to Customer occurs. A 'Session' is the period of time beginning from a Customer's initial contact with Merchant's Site via a link from the Partner's site and terminating when the Customer either returns to the Merchant's Site via a link from a site other than Partner's site, the Engagement expires, or it is terminated.
3.3. Merchant shall have the sole right and responsibility for processing all orders made by Customers. Partner acknowledges that all agreements relating to sales to Customers shall be between Merchant and the Customer.
3.4. All determinations of Qualifying Links and whether a commission is payable will be made by the Rakuten Affiliate Network and will be final and binding on both Merchant and Partner. Prices for the products will be set solely by Merchant in its discretion.
4. Ownership and Licenses.
4.1. Each party owns and shall retain all right, title, and interest in its names, logos, trademarks, service marks, trade dress, copyrights, and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights, and proprietary technology currently used or which may be developed and/or used by it in the future.
4.2. Merchant grants Partner a non-transferable, non-exclusive, revocable license to: (i) access Merchant's Site through links established solely as set forth under the terms of this Agreement; and (ii) solely in connection with such links, to use Merchant's logos, trade names, trademarks, service marks, and similar identifying material (collectively, “Licensed Materials”), solely for the purpose of selling Merchant's products on Partner's site. Partner is not permitted to alter, modify, or change the Licensed Material in any way whatsoever. Partner may only use the Licensed Materials to the extent Partner is a member in good standing of the Affiliate Program. Partner may not use any Licensed Materials for purposes other than selling Merchant's products without first submitting a sample of such use to Merchant and receiving Merchant's prior written consent. Partner is not permitted to use the Licensed Materials in any manner that is disparaging or that otherwise negatively portrays Merchant or anyone else. Merchant reserves all of its rights in the Licensed Materials and all other intellectual property rights. Merchant may revoke Partner's license at any time by notice to Partner. Partner acknowledges that, except for the license expressly granted in this Agreement, Partner has not acquired and will not acquire any right, interest, or title to the links or the Licensed Materials by reason of this Agreement or through the exercise of any rights in the links or the Licensed Material granted to Partner under this Agreement. This license shall terminate upon the effective date of the expiration or termination of this Agreement.
4.3. Partner grants to Merchant a non-exclusive license to utilize Partner's names, titles, logos, trademarks, and service marks (collectively, “Affiliate Materials”), with prior written consent from Partner, to advertise, market, promote, and publicize in any manner under this Agreement. Merchant will not, however, be required to advertise, market, promote, or publicize Partner's site. Partner represents to Merchant that Partner is the sole and exclusive owner of the Affiliate Materials and has the right and power to grant to Merchant this license and such grant does not or will not: (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to Partner or binding upon Partner; or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. This license shall terminate upon the effective date of the expiration or termination of this Agreement.
4.4. Customers who buy products through the affiliate program are customers of Merchant. All Merchant and Site rules, policies, and operating procedures concerning customer orders, customer service, and sales apply to these customers. Merchant may change its policies and operating procedures at any time, with or without notice. For example, Merchant will determine the prices to be charged for items of products sold under the affiliate program in accordance with Merchant's own pricing policies and product prices and availability may vary from time to time. Because price changes may affect items that Partner already has listed on its site, Partner may not hard code price information in its descriptions. Partner may use Merchant’s dynamic product data feed (the Merchandiser Feed). Merchant will use commercially reasonable efforts to present accurate information, but it cannot guarantee the availability or price of any particular product.
5.1. Either party may terminate any Engagement at any time by deleting their acceptance of the Engagement through the Rakuten Affiliate Network. Termination of an Engagement shall not terminate this Agreement or any other Engagement.
5.2. Either party may terminate this Agreement at any time, for any reason. Termination of this Agreement shall also terminate any outstanding Engagements. However, all rights to payment, causes of action, and any provisions which by their terms are intended to survive termination, shall survive termination of this Agreement.
6. Representations and Warranties.
6.1. Each party represents and warrants to the other that: (a) it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby; and (b) any material which is provided to the other party and displayed on the other party's site will not (i) infringe on any third party's copyright, patent, trademark, trade secret, or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance, or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic, or obscene; (v) violate any laws regarding unfair competition, antidiscrimination, or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, Trojan horses, worms, time bombs, cancelbots, or other similar harmful or deleterious programming routines.
6.2. Partner warrants and represents that it will not violate any federal (including, but not limited to, The CAN SPAM Act of 2003), state, or foreign provision of law, rule, or regulation related to unsolicited communications, including, but not limited to, telephone, mail, electronic mail, or facsimile, to a third party.
6.3. Partner further warrants and represents that it will not utilize any promotion, promotion code, coupon, or other promotional opportunity that is not specifically authorized for Merchant's Affiliate Program and explicitly authorized for Partner's use, and Merchant reserves the right to withhold or disallow commission payments for violations of this Section.
