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This contains the complete terms and conditions that apply to Partner’s (also known as Affiliate”) participation in the SCUBALIFE Affiliate Program and the establishment of links from Partner’s website to the SCUBALIFE website located at "www.scubalife.com"(the "Web Site").
1.The Affiliate Program:
1,1 As a Partner, SCUBALIFE will make available to Partner via the Web Site a variety of graphic, product, textual and other links as determined by SCUBALIFE (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link") subject to the terms and conditions of this Agreement. The Links will serve to identify the Partner site as a part of SCUBALIFE’s Affiliate Program and will establish a link from Partner site to the SCUBALIFE Web Site. Partner agrees to display on its Web Site only those Links that are provided by SCUBALIFE through the network of all other Partners and their websites (the “Affiliate Network”).
1.2 To commence the process of enrolling as a Partner in the Affiliate Program, Partner will submit an Enrollment Application via SCUBALIFE’s Web Site or as otherwise authorized by SCUBALIFE. SCUBALIFE will evaluate Partner’s application and notify Partner of acceptance or rejection; which determination shall be in SCUBALIFE’s sole discretion.
1.3 Once enrolled as a Partner, the Affiliate shall follow all of SCUBALIFE’s rules and directions of SCUBALIFE with respect to products and/or services offered or sold through use of the Web Site. In particular, the Affiliate agrees to provide a ten percent (10%) discount on its normal retail pricing for such products or services.
1.4 The Affiliate shall be responsible for all taxes of any kind resulting from the offering or sale of products and/or services offered or sold through use of the Web Site.
1.5 Upon no more than five (5) business days notice, SCUBALIFE, reserves the right to terminate the membership of the Partner in the Affiliate Program, which determination shall be in SCUBALIFE’s sole discretion.
1.6 Partner agrees to promptly implement any request from SCUBALIFE to remove, alter or modify any graphic or banner ad submitted by SCUBALIFE that is being used by Partner.
2.1 By joining or participating in the SCUBALIFE Affiliate Program, Partner acknowledges to having read these terms and agrees to abide by them, which may be amended from time to time in SCUBALIFE’s sole discretion. SCUBALIFE will notify Partner of any amendment by posting a notice on the Web Site or, in SCUBALIFE’s sole discretion, by E-mail and Partner continued participation in the Affiliate Program after such notice shall constitute Partner binding and legally enforceable agreement to such amendment.
3. Partner's Responsibilities.
3.1. Tracking URLs placement: Partner will link its site to areas within SCUBALIFE 's site using special URLs to track referrals (the "Required URLs"). Partner may post as many links to the Required URLs and the rest of SCUBALIFE '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 SCUBALIFE’S rules and regulations, but otherwise will be in the discretion of Partner.
3.2. Representation: Partner agrees not to make any representations, warranties or other statements concerning SCUBALIFE, SCUBALIFE 's site, any of SCUBALIFE's products or services, or SCUBALIFE's site policies, except as expressly authorized in the SCUBALIFE’S rules and regulations, as determined in SCUBALIFE’s sole discretion.
3.3. Tracking functionality notification: Partner is responsible for notifying SCUBALIFE and the Affiliate Network of any malfunctioning of the Required URLs or other problems with Partner's participation in the Engagement. SCUBALIFE will respond promptly to all concerns upon notification by Partner.
3.4. CAN-SPAM compliance: SCUBALIFE is committed to the mission of eliminating spam email on the Internet. To that end, SCUBALIFE rigorously maintains only opt-in email addresses and always permits any email recipient to conveniently opt-out of emails. SCUBALIFE is adamant that its partners and affiliates should be similarly diligent. To that end, Partner agrees not to send any email or other form of electronic message or advertisement containing SCUBALIFE's name, product, website 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 and assure all its communications are CAN-SPAM compliant.
3.5. Technology: 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. Affiliates caught using outside technologies to compromise SCUBALIFE.com infrastructure and resources will be terminated from the program.
3.6. SEM & SEO Policies: Affiliates engaging in Search Engine Marketing or Search Engine Optimization (SEO), including their Web Site page titles or meta-tags and/or pay per click advertising (PPC) to promote SCUBALIFE are not authorized to utilize or bid on keywords incorporating the “SCUBALIFE” trade name (A.K.A. branded Terms) or any variation thereof. This includes possible misspellings, abbreviations, Terms identical to restricted trade name but use the wrong case, and the merging of the restricted trade name with other terms, words or phrases.
