Affiliate Program- Frequently Asked Questions
TERMS AND CONDITIONS
In consideration of the promises set forth below, we agree as follows:
1. Enrollment in the Program
You may submit a completed Program application through The CJ Network to begin the enrollment process. We will evaluate your application and promptly 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, this includes but is not limited to, the inability to direct a reasonable amount of traffic by way of sales volume, clicks, and page views to our Site. Unsuitable Sites include, without limitation, those that contain illegal, offensive, infringing or objectionable content. If we reject your application, you may reapply to the Program at any time. However, we may, at our discretion, permanently bar you from participation in the Program if your Site or business is inconsistent with our objectives or the operation of our Program. If we do, we will inform you of our decision.
2. Offers and Engagements
2.1. From time to time, we may post on The CJ Network offers to pay to 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 CJ 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.
2.2. If an Offer made by one party is accepted by the other party in accordance with the Offer's terms via The CJ 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.
2.3. At any time prior to Partner providing a Qualifying Link, we 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 provided for an Offer or an Engagement. You agree to promptly implement any request from us to remove, alter or modify any graphic or banner ad that you are using as part of an Engagement.
3. Links on Affiliate Site
All links that you will use in the Program will be provided to you in The CJ Network or by other means selected by us. Merchant may consider requests to use other serving mechanisms, third party or otherwise, on a case by case basis, and may determine, in its sole discretion, to deny or discontinue affiliations based on non-compliance to this request.
At no time are you allowed to use on your Site any coupon offer, source code offer, or code offer of any kind which utilizes special offers and codes created by Super Warehouse if not made available to Partner within a Qualifying Link., and all such uses are prohibited.
4. Partner's Responsibilities
4.1. Partner will link its site to areas within Merchant's Site using special URLs specified in the Engagement (the "Required URLs"). You may post as many links to the Required URLs and the rest of Merchant's Site as you like on your Site. The position, prominence and nature of links on your Site shall comply with any requirements specified in the Engagement, but otherwise will be at your discretion.
4.2. 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.
4.3. Partner is responsible for notifying Merchant and The CJ Network of any malfunctioning of the Required URLs or other problems with Partner's participation in the Engagement. We will respond promptly to all concerns upon your notification.
4.4 Covenant Not To Compete:
Partner is hereby prohibited and agrees to refrain from the following activities:
(A) purchasing or bidding on any word, phrase, URL, trademark, or variation thereof which is derived from Merchant's trademarks and service marks, including but not limited to those listed in the list of excluded terms below (the "Prohibit List");
(B) bidding or, in any manner, appearing higher than Merchant for any search term in, Google AdWrods, Overture Premium ListingsSM (position 1-5) or in any other auction style pay-per-click advertising program;
(C) incorporating, in any manner, on Partner's Site(s) within the Title, Description or Keyword meta tags, any word, phrase, URL, trademark, or variation thereof which is derived from Merchant's trademarks and service marks, including but not limited to those listed in the Prohibit List below; and
(D) incorporating, in any manner, on Partner's Site(s) any coupon offer, source code offer, or code offer of any kind which utilizes special offers and codes created by Super Warehouse if not made available to Partner within a Qualifying Link.
Including, but not limited to:
5.1. 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; provided, however, that no Commissions may be paid for amounts due to Partner in the event that Partner is found by Merchant to have violated the Partner's covenant not to compete contained in Section 4.4 herein..
5.2. 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 CJ 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 our Site via a link from your site and terminating when the Customer either returns to the www.SuperWarehouse.com Site via a link from a Site other than your Site or the Engagement expires or is terminated.
5.3. 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.
5.4. All determinations of Qualifying Links and whether a commission is payable will be made by The CJ Network and will be final and binding on both Merchant and Partner. Prices for the products will be set solely at our discretion.
6. Ownership and Licenses.
6.1. 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.
6.2. Except as set forth in Section 6.3 below, Merchant grants Partner a revocable, non-exclusive, worldwide license to use the links, images and messages described in Sections 3 and 7, 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. You may not modify any of the links, images, or messages 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 may not copy, distribute, reverse engineer, or create derivative works from any of the links, images, or messages in any way. You 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.
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 prior written notice.
