Ace hardware terms of agreement

  1. Enrollment; Eligibility. In order to participate in this Affiliate Program you must complete a participant application that is accessible through this Merchant Website or through the Network. You will be notified if your application has been accepted or rejected. We reserve the right to reject any application in our sole discretion. If we reject your application, you may reapply at any time. Only websites with general or United States based domain name extensions (e.g. .com, .net, .org, .us, etc.) and primarily serve a United States based audience are eligible for participation in this Affiliate Program. You must be at least 18 years of age to join this Affiliate Program. By submitting an application to participate in this Affiliate Program, you represent, warrant, covenant and agree that (i) all information that you provide to us or Pepperjam in connection with your participant application and/or in connection with your participation in this Affiliate Program is true, complete and accurate, (ii) you have all necessary rights and authority to enter into this Agreement and perform your obligations hereunder, (iii) this Agreement will constitute a legal, binding and enforceable agreement against you in accordance with the terms and conditions herein, and (iv) your execution and performance hereunder will not conflict with or result in a breach or violation of any other agreement, arrangement or understanding to which you are bound.
  2. Suitability of Affiliate Websites. (a) Your websites are not suitable and you may not participate in the Affiliate Program if the websites operated by you violate any of the following website suitability restrictions. Further, you represent, warrant, covenant and agree that none of your participating websites or any content or technology contained thereon will, at any time during the period that you are an affiliate in this Affiliate Program, violate any of the following website suitability restrictions. In the event that we believe that you have violated any of the following website suitability restrictions we may, in addition to all other rights and remedies that we may have, terminate this Agreement and your participation in this Affiliate Program without notice. Your participating websites may not:
  3. Right to Use Merchant Content. (a) Subject to the terms and conditions herein, we hereby grant to you, during the term hereof, a limited, non-exclusive, non-transferable, revocable, non-sublicenseable, non-assignable right to (i) access the Merchant Website through Qualified Links (defined below) provided by us from time to time, and (ii) use and display the Merchant Content (as defined below) that we may make available to you from time to time solely as provided to you through the Network and solely for the purpose of generating the sale of Merchant’s products from your website that we have approved and solely in connection with your participation in this Affiliate Program. Any attempt to sublicense, assign or transfer this right is void. We may terminate your rights to use the Merchant Content for any reason at any time in our sole and absolute discretion.
  4. Special Offers.
  5. Advertising Rules. IF YOU FAIL TO COMPLY WITH ANY OF THE RESTRICTIONS IN THIS SECTION 5, AT OUR SOLE DISCRETION, YOU FORFEIT ANY COMMISSIONS OR OTHER PAYMENTS OTHERWISE EARNED BY YOU DURING SUCH TIME THAT YOU ARE NOT IN COMPLIANCE. References to ‘your site’ shall also include any of your social media pages and mobile applications.
  6. Property Ownership Rights. You acknowledge and agree that we retain all rights, title and interest in and to all property rights embodied in or associated with the Merchant Content. You represent, warrant, covenant and agree that you will not, and will not assist any third party to, now or in the future, (i) take any action challenging or otherwise inconsistent with our ownership of, or other right in, the Merchant Content, or (ii) register or attempt to register any trademark, service mark, logo, trade name, domain name, or similar business identifier, that contains any name, trademark, service mark, logo, trade name or other content or material owned or controlled by us or any derivation, including misspellings, thereof. All goodwill and benefits accruing from the use of the Merchant Content will automatically vest in us. You agree to cooperate with us and to take any additional actions reasonably requested by us to effect, perfect or confirm our rights, title and interest in the Merchant Content.
  7. Operation and Maintenance of the Merchant Website. (a) You acknowledge and agree that we will accept or reject, in our sole and absolute discretion, all orders by customers for merchandise placed on or through the Merchant Website. You further acknowledge and agree that (i) you do not have any authority to make or accept any offer or commitment on behalf of us, (ii) we cannot, and do not, guarantee the availability of any merchandise or other services offered for sale on the Merchant Website, and (iii) we are solely responsible for all pricing, merchandising, order processing, order fulfillment, shipping, returns and all other aspects of the Merchant Website and the sale of merchandise thereunder. Customers who access the Merchant Website will be deemed our customers. Accordingly, all of our then applicable rules, policies and procedures concerning orders, returns, refunds, customer service, privacy and other terms of use and sale will apply to such customers. As between the parties, all information obtained through the use of the Merchant Website shall be our exclusive property.
  8. Revenue Share Payments. (a) During the term of this Agreement, we agree to pay you a revenue share (the "Revenue Share") equal to the applicable percentage of Net Revenue determined pursuant to the schedule set forth in the Affiliate Program overview/description materials posted on the Network or otherwise provide by us. We reserve the right, at our sole discretion, to change, modify, add or remove portions of this Revenue Share schedule at any time without notice. For purposes of this Agreement, "Net Revenue" means all cash consideration (not including any portion of payment made through the redemption coupons or credits, or the purchase of gift certificates or gift cards) from merchandise sold in a transaction resulting directly from a Qualifying Link tracked by Pepperjam from your website to the Merchant Website in accordance with this Agreement, where the customer purchases such merchandise, less all taxes, shipping and handling charges, gift wrapping and other value-added service charges, returns and chargebacks. You acknowledge and agree that we will not be obligated to pay any revenue share unless we actually ship the applicable order and receive full payment for such order.
