Please note that the following copy of the mandatory program agreement is provided as a courtesy, but the legally binding copy is located in ShareASale. The agreement is binding on all members of the affiliate program.
THE FOLLOWING DESCRIBES THE TERMS AND CONDITIONS UPON WHICH POOLCENTER.com OFFERS YOU PARTICIPATION WITHIN THE POOLCENTER.com AFFILIATE PROGRAM. BY APPLYING AND PARTICIPATING IN THE AFFILIATE PROGRAM, YOU AGREE TO BE BOUND BY THE TERMS HEREIN. ACCEPTANCE OF THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND poolcenter.com THAT YOU WILL USE THE WEBSITE, LINKS AND ALL OTHR PROPERTY OF poolcenter.com ONLY IN A MANNER THAT IS CONSISTENT WITH THIS AGREEMENT.
This agreement (“Agreement”) is by and between Bluethumb, llc, a Virginia company, dba poolcenter.com (“poolcenter.com”, “we” or “us” and “our” shall be construed accordingly) and you (“Affiliate” or “you” and “your” shall be construed accordingly) (each individually a “Party” and collectively the “Parties”) as an online Affiliate in poolcenter.com’s Affiliate Program (the “Program”) regarding the establishment of links from your affiliate web site (“your site” or “Affiliate site”) to our web site, www.poolcenter.com (“our site” or “poolcenter.com”). For purposes of this Agreement, “our Website” also includes any Website operated by us other than www.poolcenter.com.
1. Enrollment in the Poolcenter Pool Supply Affiliate Program
To begin the enrollment process, you shall submit a complete Affiliate Program application within the ShareASale network. The Program is designed for participants aged 18 and above who can form legally binding contracts under applicable law. By accepting this Agreement and participating in the Program, you acknowledge that you are age 18 or above. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Affiliate Program for any reason, including, but not limited to, inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, racially or ethnically harassing, , or otherwise objectionable. If we reject your application, you are welcome to reapply to the Affiliate Program at any time subject to the removal of any content that may have been found objectionable to poolcenter.com. If we accept your application and your Website is thereafter determined (at our sole discretion) to be unsuitable for the Program, we may terminate this Agreement immediately without prior notice.
2. Promotion of Our Affiliate Relationship
We shall make available to you a variety of graphics and textual links (each of these links sometimes being referred to herein as “Links” or, individually, as a “Link”), which, subject to the terms and conditions hereof, you may display as often and in as many areas on your site as you desire. The Links shall serve to identify your site as a member of our Affiliate Program and shall establish a link from your site to ours. As an Affiliate, you are allowed to have one or more of the following types of Links to our site: product links, category links, search box links and a general link to the poolcenter.com home page or to any other pages on poolcenter.com. In utilizing the Links, you agree that you shall abide by all poolcenter.com guidelines and policies specified in this agreement and cooperate fully with us in order to establish and maintain such Links.
a. No brand bidding, please. We do not allow the use of keywords including, but not limited to:
b. No "All Caps" - POOLCENTER.com. You may use the domain Poolcenter.com in the ad copy, and in the Display URL, however please do not use all caps - POOLCENTER.com, this we reserve for our use only.
You agree that you shall display on your site only those graphic or textual images indicating a Link (“poolcenter.com Images”) that are provided by us, and you shall substitute such poolcenter.com Images as directed by us with any poolcenter.com images provided by us from time to time throughout the term of this Agreement.
By loading or agreeing to have poolcenter.com images loaded onto your site, you agree that you will cooperate fully with us and comply with this Agreement at all times in a manner consistent with our current policies including but not limited to our Content Policy and our policies regarding image resolution and proprietary notices, such as copyright and trademark notifications. The Affiliate Site shall display such poolcenter.com Images prominently in relevant sections of its site. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. Each Link connecting users of your site to our site shall in no way alter the look, feel, or functionality of our site.
3. Our Responsibilities
We will be solely responsible for processing orders placed on our site by a customer following a Link from your site, tracking the volume and amount of sales generated by your site, and providing information to you regarding sales statistics through ShareASale. We will be responsible for order entry, payment processing, shipping, cancellations, returns, and customer service related to our site. poolcenter.com may accept or reject any orders in its sole discretion.
