In consideration of the promises set forth below, we agree as follows:
Offers and Engagements
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- If an Offer made by one party is accepted by the other party in accordance with the Offer's terms via Rakuten Marketing LLC, 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.
- At any time, Rakuten.com 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 Rakuten.com for an Offer or an Engagement. Partner agrees to promptly implement any request from Rakuten.com to remove, alter or modify any graphic or banner ad submitted by Rakuten.com that is being used by Partner as part of an Engagement.
- Partner will link its site to areas within Rakuten.com'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 Rakuten.com'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 agrees not to alter or modify any graphic, banner, or link submitted by Rakuten.com.
- Partner agrees not to make any representations, warranties or other statements concerning Rakuten.com, Rakuten.com's site, any of Rakuten.com's products or services, or Rakuten.com's site policies, except as expressly authorized by the Engagement. Partner agrees not to use or post any graphic, banner, or link relating to Rakuten.com not provided by Rakuten.com through the Rakuten Marketing Network.
- Partner is responsible for notifying Rakuten.com and Rakuten Marketing of any malfunctioning of the Required URLs or other problems with Partner's participation in the Engagement. Rakuten.com will use reasonable efforts to respond to concerns upon notification by Partner.
- Partner agrees that it shall in no way frame Rakuten.com's site.
- Partner agrees that it shall not engage in search marketing or buying of Buy.com, Rakuten or Rakuten.com trademarks, liand names, or common misspellings thereof, on search engines.
- Partner warrants that it is not a Reseller, and will not make purchases on Rakuten.com’s site for the purpose of commercial resale.
- Rakuten.com agrees to pay Partner the commission specified in the Engagement if a merchant on Rakuten.com (a ”Merchant”) sells to a visitor to Rakuten.com's site (a "Customer") a product or service that is the subject of the Engagement and if that Customer has accessed Rakuten.com's site and purchased the product or service via a Qualifying Link. Commissions shall be paid according to Rakuten Marketing 's Publisher Service Agreement ("PSA").
- A "Qualifying Link" is a link from Partner's site to Rakuten.com's using one of the Required URLs or any other URL provided by Rakuten.com for use in the Rakuten Marketing network if it is the last link to the Rakuten.com'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 Rakuten.com's site via a link from the Partner's site and terminating when the Customer either returns to Rakuten.com's site via a link from a site other than Partner's site or the Engagement expires or is terminated.
- Rakuten.com and Merchants 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 Rakuten.com and/or Merchants and the Customer.
- No commission may be earned for purchases made from other stores operated by third parties that may be accessible from Partner's site.
- No commission may be earned for purchases of Gift Cards.
- No commission may be earned for large quantity purchases by Resellers (defined as order quantities over 5 of the same item or sku).
- Commission may be earned only on credit card transactions. Purchases paid by gift certificate, check, or method other than credit card are not eligible for commissions.
- All determinations of Qualifying Links and whether a commission is payable will be made by Rakuten.com and will be final and binding on both Rakuten.com and Partner. Prices for the products will be set solely by Merchants in its discretion.
- In the event Rakuten.com, in its sole discretion, suspects fraud or other unlawful conduct by partner or by any third party accessing Rakuten.com's site through links on Partner's site, Rakuten.com shall confer with Rakuten Marketing to suspend or deny payments in whole or in part to Partner.
Ownership and Licenses
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- Rakuten.com 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 Rakuten Marketing, on Partner's site solely for the purpose of creating links from Partner's site to Rakuten.com'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.
- Partner grants Rakuten.com a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Partner solely for co-lianding purposes or as a return link from Rakuten.com's site to Partner's site if Rakuten.com so desires. Rakuten.com will remove such graphic or banner ad upon Partner's request.
Using electronic or other types of messages
Without limiting the generality of the foregoing or any other obligations you have under Rakuten.com's Master Agreement, the PSA and Network Operating Policies and Procedures and any obligations you may have under your Engagements with Rakuten.com, if
you use email and/or, as applicable, mobile service messages (SMS), instant messaging (IM) or other types of electronic messages (individually and collectively, "electronic messages") in connection with your participation on the Rakuten Marketing
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- Feature the service or product offering(s) that you are offering the recipient (and not those of Rakuten.com) as its primary contents and purpose;
- Contain a valid physical postal address for you (and not any other person or entity including Rakuten.com or Rakuten Marketing);
- Be clearly and conspicuously identified as an advertisement or solicitation.
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a minimum not to receive further electronic messages from you or those sending electronic messages on your behalf and except as otherwise expressly permitted by applicable law, such request shall be heeded within ten (10) business days of receipt
of such request (collectively, an "opt-out procedure").
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- Pursuant to or in addition to the requirements of the Can Spam Act, such opt-out procedure, you must also provide a means to share, and will promptly share upon Rakuten Marketing 's or Rakuten.com's request, the email, SMS, IM or other address of any recipients that exercised such opt-out procedure with Rakuten.com that are promoted in any electronic message giving rise to such opt-out request. You may not sell, rent or disclose for any consideration any lists of recipients that have exercised such opt-out procedure.