  9. Pepperjam Tracking. (a) We will track sales made to customers who purchase products using Qualified Links, that you will generate using Pepperjam's technology, from your website to our website, and reports summarizing this sales activity will be available to you also through the Network. The form, content, and frequency of the reports are limited to those reports and capabilities available through the Network and may vary from time to time in our and Pepperjam's reasonable discretion. We are not responsible for any changes that Pepperjam may make in their reporting format, timing, or types of reports available to the members of our Affiliate Program. To permit accurate tracking, reporting and fee accrual, you must ensure that the links between your website and our website are properly formatted. We are not responsible for improperly formatted links regardless of whether you have made amendments to the code or not. In addition, we are unable to track or provide you credit for sales from customers that are referred to us with browsers that do not have their cookies setting enabled. You hereby agree not to disclose the such information contained in Pepperjam reports regarding us to any third party without our prior written consent and that such information is the property and Confidential Information of ours.
  10. Responsibility for Your Websites and Your Participation.
  11. Violation of Terms and Affiliate Indemnification.
  12. Term and Termination. (a) This Agreement shall automatically terminate on the date on which we no longer maintain or you are no longer a member of the Affiliate Program contemplated hereunder. Additionally, either party may terminate this Agreement at any time and for any reason by providing notice (including via e-mail) to the other party. We may also terminate this Agreement immediately, without notice, if we determine, in our sole discretion, that you have breached this Agreement or that your website(s) is unsuitable to participate in this Affiliate Program. If you do not generate at least fifty (50) click-throughs or at least one sale per month through Qualifying Links, you may be removed from the Affiliate Program. Either party may terminate a Special Offer at any time by deleting its acceptance through the Network, and such termination of a Special Offer shall not be deemed a termination of this Agreement or any other Special Offers. Sections 3(c), 4(b), 10-23 (together with all other provisions that may reasonably be interpreted as surviving termination or expiration of this Agreement) will survive any termination or expiration of this Agreement.
  13. Modification of Agreement. We reserve the right to modify this Agreement, at any time in our sole discretion, by posting a change of notice or a new agreement on the Network, and, if applicable, on the Merchant Website. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU AGREE THAT YOUR SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THE MERCHANT CONTENT AND PARTICIPATION IN THIS AFFILIATE PROGRAM FOLLOWING ANY MODIFICATION OF THIS AGREEMENT SHALL CONSTITUTE CONCLUSIVE AND BINDING ACCEPTANCE TO ANY MODIFICATION OR NEW AGREEMENT.
  14. Warranty Disclaimer. NEITHER WE NOR ANY OTHER MERCHANT PARTY MAKES ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES, WITH REGARD TO THE PRODUCTS OR SERVICES SOLD THROUGH THE MERCHANT WEBSITE, THE OPERATION AND MAINTENANCE OF THE MERCHANT WEBSITE OR THE NETWORK, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER WE NOR ANY OTHER MERCHANT PARTY MAKES ANY REPRESENTATION THAT THE OPERATION OF THE MERCHANT WEBSITE OR THE NETWORK WILL BE UNINTERRUPTED OR ERROR-FREE.
  15. Limitation of Damages. NEITHER WE NOR PEPPERJAM OR ANY OTHER MERCHANT PARTY WILL HAVE ANY LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY LOSS OF REVENUE, DATA OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM. FURTHER, THE TOTAL, AGGREGATE LIABILITY OF THE MERCHANT PARTIES ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM WILL IN NO EVENT EXCEED THE TOTAL REVENUE SHARE PAID OR PAYABLE BY US TO YOU UNDER THIS AGREEMENT DURING THE PRECEDING TWELVE (12) MONTH PERIOD PRIOR TO THE DATE SUCH LIABILITY AROSE. ALL CLAIMS MADE HEREUNDER BY YOU AGAINST ANY MERCHANT PARTY SHALL BE MADE WITHIN 120 DAYS OF THE ACT OR OMISSION THAT FORMS THE BASIS OF SUCH CLAIMS.
  16. Independent Contractors. We, you, and Pepperjam are each independent contractors and nothing in this Agreement or in any Pepperjam affiliate program documents is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative, or employment relationship.
  17. Governing Law/Arbitration. This Agreement will be governed by and construed in accordance with the substantive laws of the Commonwealth of Pennsylvania, excluding its conflict of laws principles. You hereby submit to the exclusive jurisdiction of the American Arbitration Association ("AAA") in connection with any dispute relating to, concerning, or arising out of this Agreement. The arbitration before the AAA shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator’s authority to resolve and make written awards is limited to claims between you and us (and/or another Merchant Party) alone. Claims may not be joined on consolidated unless agreed to in a writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Notwithstanding any other provisions in this Agreement, and without waiving any party’s right to appeal, if any portion of this provision is deemed invalid or unenforceable, the validity, legality and enforceability of the remaining provisions in this Agreement will not in any way be affected or impaired thereby. Subject to and without limiting the foregoing, any lawsuit relating to this Agreement must be brought in the federal or state courts located in Philadelphia, Pennsylvania.
  18. Press Release; Publicity. You agree that you will not issue any press release or make any other similar public announcement that in any way makes any reference to us or Pepperjam without our prior written consent, which consent may be withheld in our sole discretion.
  19. Force Majeure. Our performance under this Agreement shall be excused to the extent that such performance is hindered, delayed or made commercially impractical by causes beyond our reasonable control.
  20. Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify, or place any construction upon or on any of the provisions of this Agreement.
  21. Assignment. You may not assign this Agreement or any of your rights or delegate any of your obligations under this Agreement, by operation of law or otherwise, without our prior written consent, and any such attempted assignment shall be void. Subject to such restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
  22. Waiver. Our failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
  23. Entire Agreement and Related Media Purchase. This Agreement, the Revenue Share schedule, and (if applicable) the IAB Standard Terms (as defined below) represent the complete agreement and understanding between us and you and supersedes any other oral or written communications or understandings between us and you regarding the subject matter hereof. No amendment or modification to this Agreement will be binding upon us unless agreed to by an authorized representative of us. Notwithstanding the foregoing, the AAAA/IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less (Ver. 3.0) found at http://www.iab.net/media/file/IAB_4As-tsandcs-FINAL.pdf (the "IAB Standard Terms") shall govern any purchase of CPC Deliverables or CPM Deliverables (each as defined in the IAB Standard Terms) from you by us; provided that Sections 11, 14, and 15 of this Agreement shall apply to purchases of such Deliverables in addition to and not in lieu of the provisions in the IAB Standard Terms. No terms, provisions or conditions of any purchase order, acknowledgment, click-through agreement or other business form that you may use or any handwritten changes by you will serve to alter or have any effect on the terms of this Agreement or the IAB Standard Terms, regardless of any apparent acceptance thereof by us or any Merchant Party.
    -- End Of Agreement --