Some examples of branded terms that are off limits to affiliates include but are not limited to: “SCUBALIFE”, ““www.SCUBALIFE.com”, “SCUBALIFE.com”, “SCUBALIFE site”, “SCUBALIFE website”, “SCUBALIFE website”. SCUBALIFE may, at its sole discretion, modify this list from time to time to include any other word or phrase.
3.7. Affiliates domain names cannot contain any variation of the words SCUBALIFE at any time, nor can the site resemble SCUBALIFE.com. Partner will not frame its site so that it is confusingly similar to SCUBALIFE’s site. Partner will not redirect traffic to SCUBALIFE’s site where its URL remains in the address when a customer attempts to bookmark, what appears to be, SCUBALIFE’s site, as determined by SCUBALIFE in its sole discretion. For SCUBALIFE’s products listed for sale on Partner’s site, Partner will direct customers only to SCUBALIFE’s site for the purchase or will purchase the products only from SCUBALIFE’s site. Partner will use the product images and descriptions only as provided by SCUBALIFE and only in the manner consistent with these terms for the promotion and sale of SCUBALIFE products.
2.8 Promotion Codes – Affiliates are only authorized to advertise promotion codes that are posted on the SCUBALIFE Web Site SCUBALIFE.com or within the SCUBALIFE advertiser area of the Affiliate Network in compliance with their effective date, unless otherwise pre-approved in writing by the SCUBALIFE.
Failure to comply with this section may result immediately in permanent termination from the Merchant's affiliate program.
In accordance with section 4.2, Partner agrees to not use SCUBALIFE’s content on any web site other than its registered Affiliate Network web site without the express written permission of SCUBALIFE.
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. Subject to Partner abiding by the provisions of these terms, SCUBALIFE grants Partner a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology, and other content (collectively, “IP”) as designated in SCUBALIFE’s rules and regulations or during the registration process in the Affiliate Network, on Partner's site solely for the purpose of creating links from Partner's site to SCUBALIFE's site as contemplated by these terms. 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 IP. Partner may not sublicense, assign or transfer any such licenses for the use of rights in and to the same IP, and any attempt at such sublicense, assignment or transfer is void. Partner will not use nor negligently nor intentionally allow any third party to use the Content for any purpose other than to drive sales to the SCUBALIFE’s Web Site.
4.3. Partner grants SCUBALIFE 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 SCUBALIFE's site to Partner's site. SCUBALIFE will remove such graphic or banner ad upon Partner's request.
5.1 Either party may terminate this Agreement at any time, for any reason, provided that they provide at least five business day's prior written notice of such termination to the other party and Affiliate Network. 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 until its fulfillment.
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, including, without limitation, any anti-spam or other email or electronic commerce related law; (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 (c) it shall not send any email or other form of electronic message or advertisement containing the other'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 the sender or sender has a pre-existing business relationship with the recipient; and (d) it shall provide any recipient of such communication with the ability to “opt out” of further communications from the sender either by calling a toll free number or by sending an “unsubscribe” email to the sender.
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 SCUBALIFE ABILITY 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. Limitation of Liability.
8.1. 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. Notwithstanding the foregoing, Partner 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 Partner of this Agreement.
8.2. The parties agree that the Affiliate Network 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.
9.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
9.2. The parties agree that the Affiliate Networks are intended third party beneficiaries under this Agreement.
9.3. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of Florida. Any action to enforce this Agreement if not brought in arbitration under section 9.5 shall be exclusively brought in the federal or state courts located in Jacksonville, Florida.
9.4 If any provisions of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
9.5 The parties agree that they with respect to any dispute arising from or relating to this Agreement shall be decided through arbitration under the Rules of the American Arbitration Association, which shall be held in Jacksonville, Florida.
10. Waiver of Jury Trial Right
10.1. THE PARTIES AGREE THAT THEY BOTH WAIVE ANY RIGHT TO A JURY TRIAL WITH RESPECT TO ANY DISPUTE ARISING FROM OR RELATING TO THIS AGREEMENT.