6.3 The license granted herein does not include and the following uses are expressly prohibited: uses of the Merchant's name, logo, trademark, or service mark which represent the "brand" name of the catalog company ("Brand") in any manner whatsoever in connection with an agreement with a third party -- whether written or oral, whether free or paid -- to advertise, market, or promote the Brand or Partner. Violation of the terms of this license shall be cause for immediate termination as an Affiliate.
6.4. 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. We will remove such graphic or banner ad upon your request.
7. Identifying Yourself as an Affiliate
We request that you identify yourself as an Affiliate of Merchant. However, this affiliation may not be promoted by you, the Partner, in any way whatsoever that falls outside the scope of links described above, without prior approval by Merchant. Such promotions requiring prior approval may include, but are not limited to, press releases, marketing materials, media kits, screen shots, graphics altered for co-branding or any other such format.
8.1. Either party may terminate any Engagement at any time by deleting their acceptance of the Engagement through The CJ Network. Termination of an Engagement shall not terminate this Agreement or any other Engagement.
8.2. The terms 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 at least 5 day's prior written notice of such termination. Termination of this Agreement shall also terminate any outstanding Engagements. Upon termination, all Merchant-related content and links shall be promptly removed from your Site. You are only eligible to earn commissions on sales occurring during the term of this Agreement, 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. 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.
9.1. 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; including but not limited to laws and regulations under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the CAN-SPAM Act of 2003); (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.
9.2. 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.
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, warranties, or obligations herein.
11. CJ Required Provisions
11.1. Merchant and Partner jointly and severally hereby agree to indemnify, defend, and hold harmless The CJ Network and CJ Corporation and its affiliates, officers, directors, employees and agents (collectively, "CJ") 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.
11.2. The parties agree that CJ may rely on any data, notice, instruction or request furnished to CJ by either party which is reasonably believed by CJ to be genuine and to have been sent or presented by a person reasonably believed by CJ 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 CJ, CJ may consult with and use counsel of its own choice in connection with such dispute and the reasonable fees and disbursements of CJ's counsel shall be within the costs and disbursements covered by the indemnity specified in Section 11.1 above.
11.3. The parties acknowledge and agree that this Agreement and the Engagements are only made possible due to CJ and that the parties shall not, for the duration of this Agreement and for twenty-four (24) 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 CJ Network.
11.4. 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 CJ has not undertaken to provide such external resources or servers and specifically disclaims any representation or warranty as 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. CJ shall not be responsible for provision of any communications facilities or the costs associated with such communications.
11.5. Merchant and Partner agree that CJ is an intended third party beneficiary.
12. Limitation of Liability
12.1. In no event shall either party be liable to the other party for any direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.
12.2. The parties agree that The CJ Network and CJ 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.
13.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
13.2. The parties agree that The CJ Network and CJ Corporation are intended third party beneficiaries under this Agreement.
13.3. This Agreement will be governed by the laws of the United States and the State of California, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in California and you irrevocably consent to the jurisdiction of such courts. If you need to send official correspondence, send it via registered mail to Merchant's headquarters to the attention of Merchant's Affiliate Program department. 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.
13.4. 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.
13.5. 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.
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 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.
15. 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, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
16. Guidelines for Using the Super Warehouse Trademark
These guidelines apply to your use of the Super Warehouse™ (the "Trademark") in content and context that have been approved by us.
17. Guidelines for using Merchant's Product Database from The CJ Product Feed service Super Warehouse to provide Affiliates with a data feed of specific product information from a central product catalogue or database and enables Affiliates to use said data feed to drive web traffic to Super Warehouse site.
Using the data feed is an option to Affiliates. The following guidelines apply to your use of Super Warehouse Product Database from the CJ Product Feed service: The data included in the data feed may not be altered in any fashion. Additionally, you may not augment the data in any fashion. This would include, but not be limited to, adding trademark terms (section 1.6 above) to the feed for use with third parties such as search engines, comparison shopping engines, portals and online shopping malls - among other similar entities.
If you are interested in augmenting or modifying the form of product catalogue information made available to you for the purpose of driving traffic to Super Warehouse site, through an agreement with a third party (whether written or oral, free or paid) such as with a search engine, comparison shopping engine, portal or online shopping malls, among other similar entities, to advertise, market, or promote the product, Merchant or Brand, then this can be discussed on a case-by-case basis by contacting your Super Warehouse Affiliate Manager by telephone.
Violation of the terms of these guidelines for using Merchant's Product Database from The CJ Product Feed service shall be cause for immediate termination as an Affiliate.
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