4. Affiliate Responsibilities
a. If you qualify and agree to participate as an Affiliate Site, you may display Links prominently throughout your site as you see fit in a manner consistent with this Agreement.
b. You shall be entitled to earn referral fee payments for customer sales as set forth in Sections 6 and 7 below.
c. You shall not use any existing or future software product or service (including, without limitation, any computer programming code that is an add-on or bundled with any browser or other host application) that will replace, insert, read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to poolcenter.com by any other person or entity.
d. You shall not use any existing or future software product or service (including, without limitation, any computer programming code that is an add-on or bundled with any browser or other host application) that will replace, insert, read, intercept, record, redirect, interpret, append itself to, or otherwise intercept or interfere in any manner with any click-through or other traffic-based transaction that originated from any poolcenter.com Affiliate affecting in any manner any compensation or other payment earned by or owing to any such poolcenter.com Affiliate.
e. You shall not in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of our site.
f. You shall not use any existing or future software product or service (including, without limitation, any computer programming code that is an add-on or bundled with any browser or other host application) that will replace, intercept, interfere, hinder, disrupt or otherwise alter in any manner a World Wide Web user’s access, view or usage of, or other aspect of such user’s experience at any Affiliate’s website in a manner that causes or otherwise results in a different experience from what was otherwise intended by such Affiliate. You shall not take any action that could reasonably cause any confusion to the user as to what website transactions or actions are occurring.
g. You shall not cause the creation or over-writing of any commission tracking cookie on a consumer’s computer unless it is the direct result of a click, on a link to the poolcenter.com site. You shall not cause the creation of any commission tracking cookie on a consumer’s computer through the means of automatically popping up the poolcenter.com site, through the use of “I-frames” nor through any other method, other than through a direct consumer-initiated click, on a link to the poolcenter.com site.
h. Except for linking as described above, you shall not post or serve any advertisements or promotional content around or in conjunction with the display of our site (e.g., through any “framing” technique or technology or pop-up windows), or assist, authorize, or encourage any third party to take any such action.
i. You understand that the use of unsolicited commercial e-mail (“spam”) by poolcenter.com affiliates is absolutely prohibited. Your participation in the poolcenter.com Affiliate Program constitutes your specific and unconditional agreement to abide by this anti-spam policy. Use of any lists, whether purchased or created, compiled by means of automated tools are not permitted. You must use valid e-mail headers at all times.
j. If we determine, in our sole discretion, that you have engaged in any of the foregoing activities listed in Section 4a through 4i, or any other activities prohibited by this agreement, we reserve the right (without limiting any other rights or remedies available to us) to withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement immediately without prior notice. If we are required to enforce any of the foregoing restrictions, you agree to reimburse us for any and all attorneys’ fees incurred in connection therewith.
If, at any time, we discover and determine at our sole discretion that you are using your affiliate relationship with us for any reason other than as mutually intended under this Agreement, your relationship with us may be immediately terminated without prior notice and we reserve the right (without limiting any other rights or remedies available to us) to withhold any referral fees otherwise payable to you under this Agreement. If we are required to enforce the foregoing restriction, you agree to reimburse us for any and all attorneys’ fees incurred in connection therewith.
6. Referral Fee Payment Determination
Only products that we choose to offer through our website (“Products”) that are (a) sold by us, (b) purchased by users linking to our site from your site (as an approved affiliate) pursuant to a Link (“Linked Users”), (c) delivered to a customer, (d) for which we have received full payment, shall qualify for a referral fee payment (each, a “Qualifying Purchase”). For each Qualifying Purchase, a referral fee will be paid on the amount of the order less taxes, duties, shipping, discounts and/or promotions, amounts returned for credit card fraud, bad debts or for returned goods and charge-backs. Referral fees will only be paid in US dollars. If a product that generated a referral fee is returned by the customer, we will deduct the corresponding referral fee from your next payment. The amount of the Qualifying Purchase(s) minus the applicable deductions referenced in this Section 6 shall be considered as “Net Sales”.
