This Master Agreement ("Agreement") is made between Peruvian Connection Ltd. ("Merchant") and the undersigned entity ("Partner").
Partner and Merchant are each enrolled in The Google Affiliate Network™.
Partner and Merchant each desire to establish the general terms and conditions which shall govern advertising and commission arrangements between Partner and Merchant which result from their participation in The Google Affiliate Network™.
In consideration of the promises set forth below, we agree as follows:
1.1. From time to time, Merchant may post on The Google 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 Google 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 Google 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.
2.1. 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.
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 Google Affiliate Network™ of any malfunctioning of the Required URLs or other problems with Partner's participation in the Engagement. Merchant will respond promptly to all concerns upon notification by Partner.
2.4. Merchant is committed to the mission of eliminating spam email on the Internet. To that end, Merchant rigorously maintains only opt-in email addresses and always permits any email recipient to conveniently opt-out of emails. Merchant is adamant that its Partners should be similarly diligent. To that end, Partner agrees not to send any email or other form of electronic message or advertisement containing Merchant's name, product, web site address, metatag or any other type of identifier to any recipient unless the recipient has directly consented to receive such communication from Partner or Partner has a pre-existing business relationship with the recipient. In addition, Partner agrees to provide a recipient of such communication with the ability to "opt out" of further communications from Partner either by calling a toll free number or by sending an "unsubscribe" email to Partner. Partner agrees that Merchant may, upon reasonable written notice, audit (a) the lists and source(s) of the lists to which Partner sends any email or other form of electronic message or advertisement containing Merchant's name, product, web site address, metatag or any other type of identifier, and (b) any email or other form of electronic message or advertisement containing Merchant's name, product, web site address, metatag or any other type of identifier.
2.5. Partner agrees to abide by all applicable federal, state and local laws, including, without limitation, laws which prohibit a person or company from (a) installing spyware on another person's computer, (b) causing spyware to be installed on another person's computer, or (c) using a context based triggering mechanism to display an advertisement that partially or wholly covers or obscures paid advertising or other content on an Internet website in a way that interferes with a user's ability to view the Internet website.
2.6. Partner may not use "www.PeruvianConnection.com" or any variation thereof as the display URL in any Search Engine or like marketing campaign without the prior written consent of Peruvian Connection Ltd.
Partner also agrees not to bid on any keyword in Pay per Click Search Engines (PPCSEs) that is a Merchant Brand Term, (or a derivation of a trademark, misspellings or any other word or term that is likely to cause confusion regarding its affiliation with Merchant). Some examples of these keywords include, but are not limited to:
The foregoing list is for guideline purposes only; in other words, it is not a complete list of prohibited keywords which infringe or may infringe Peruvian Connection's trademark.
Partner agrees to negative match all keywords listed above for bids on terms such as:
Merchant may, at its sole discretion, modify this list from time to time to include any other word or phrase
2.7. Partner agrees not to place the word "Peruvian" or "Connection" or any variation of it or close spelling of it, in the Affiliate's site URL to the left of Affiliate's top-level domain name or sub-domain. An example of this prohibition is as follows: "PeruvianConnection.mydomain.com." However, the following example does not violate this prohibition: "mydomain.com/peruvianconnection."
2.8. Affiliate agrees not to employ the use of any type of software download or technology ("Prohibited Software") which attempts to intercept or re-direct traffic or referral fees to or from, any other website without the written consent of Merchant.
2.9. Affiliate will not frame its site so that it is as if your customers are on both your Affiliate site and PeruvianConnection.com, or in any way that is confusingly similar to Merchant's site, as determined by Merchant in its sole discretion.
2.10. Affiliate will not redirect traffic to Merchant's site where its URL remains in the address when a customer attempts to bookmark, what appears to be, Merchant's site, as determined by Merchant in its sole discretion.
2.11. For Merchant's products listed for sale on Affiliate's site, Affiliate will direct customers only to Merchant's site for the purchase or will purchase the products only from Merchant's site.