- You may not use any Qualifying Links (or any equivalent link or mechanism that, upon being activated, causes the same result as clicking on a Qualifying Link) in any electronic message unless:
- You have received the express authorization of Rakuten.com to use email or other electronic messages, as applicable, to promote its Qualifying Link; and
- Any and all such electronic messages comply in all respects with this agreement, the PSA, including the Network Operating Policies and Procedures, Rakuten.com's Master Agreement and any and all applicable laws.
- Further, except as expressly authorized by Rakuten.com, any and all electronic messages initiated or sent by you or on your behalf may not:
- Identify any other person or entity, including Rakuten Marketing or Rakuten.com, as a sender or sponsor of any electronic message sent by you or on your behalf; nor
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- Contain sexually-oriented material without placing warning labels and otherwise complying with applicable laws including the Can Spam Act in all respects; nor
- Be sent by or through any computer without authorization, including by relay or retransmission, or contain false header information regarding the transmitting computers and transmission path including the originating electronic mail address, domain name or Internet Protocol address.
- Should you be expressly authorized to promote Rakuten.com or Qualifying Link using an electronic message, in addition to any other applicable terms of the relevant Engagement, you agree to comply with the Can Spam Act and any rules and regulations that are promulgated by any governmental authority in respect thereof and any and all orders, judgments and decrees of any court, agency or other authority relating thereto and any other applicable foreign, federal, provincial, state, or local law applicable to the use or transmission of electronic message. While some of the requirements of the Can Spam Act are set forth as contractual obligations hereunder, compliance with the above provisions shall not be construed as or deemed to be sufficient to comply with any such or other applicable law.
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6. Not an email or other service provider
- Rakuten.com's affiliate program or Rakuten Marketing Networks is as an affiliate partner and an Online Affiliate. Your participation is purely voluntarily and you may terminate your participation at any time.
- Neither Rakuten Marketing nor Rakuten.com shall be construed or deemed as having "procured" you or your services to send or initiate any email or other types of electronic messages to any computer, including for the purposes of promoting Rakuten Marketing or Rakuten.com or its respective trade or business, or goods, products, property, or services.
- You are not and shall not, at any time, be deemed to be a vendor, supplier or provider of goods or services to Rakuten.com. You are not and shall not at any time be deemed, based on your participation in any Rakuten Marketing Network or entering into an Engagement with Rakuten.com or otherwise being an affiliate partner, to be a vendor, supplier or provider of goods or services to Rakuten.com, unless Rakuten.com has expressly agreed in writing to engage you as a vendor, supplier or provider of goods or services.
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Using plug-ins, Pop-up Engines and other download technology
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not and will not "Interfere" (as defined in Paragraph D(iii)below) during your participation in Rakuten.com's affiliate program and afterwards, except with "an end user's express and informed prior consent" (as defined in Paragraph D(iii)below),
with any of the following:
- Any Rakuten.com Web-based links, advertisements, sites or other commercial offerings in any manner that is contrary to Rakuten.com's intentions; or
- Any Engagement (including the click-through and any subsequent activity) tracked by Rakuten Marketing between Rakuten.com and any Network Affiliates with which Rakuten.com has entered into such Engagement; or
- The tracking technology or network resources offered by Rakuten Marketing to its Rakuten.com Network Affiliates and other participants or users.
- Testing and Compliance. Prior to any commercial release of any downloadable or other technology that is used in relation to or might affect in any manner the Rakuten Marketing Network and/or any of its participants, including any Network Affiliates and/or Rakuten.com, or any revisions to any such technology previously commercially released, you will notify Rakuten.com that such technology may be made available and provide Rakuten.com with a reasonable opportunity to test a representative copy thereof. Upon completing its testing of such technology, Rakuten.com shall provide you with a verbal report of any violations, if any, of the above "No Interference" provisions or any other errors or adverse problems caused by the technology in respect of the Rakuten Marketing Network or to Rakuten.com. If, for whatever reason, the technology has already been commercially released by the time any testing is conducted or completed, you will use reasonable best efforts to make any modifications, upon a mutually agreed timetable, but in any case such modifications shall be made within thirty (30) days (unless the parties have agreed based on good faith mutual discussion and consultation that a longer period is necessary). Once any version of any technology is approved by Rakuten.com, you will make available only such Rakuten.com-approved version of the technology and will use reasonable best efforts to cause any prior versions to be replaced or modified to liing such versions into compliance.
- Defined Terms. "Affiliated Provider" may mean, variously, a corporate affiliate, developer, distributor, enterprise user, retailer, reseller or other provider or agent, together with any of their respective corporate affiliates. "Interfere" (and its
other grammatical variations) means, variously, to, whether intentionally or unintentionally:
- replace, intercept, redirect, disrupt, block, alter or otherwise adversely affect (including by opening a pop-up or new window or using other types of diverting or disruptive mechanism); or
- substitute, insert or append; or
- modify the behavior or functionality, or simulate, copy or assume control of, or create a substitute or derivative version of, any liowser, plug-in, email, software, file or other platform or technology provided by any third party; or
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Compliance with laws
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