7. Referral Fees Payment
If we determine, in our sole discretion, that you have breached this Agreement, we may (without limiting any other rights or remedies available to us) withhold any revenue sharing fees otherwise payable to you under this Agreement. As a condition to payment of a referral fee, you must provide poolcenter.com all information reasonably necessary for poolcenter.com to process payments to you in accordance with any and all applicable laws and regulations.
8. Policies and Pricing
Customers who buy products at our site through the Affiliate Program shall be deemed to be customers of poolcenter.com. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and Product sales shall apply to those customers. poolcenter.com, at it’s sole discretion, may change our policies and operating procedures at any time and from time to time.
You shall not create, publish, distribute, or permit any written material that makes reference to us without first submitting such material to us and receiving our prior written consent.
10. Licenses and Use of the poolcenter.com Logos and Trademarks; Reservation of Rights
a. WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS, TO USE THE poolcenter.com TRADEMARKS AND LOGOS AND SIMILAR IDENTIFYING MATERIAL RELATING TO US (BUT ONLY IN THE FORM(S) AS PROVIDED BY poolcenter.com ) (COLLECTIVELY, THE “poolcenter.com’s LICENSED MATERIALS”), FOR THE SOLE PURPOSE OF PROMOTING poolcenter.com PRODUCTS ON YOUR SITE. YOU MAY NOT ALTER, MODIFY, OR CHANGE poolcenter.com’s LICENSED MATERIALS IN ANY WAY. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS IF YOU ARE A MEMBER IN GOOD STANDING OF OUR AFFILIATE PROGRAM.
b. You shall not make any use of any Licensed Materials for any purpose other than promoting Products on your site. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light.
c. You grant to us a non-exclusive license to use or display your names, titles, and logos, as the same may be amended from time to time (“Affiliate’s Licensed Materials”), in our advertising, marketing, promotional and publicity activities; provided, however, that we shall not be required to so advertise, market, promote, or publicize. This license shall terminate upon the effective date of the expiration or termination of this Agreement.
d. You may not register the phrase poolcenter.com or variations thereof for use in any search engine, portal, advertising service or similar services service. You may not purchase or register search engine keywords, AdWords, search terms or other identifying terms and domain names that include the word "poolcenter.com" or any variations thereof for use in any search engine, portal, sponsored advertising service or other search or referral service. Specifically, this policy prohibits You from bidding on:
o "poolcenter.com" and any keyword string that includes this term. For example, "poolcenter.com catalog", "poolcenter.com coupons", "poolcenter.com and coupons", "poolcenter.com pool supplies", “www.poolcenter.com”, etc.;
o Variations of poolcenter.com’s trademarks: for example "poolcenter.com com", "poolcenter.comcom", "www.poolcenter.com", "poolcenter.com-com", "poolcenter.com+com", "www.poolcenter.comcom", "ww.poolcenter.com", "wwwpoolcenter.com", etc.; or
o Any form of our trademarks or variation or misspelling thereof in connection with foreign country or other domain extensions.
o The above restrictions also apply to trademarks of other pool suppliers and competitors of poolcenter.com.
e. You shall not make any use of any coupon codes, discount codes, source codes, claim codes or other tracking codes distributed to customers by poolcenter.com that are not explicitly approved for Affiliate use. From time to time poolcenter.com may issue similar codes for use by Affiliates, and will communicate information regarding the use of those codes directly to the Affiliate.
f. The rights granted by poolcenter.com herein do not constitute any assignment of ownership or other transfer to you of ownership interests therein or in any property of poolcenter.com, including without limitation, any domain name, website or in any intellectual property of poolcenter.com. At no time during or after the term of this Agreement shall you challenge or assist others to challenge any poolcenter.com trademark, logo, or trade dress (except to the extent expressly prohibited by applicable law) or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to any poolcenter.com trademark, logo, or trade dress.