EXHIBIT A
Social Media Policy & Disclosure Guidelines

These Social Media Policy & Disclosure Guidelines (the "Guidelines") set forth disclosure guidelines for our affiliates and our affiliate networks. The Guidelines should be read together with our and Pepperjam’s other policies.

A. Disclosure of "Material Connections" Under FTC Endorsement Guides

We and Pepperjam believe in full, fair and effective disclosures of "material connections" relating to your relationship with us in accordance with Federal Trade Commission’s Guides Concerning Endorsements and Testimonials ("FTC Endorsement Guides"), located at http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf.

As such, we require that all our affiliates and affiliate networks adhere to the FTC Endorsement Guides and disclose their "material connections" when publishing content about us and our products, services and sites, including, but not limited to, on review/rating sites, blogs, directories, and other websites, or via email, videos or collateral that purport to provide an endorsement or assessment in connection with the Network.

B. How to disclose "Material Connections"
In order to comply with the FTC Endorsement Guides, your disclosure should be frequent, clear, conspicuous, and require no user action in accordance with the following guidelines:
1. Frequent
Your disclosure must appear on any page that has a review, recommendation, comment or article that promotes a product for which you receive any form of compensation. Placing a single disclosure on your home page or a link to a disclosure in your footer is not sufficient.
2. Clear
It must be immediately clear at the outset that you receive compensation for your review. This disclosure should be in language that is easy to understand and should not be in legalese.
For example, the following disclosure is an example of an acceptable disclosure:
Disclosure: We are a review site that receives compensation from the companies whose products we review. We are independently owned and the opinions expressed here are our own.
3. Conspicuous
The disclosure must be conspicuous and easy to view on your site. For the disclosure to be considered conspicuous, the font, color and size should be prominent and at least as and easily readable as the main text, including:
• The disclosure should be appropriately titled, such as "Disclosure: " to highlight its purpose.
• At least as large or larger as the main text on the page.
• In contrast with the background and the main text.
• Darker than its background or its main text.
4. Require No User Action
Your disclosure must be immediately visible to anyone who visits your site and reads a review, ranking or an endorsement. A visitor should not be required to scroll, click or hover to read the disclosure.
• Scrolling: Your disclosure should appear above the fold so that the visitor does not have to scroll down to see it.
• Mousing over: Visitors should not have to mouse over your link to view your disclosure.
• Clicking: Visitors should not have to click a link to view your disclosure. Clickable links are only acceptable if the fact you are compensated is still obvious without clicking. For example:
Acceptable: Disclosure: We are compensated for our reviews. Click here for details.
Unacceptable: Click here to read our FTC disclosure.
Please take steps immediately to make sure that your site is in compliance with these guidelines.

You are advised to seek and obtain your own legal advice on how these Guidelines apply to your website or other promotional activities in connection with the Affiliate Program.
We will monitor affiliate sites to verify compliance with the FTC Endorsement Guides. We reserve the right to withhold commission fees and/or suspend or cancel the affiliate relationship with you should we determine, in our sole and absolute discretion, that you are not in compliance with the FTC Endorsement Guides or these Guidelines.