Duluth Trading Co. Affiliate Agreement
The undersigned, by submitting the Affiliate Application and this Affiliate Agreement (collectively "Agreement") to Duluth Holdings, Inc., a Wisconsin corporation d.b.a. Duluth Trading Company (hereinafter "Duluth Trading"), acknowledges that it wishes to become an Affiliate, and in consideration of Duluth Trading reviewing Affiliate's Application, has read and agrees to be bound by the terms and conditions of this Agreement as well as any specific terms and conditions that may be required to participate in the affiliate program. Affiliate represents and warrants that all information provided in the Affiliate Application is true and accurate. Affiliate understands that Duluth Trading has sole discretion over whether to accept or reject Affiliate's Application, and that this Agreement will not be binding unless Affiliate has been notified of such acceptance.
This agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Duluth Trading Affiliate Program ("Program"). "Affiliate" refers to the affiliate, individual and/or corporation applying for the program. "Our Site" or "the Duluth Trading site" refers to www.Duluthtrading.com and "Your Site" refers to the site entered in the Web site address field of the Affiliate Application form.
To begin the enrollment process, you will need to read the terms and conditions of this Affiliate Agreement. Once you submit a complete Affiliate Application, Duluth Trading will evaluate your application in good faith and notify you of its acceptance or rejection of your application in a timely manner. If Duluth Trading accepts your Application, then you will become a "Participant" in the Program.
Duluth Trading will make available graphic and textual links (referred to herein as "Links" or individually as a "Link") which, subject to the terms and conditions of this Agreement, you may display on your Web site. The Links are available through Duluth Trading's Affiliate Reporting Management site. The Links will identify Your Site as a member of the Program and will establish a link from Your Site to Our Site.
Duluth Trading will:
A. Provide all information and content reasonably necessary to allow you to make appropriate Links from Your Site to Our Site. This includes: providing instructions, materials and Links for you to participate in the program, providing information to you regarding your program activity, compensating you for the agreed amount of program commissions, and providing links back to Your Site for visitors arriving from a program link from Your Site. Duluth Trading will not provide technical assistance or personalized instruction on the use of the Links.
B. Process and Fulfill orders placed on Our Site by a customer following a Link from Your Site, including, but not limited to order entry, payment processing, shipping, cancellations, returns and related customer services. Duluth Trading reserves the right, in its sole discretion, to reject orders.
C. Track the volume and amount of sales placed on Our Site that are generated by Your Site, and provide information to you regarding sales statistics.
As an Affiliate, you agree:
A. You will cooperate fully with Duluth Trading in order to establish and maintain any Links placed on Your Site. In order to permit accurate tracking and reporting, you will be solely responsible for ensuring that Links from Your Site to Our Site are properly formatted.
B. Duluth Trading, at its sole discretion, may monitor Your Site at any time to determine if you are in compliance with the terms and conditions of this Agreement.
C. The Links will in no way affect or alter the look, feel, or functionality of Our Site.
As a Participant, in exchange for your establishing a Link on Your Site, you may earn fees as set forth in this Section. Sales of goods on Our Site via a Link from Your Site will qualify for fees when all of the following conditions are met:
A. Goods are sold by Duluth Trading via Our Site;
B. Goods are purchased by customers linking to Our Site from Your Site through a Link;
C. Goods are shipped by Duluth Trading; and
D. Duluth Trading receives payment in full for the goods.
We will pay you a commission of ten percent (10%) on net product sales generated by customers referred by Your Site. For a product sale to be eligible to earn a commission, the customer must have followed a Link to Our Site from Your Site, purchased the product using our online order system, and paid for the product in full. Any commissions paid to you or credited to your account on sales generated by Your Site that result in returns, cancellations, bad debt, or fraud will be deducted from your current affiliate balances. Net product sales are defined as total merchandise sales, excluding shipping and handling and taxes, less any returns or allowances. Certain goods and services appearing on Our Site are excluded from this Agreement at Duluth Trading's sole discretion, including, but not limited to the purchase of gift certificates / gift cards.