11. Obligations Regarding Your Site
a. You shall be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. Such responsibilities include, but are not limited to: (1) the technical operation of your site and all related equipment; (2) creating and posting product descriptions, and references on your site and linking those descriptions to our site; (3) the accuracy and propriety of materials posted on your site; and (4) ensuring that materials posted on your site and its domain name do not violate or infringe upon, without limitation, the copyrights, trademarks, privacy or other personal or proprietary rights of any third party. Your site shall not (i) violate or infringe upon the rights of any third party, (ii) be libelous, (iii) advocate or promote sexually explicit material, (iv) advocate or promote violence, (v) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, or (vi) otherwise be illegal.
b. You agree that poolcenter.com shall bear no responsibility or liability for any development, operational, maintenance and content matters related to your site. Further, you agree to indemnify and hold poolcenter.comharmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site(s).
12. Term of the Agreement
The term of this Agreement shall begin upon our acceptance of your Affiliate Program application in the ShareASale system and shall end when terminated by either party. Either Party may terminate this Agreement at any time, with or without cause, by giving the other Party notice of termination. You are only eligible to earn referral fee payment(s) on sales occurring during the term, and referral fee payment(s) earned through the date of termination shall remain payable only if the related poolcenter.com Product orders are not canceled or returned, provided, however, we may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement at any time at our sole discretion by posting a change notice or new version of the Agreement on our site. Terms may be changed or updated at any time, and you agre to be bound by such new modified terms. Modifications may include, but are not limited to, changes in the scope of available referral fee payment(s) or the payment program in general, payment schedules, payment procedures, and Affiliate Program rules. If any modification is unacceptable to you, your only recourse is to terminate this agreement. Your continued participation in the Affiliate Program following our posting of a change notice or new agreement on our site shall constitute binding acceptance of the change.
14. Relationship of Parties
You and poolcenter.com are independent contractors, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You shall have no authority to make or accept any offers or representations on our behalf. You shall not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
We make no express or implied warranties or representations with respect to the Affiliate Program or any poolcenter.com Products sold through the Affiliate Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site shall be uninterrupted or error free, and we shall not be liable for the consequences of any interruptions or errors.
16. Representations and Warranties
You hereby represent and warrant to us as follows:
a. This Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
b. The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby shall not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
c. You are the sole and exclusive owner of Affiliate’s Licensed Materials and have the right and power to grant to us the license to use your trademarks in the manner contemplated herein, and such grant does not and shall not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
d. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.
e. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
During the course of your participation in the Program, you may receive business and financial information relating to poolcenter.com or to the Affiliate Program that is not known to the general public ("Confidential Information"). Confidential Information includes, without limitation, product datafeeds, customer information, referral fee percentages and pricing and sales information. You agree (a) that all Confidential Information will remain poolcenter.com’s exclusive property; (b) that you will use Confidential Information only as is reasonably necessary for your participation in the Affiliate Program; and (c) you will not disclose Confidential Information to any individual, company, or other third party.
18. Limitation of Liability
WE SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM SHALL NOT EXCEED THE TOTAL REFERRAL FEE PAYMENT(S) PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT WITHIN THE LAST SIX (6) MONTHS.
You hereby agree to indemnify and hold harmless poolcenter.com and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of Affiliate’s Licensed Materials infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
20. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND BY APPLYING TO THE PROGRAM IN THE SHAREASALE NETOWRK AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
21. Governing Law
This Agreement shall be governed by the laws of the United States and the State of Illinois, 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 Chicago, Illinois, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement shall be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement shall not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.
22. Disclosure for Legal Purposes
You hereby authorize us to disclose information pursuant to judicial and administrative proceedings, and in connection with law enforcement activities and as otherwise may be permitted by law, to law enforcement or government agencies if we believe the disclosure is necessary or appropriate. You also authorize us to disclose information if we believe the disclosure is necessary or appropriate in the event of an investigation of improper or illegal conduct in connection with your activities as an affiliate, such as fraud, misrepresentation, intellectual property infringement, or other activity that may put us at risk for liability. We will, whenever we believe reasonably possible, use our reasonable efforts to inform you if such information may be so revealed.
If any term, clause or provision of this Agreement shall be deemed invalid or unenforceable for any reason, the remainder of this Agreement shall remain valid and enforceable in accordance with its terms.
poolcenter.com’s failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.
25. No Assignments
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent.
26. Survival of Provisions
The provisions of Sections 10, 12, 16, 17, 18, 19, 21, 26 and 26 hereof shall survive termination of this Agreement.