In consideration of the promises set forth below, we agree as follows:
1. Offers and Engagements
1.1. From time to time, Rakuten.com may post on Rakuten Marketing 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 Rakuten Marketing 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 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.
1.3. 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.
2. Partner's Responsibilities
2.1. 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.
2.2. 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.
2.3. 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.
2.5. Partner agrees that it shall in no way frame Rakuten.com's site.
2.6. Partner agrees that it shall not engage in search marketing or buying of Buy.com, Rakuten or Rakuten.com trademarks, brand names, or common misspellings thereof, on search engines.
2.7. Partner warrants that it is not a Reseller, and will not make purchases on Rakuten.com’s site for the purpose of commercial resale.
3.1. 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").
3.2. 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.
3.3. 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.
23.4. No commission may be earned for purchases made from other stores operated by third parties that may be accessible from Partner's site.
3.5. No commission may be earned for purchases of Gift Cards.
3.6. No commission may be earned for large quantity purchases by Resellers (defined as order quantities over 5 of the same item or sku).
3.7. 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.
3.8. 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.
3.9. 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.
4. Ownership and Licenses
4.1. All materials within Rakuten.com's site, including data, text, graphics, and other files, and their selection and arrangement thereof, are copyrighted works of Rakuten.com. Partner is granted a limited license to display, copy and download materials on the site for personal, non-commercial use only. Any commercial use of any copyrights requires the prior written consent of Rakuten.com. All trademarks, service marks, trade names and logos (collectively, "Marks") are either registered or unregistered marks of the Rakuten.com or its vendors. No Marks may be copied, imitated or used without the prior written consent of Rakuten.com or the third-party owner, and nothing in this Agreement confers any rights in the Marks to Partner. For purposes of clarification, Partner shall not use Rakuten.com’s trade names or logos in association with Partner’s Facebook, Twitter, YouTube or other social media page or in any manner which may cause confusion or brand dilution with Rakuten.com.
4.2. 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.
4.3. 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-branding 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.
5. 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 Network and/or in Rakuten.com's affiliate program, you agree as follows:
5.1. Except as expressly authorized by Rakuten.com, any and all such electronic messages initiated or sent by you or on your behalf must:
- Identify you as the sender and may not suggest or imply, or mislead or be likely to mislead a recipient into believing that Rakuten.com or Rakuten Marketing is a sender or sponsor of, or has procured you to send, such electronic messages. To be clear, you may not use a return address, subject heading, header information or message contents that misleads or confuses or is likely to mislead or confuse a recipient as to you being the sender;
- 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.
5.2. You will implement and employ in connection with each electronic message sent by you or on your behalf an effective mechanism and procedure for any recipient of such electronic message to be able to request during the following thirty (30) days at 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").
- You will insure that such opt-out procedure is fully compliant with any and all applicable laws, rules and regulations, including the requirements of the Can Spam Act.
- 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.
5.3. 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
- Contain content which has as its primary purpose the promotion of Rakuten.com, a Network Affiliate (other than you) or Rakuten Marketing, whether or not any Qualifying Link is used. All electronic messages sent by you or on your behalf must feature the service or product offering you are providing as its primary purpose; nor
- 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.
5.4. You shall provide Rakuten.com with any information requested by Rakuten.com at any time, including evidence that you have complied with all required opt-out procedures and other aspects of your compliance herewith. Further, you authorize Rakuten.com to provide any information, including confidential information, and otherwise make any disclosures that Rakuten.com determines to be necessary or appropriate about you or your participation or activities on or in relation to Rakuten.com or your use of any Rakuten.com -provided resources to any local, state, provincial, federal or foreign governmental authority or Internet Service Provider bringing or contemplating the bringing of any action or conducting any investigation in relation to the enforcement of any applicable laws, including the Can Spam Act.
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.
6.1. 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.
6.2. 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.
6.3. Neither your participation in Rakuten.com's affiliate program or on any Rakuten Marketing Network (including your use of any resource made available and earning or receiving of any commissions or other monies) shall be construed as or deemed to be an inducement for, solicitation of, or payment or provision of other consideration to, you to provide any products or services to Rakuten Marketing or, except in any written agreement with Rakuten.com expressly provides otherwise, to Rakuten.com.
7. Using plug-ins, Pop-up Engines and other download technology.
7.1. No Interference. If you make available, directly or indirectly through any of your "Affiliated Providers" (as defined in Paragraph D(iii) below) any downloadable or other technology, you agree to insure, and hereby insure, that such technology does 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.
7.2 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 bring such versions into compliance.
7.3 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 browser, plug-in, email, software, file or other platform or technology provided by any third party; or
- cause an error or unintended result to occur; or
- cause the parties involved or affected to violate any applicable laws; or
- aids, abets, contributes, facilitates or supports any third party to do any of the foregoing; in each case, including but not limited to (x) in relation to any Engagement, tracking code, cookie, file, data record, sale, click-through, commercial activity or other action or transaction facilitated or intended by the target of such interference or (y) with the result of reducing any payment owing to a third party or increasing any payment obligation by any third party.
"end user's express and informed prior consent" refers to and requires (a) a reasonable opportunity to view and expressly consent to the download and use prior to the download, including the rejection and removal, of any technology, (b) full and prominent disclosure at the time of the relevant action or transaction originally intended by the target of such Interference sufficient, in Rakuten.com's reasonable good faith determination, to insure that any choice to Interfere is fully informed as to the benefits and potential consequences, and (c) disclosure and consent that are consistent with any and all applicable laws.