2.12. Affiliate will use the product images and descriptions only as provided by Merchant and only in the manner consistent with this agreement for the promotion and sale of Merchant's products
2.13. Finally, Failure to comply with any provision of this Section 2 may result in suspension or termination from Merchant's affiliate program. If placed on suspension, Affiliate will be prohibited from participating in the Merchant's Affiliate Program for a minimum of 14 days and will be ineligible to receive any commissions on the Merchant sales generated during the suspension period. After the initial suspension period, and if in complete compliance with this Agreement and Engagement, Affiliate will have the opportunity to opt back in to the Merchant's Affiliate Program once in complete compliance with this section. A second violation of this Section may result in permanent termination from the Merchant's affiliate program. Merchant's failure to terminate or otherwise discipline an Affiliate for violations shall not operate as an implicit acceptance of the Affiliate's action or as a waiver of Merchant's right to thereafter seek recourse for past or future violations.
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 using one of the Required URLs or any other URL provided by Merchant for use in The Google 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 or the Engagement expires or 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.
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 revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology, as designated in the Engagement or during the registration process in The Google Affiliate Network™, on Partner's site solely for the purpose of creating links from Partner's site to Merchant's site during Engagements. Except as expressly set forth in this Agreement or permitted by applicable law, Partner may not copy, distribute, modify, reverse engineer, or create derivative works from the same. Partner may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void.
4.3. Partner grants Merchant a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Partner solely for co-branding purposes or as a return link from Merchant's site to Partner's site. Merchant will remove such graphic or banner ad upon Partner's request.
4.4. In accordance with section 4.2, Affiliate agrees to not use Merchant's content on any web site other than its registered Google Affiliate web site without the express written permission of Merchant.
5.1. Either party may terminate any Engagement at any time by deleting their acceptance of the Engagement through The Google 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, provided that they provide at least five day's prior written notice of such termination to the other party and The Google Affiliate Network™. 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.
6.1. Each party represents 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, anti-discrimination 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. EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.1. Each party hereby agrees to indemnify, defend and hold harmless the other party and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.
8.1. Merchant and Partner jointly and severally hereby agree to indemnify, defend, and hold harmless The Google Affiliate Network™ and Google Affiliate Corporation and its affiliates, officers, directors, employees and agents (collectively, "Google Affiliate") 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 any dispute relating thereto.
8.2. The parties agree that Google Affiliate may rely on any data, notice, instruction or request furnished to Google Affiliate by either party which is reasonably believed by Google Affiliate to be genuine and to have been sent or presented by a person reasonably believed by Google Affiliate 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 Google Affiliate, Google Affiliate may consult with and use counsel of its own choice in connection with such dispute and the reasonable fees and disbursements of Google Affiliate's counsel shall be within the costs and disbursements covered by the indemnity specified in Section 8.1 above.
8.3. The parties acknowledge and agree that this Agreement and the Engagements are only made possible due to Google Affiliate and that the parties shall not, for the duration of this Agreement and for twelve (12) months thereafter, enter into any advertising, collaborations or other commercial arrangements with each other in connection with their sites on the World Wide Web except via The Google Affiliate Network™.
8.4. Merchant and Affiliate 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 that are external to the computer or device running the Product, such as Product enabled servers. Merchant and Affiliate acknowledge that Google Affiliate 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 Affiliate's computer. Google Affiliate shall not be responsible for provision of any communications facilities or the costs associated with such communications.
9.1. In no event shall either party be liable to the other party for any indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages. Notwithstanding the foregoing, Affiliate shall be liable to Merchant for any and all damages, losses or expenses (including attorneys' fees and other costs of defense) incurred in connection with all suits, claims, demands, or liabilities whatsoever, in law and equity, arising out of or resulting in any way from any actual or alleged violation by Affiliate of Sections 2.2, 2.3, 4.2, and 6.1, or pursuant to 7.1 of this Agreement.
9.2. The parties agree that The Google Affiliate Network(tm) and Google Affiliate 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, other than as provided for in another written agreement with Google Affiliate wherein it agrees to indemnify one or both of the Parties.
10.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
10.2. The parties agree that The Google Affiliate Network™ and Google Affiliate Corporation are intended third party beneficiaries under this Agreement.
10.3. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of Merchant's headquarters. Any action to enforce this Agreement shall be brought in the federal or state courts located in that state. If you need to send official correspondence, send it via registered mail to Merchant's headquarters to the attention of Merchant's legal department.
10.4. 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.
10.5. 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.