6.4. MERCHANT MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE AFFILIATE PROGRAM OR ANY PRODUCTS OR OTHER ITEMS SOLD THROUGH THE AFFILIATE 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, MERCHANT MAKES NO REPRESENTATION THAT THE OPERATION OF MERCHANT SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
7.1. Partner hereby agrees to indemnify, defend, and hold harmless Merchant, its shareholders, officers, directors, employees, agents, affiliates, successors, and assigns, from and against any and all claims, losses, liabilities, damages, or expenses (including, without limitation, attorneys' fees and/or expert witness' fees and costs) of any nature whatsoever incurred or suffered by Merchant (collectively the “Losses”), insofar as such Losses (or actions in respect thereof) arise out of or are based on: (i) any claim or threatened claim that Merchant's use of any Affiliate Materials infringes on any rights of any third party; (ii) the breach of any representation or warranty made by Partner herein; or (iii) any claim related to Partner's site, including, but not limited to, the development, operation, maintenance, and contents of Partner's site.
8. LinkShare Required Provisions.
8.1. Merchant and Partner jointly and severally hereby agree to indemnify, defend, and hold harmless the Rakuten Affiliate Network and LinkShare Corporation and its affiliates, officers, directors, employees, and agents (collectively, 'LinkShare') from and against any and all liability, claims, losses, damages, injuries, or expenses (including reasonable attorneys' fees) directly or indirectly arising from or relating to any Offer, Engagement, any other matter related to this Agreement or the subject matter hereof or any dispute relating thereto.
8.2. The parties agree that LinkShare may rely on any data, notice, instruction, or request furnished to LinkShare by either party which is reasonably believed by LinkShare to be genuine and to have been sent or presented by a person reasonably believed by LinkShare to be authorized to act on behalf of one of the parties. In the event of any dispute between the parties, the parties agree that to the extent the parties contact and involve LinkShare, LinkShare may consult with and use counsel of its own choice in connection with such dispute and the reasonable fees and disbursements of LinkShare's counsel shall be within the costs and disbursements covered by the indemnity specified in Section 8.1 above.
8.3. Merchant and Partner acknowledge and agree that the nature of the Product is such that in its normal operation it may access and download elements of software data from resources which are external to the computer or device running the Product, such as Product-enabled servers. Merchant and Partner acknowledge that LinkShare has not undertaken to provide such external resources or servers and specifically disclaims any representation or warranty as to the availability, quality, or performance of such resources or whether they may contain any defects which may affect the performance of the Product or Merchant or Partner's computer. LinkShare shall not be responsible to provide any communications facilities or the costs associated with such communications.
9. Limitation of Liability.
9.1. Merchant 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 Affiliate Program, even if Merchant has been advised of the possibility of such damages. Further, Merchant's aggregate liability arising with respect to this Agreement and the affiliate program will not exceed the total commissions paid or payable to Partner under this Agreement.
9.2. The parties agree that the Rakuten Affiliate Network and LinkShare Corporation and its affiliates, officers, directors, employees, and agents shall not be liable to either party for any direct, indirect, special, exemplary, consequential, or incidental damages, even if informed of the possibility of such damages.
10.1. Merchant may disclose to Partner certain information as a result of Partner's participation as part of the affiliate program, which information Merchant considers to be confidential (herein referred to as “Confidential Information”) which shall include, but not be limited to, any modifications to the terms and provisions of this Agreement made specifically for Partner's site and not generally available to other members of the affiliate program; Site, business, and financial information relating to Merchant; customer and vendor lists relating to Merchant; and pricing and sales information for Merchant and any members of the affiliate program, other than Partner. Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by Partner for Partner's 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 the same is required by law or legal process.
11.1. Merchant and Partner are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Partner will: (a) have no authority to make or accept any offers or representations on Merchant's behalf; and (b) not make any statement, whether on Partner's site or otherwise, that reasonably would contradict anything in this Section.
11.2. The parties agree that the Rakuten Affiliate Network and LinkShare Corporation are intended third-party beneficiaries under this Agreement.
11.3. This Agreement will be governed by the laws of the United States and the State of Arizona, without reference to rules governing choice of laws. Any legal proceeding of any nature brought by either party against the other party to enforce any right or obligation under this Agreement, or arising out of any matter pertaining to this Agreement shall be submitted for trial, without a jury, before the federal or state courts located in Maricopa County, and Partner irrevocably consents to the jurisdiction of such courts. If Partner needs to send official correspondence, send it via registered mail to Merchant's headquarters to the attention of Merchant's Legal Department.
11.4. This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution may be achieved in any format convenient to the parties.
11.5. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part. Merchant's failure to enforce Partner's strict performance of any provision of this Agreement will not constitute a waiver of Merchant's right to subsequently enforce such provision or any other provision of this Agreement.
11.6. Partner may not assign this Agreement, by operation of law or otherwise, without Merchant's prior written consent. Subject to the following restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
11.7. Partner acknowledges that it has read this Agreement, had an opportunity to consult with legal advisors if so desired, and agrees to all its terms and conditions. Partner has independently evaluated the desirability of participating in the Merchant's affiliate program and is not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
11.8. The provisions contained in this Agreement constitute the entire agreement between the parties with respect to the subject matter of this Agreement, and no statement or inducement with respect to such subject matter by any party which is not contained in this Agreement shall be valid or binding upon the parties.
I indicate my approval of this Agreement and desire to become an Affiliate under these terms and conditions by filling out and submitting the Affiliate Application Form.