Affiliates may not use any mark of Rakuten.com or its affiliates or any variation thereof, in any manner not expressly authorized by this Agreement. In particular, Affiliates may NOT use any mark of Rakuten.com or its affiliates, or any variation thereof, directly or indirectly in (a) meta-tags, (b) in hidden text, page titles or source code, (c) in Affiliate's domain or sub-domain, and/or (d) any other manner. Affiliate may NOT engineer its site in such a manner that pulls Internet traffic away from Rakuten.com's website. Affiliate agrees to not utilize, advertise or otherwise promote, any mark of Rakuten.com or its affiliates in the headline or description copy associated with pay-for-placement search engines or paid search engine advertising. Unless Affiliate has explicit, written approval from Rakuten.com, Affiliate may NOT bid on any mark of Rakuten.com or its affiliates, on any pay-for-placement search engines. Violation of the foregoing prohibitions may result in, among other things, the immediate termination of this Agreement and/or the commencement of an action by Rakuten.com against Affiliate seeking, without limitation, injunctive relief and/or recovery of actual, statutory and/or punitive damages.
9. Compliance with laws.
You shall at all times insure that you and your affiliates, officers, directors, employees, consultants, agents and representatives, the conduct of your business, your performance as an affiliate partner and under any Engagements with Rakuten.com, and your use of any Rakuten Marketing Network in any manner must at all times comply with all applicable federal, state, provincial and foreign laws, ordinances, rules, regulations, orders, judgments and decrees. Without limiting the generality of the foregoing, such laws shall include without limitation any state and federal laws dealing with the transmission and labeling of commercial and/or other electronic mail messages, laws relating to fraud or predatory or abusive business practices, and rules and regulations that are, from time to time, established by governmental agencies.
10.1. Either party may terminate any Engagement upon 7 days written notice with effect from the 8th day from such notice through Rakuten Marketing. Termination of an Engagement shall not terminate this Agreement or any other Engagement.
10.2. Either party may terminate this Agreement at any time, for any reason, upon 7 days written notice with effect from the 8th day from such notice. Termination of this Agreement shall also terminate any outstanding Engagements. However, all rights to payment, causes of action and any provisions that by their terms are intended to survive termination, shall survive termination of this Agreement.
11.1. Partner represents and warrants that is has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby. Partner further represents and warrants that Partner's site contains no material that infringes on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy or that violates any applicable law, statute, ordinance, or regulation.
11.2. Partner represents and warrants that Partner's site contains no material that is defamatory or libelous; that is lewd, pornographic or obscene; that violates any laws regarding unfair competition, anti-discrimination or false advertising; or that promotes violence or contains hate speech.
11.3. Partner represents and warrants that it is not a reseller of any products offered on Rakuten.com's web site.
11.4. Rakuten.com's site, including all products, software, functions, materials and information, and any services sold, provided made available through the site, are provided "as is" without warranties of any kind, either express or implied. Rakuten.com disclaims all warranties, either express or implied, including, but not limited to, warranties of quiet enjoyment and non-infringement and any implied warranties of Rakuten.com’s ability for a particular purpose or use, non-infringement, title, Rakuten.com’s ability of computer programs and informational content, including any warranties concerning Year 2000 compliance of products, software or services sold, third-party sites linked to, or otherwise made available on this site, or absence of viruses or other harmful programs.
Rakuten.com does not warrant or make representations regarding the operation of Rakuten.com Shopping's site, the use, validity, accuracy or reliability of, or the results of the use of the materials on Rakuten.com's site, the products or services obtained through the site or linked to the site. The materials or prices on the site may be out of date or in error, and Rakuten.com makes no commitment to update the materials at the site. No advice or information, whether oral, written or obtained by Partner from Rakuten.com or through Rakuten.com's site shall create any warranty not expressly made herein.
Rakuten.com does not and cannot guarantee or warrant that the files available for downloading from this site, if any, will be free from viruses, logic bombs, worms, Trojan horses or other code that manifests contaminating, destructive or operationally degrading properties.
Rakuten.com does not warrant that the site, product, software, materials or services will be uninterrupted or error-free or that any defects in the site, product, software, materials or services will be corrected. Some jurisdictions may not allow the exclusion or limitation on duration of implied warranties, so the above exclusion may not apply to you only with respect to implied warranties.
12.1. Partner hereby agrees to indemnify, defend and hold harmless Rakuten.com and its affiliates, directors, officers, shareholders, employees, representatives, 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.
13. Limitation of Liability.
13.1. IN NO EVENT SHALL Rakuten.com BE LIABLE TO PARTNER FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Rakuten.com'S LIABILITY ARISING OUT OF OR RELATED TO THE PERFORMANCE OF THIS AGREEMENT (OTHER THAN FOR PAYMENT COMMISSIONS) EXCEED THE AMOUNT OF COMMISSIONS PAID TO PARTNER FOR THE 2 MONTHS PRIOR TO THE CONDUCT GIVING RISE TO PARTNER'S CLAIM.
14.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
14.2. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of California. Any action to enforce this Agreement shall be brought in the federal or state courts located in San Mateo County, California. If you need to send official correspondence, send it via registered mail to Rakuten.com's headquarters to the attention of Rakuten.com's legal department.
14.3. 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.
14.4. 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.
14.5. Partner hereby agrees to indemnify, defend and hold harmless Rakuten.com and its affiliates, directors, officers, shareholders, employees, representatives, and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees), as incurred, brought by a third party, arising out of a breach or violation, or allegation which if true would constitute a breach or violation, of any of its representations or obligations in this agreement. To the extent any provision hereof is held to be invalid or unenforceable, such provision shall be enforced to the full extent permitted by law and the remaining provisions hereof shall remain in full force and effect. This letter agreement shall be construed under the laws of the State of California without regard to conflicts of law principles.