In addition we may pay special incentives and bonuses from time to time at our sole discretion.
When total commissions (as outlined in section 5 above) due to you exceed twenty-five dollars ($25.00), we will send you a check in the amount of the earned commission less any taxes required to be withheld under applicable law. Payments to you, if due, will be sent approximately thirty (30) days after the end of each calendar month. If total fees due to you at the end of a month do not exceed twenty-five dollars ($25.00), Duluth Trading will carry the balance over to the next month. Interest will not accrue on any fees owed to you.
You will choose a password, which will allow you to access a password-protected Web site to receive sales statistics applicable to Your Site as a Participant in the Program. All information available at this password protected Web site is confidential and subject to the confidentiality terms and conditions set forth in Section 16 hereof.
Customers purchasing goods through the Program will be deemed customers of Duluth Trading. All rules, policies, terms, conditions and operating procedures concerning customer orders, customer service, and Duluth Trading sales will apply to these customers. Duluth Trading may change its policies and operating procedures, including pricing, at any time. Duluth Trading will determine, in its sole discretion, the prices to be charged for goods sold on Our Site in accordance with its own pricing policies. You shall not include price information on Your Site unless pricing information is made available on Links provided by Duluth Trading. Prices and availability of goods sold via Our Site may vary from time to time. Duluth Trading will use commercially reasonable efforts to present accurate information, but it cannot guarantee the availability or price of any particular product.
During the term of this Agreement, Duluth Trading grants you a non-exclusive, non-transferable, revocable right to provide Links to Our Site according to the terms of this agreement, and solely in connection with such Links provided by Duluth Trading, to use Duluth Trading trademarks, logos, names, product graphics and text, content, or similar identifying material provided on our Web site ("Marks") for the sole purpose of promoting our products on Your Site.
Except as specifically authorized herein, you may not alter, modify or reproduce the Marks in any way without obtaining prior written permission from Duluth Trading. All Marks are the exclusive property of Duluth Trading and we reserve all rights in our Marks. All your rights to use the Marks end upon termination of this Agreement by either party.
Use of Duluth Trading Marks outside of Your Site is forbidden without prior written permission from Duluth Trading. You cannot make any use of any Marks for purposes other than the Links without first submitting a sample to Duluth Trading and obtaining Duluth Trading's prior written consent. This includes, but is not limited to, keyword advertising on search engines and other Web sites, and any advertising via e-mail.
You agree that you will not in any way dispute, or do anything to impair the validity of Duluth Trading or Duluth Trading's affiliates' rights in the Marks and Duluth Trading's or Duluth Trading's affiliates' ownership and right to use and control the use of the Marks. You further agree that all use of the Marks by you shall inure to the benefit of Duluth Trading and its affiliates and agree that nothing in this Agreement shall give you any right, title or interest in the Marks other than to use the Marks in connection with this Agreement. You agree not to use the Marks in any manner that is disparaging or that otherwise portrays Duluth Trading or its affiliates in a negative light. Duluth Trading may revoke your rights to to use the Marks at any time by giving you written notice.
During the term of this Agreement, you grant Duluth Trading a non-exclusive license to utilize your names, titles, and logos ("Participant Marks") to advertise, market, promote, and/or publicize in any manner, provided however that Duluth Trading shall not be required to do so. This license shall terminate upon the effective date of the expiration or termination of this Agreement.
You will 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, the technical operation of Your Site and all related equipment; the accuracy and propriety of materials posted on Your Site (including, but not limited to, Duluth Trading related materials); ensuring that materials posted on Your Site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal, scandalous, or immoral. Duluth Trading disclaims all liability for all such matters
You agree to indemnify and hold harmless Duluth Trading and its affiliated entities, their respective partners, officers, directors, agents and employees, and their respective heirs, administrators, executors, successors and assigns, from and against any and all claims, demands, obligations, causes of action and lawsuits and all damages, liabilities, fines, judgments, penalties, costs (including the payment of reasonable attorneys' fees and disbursements), relating to the development, operation, maintenance, and contents of Your Site.
You hereby agree that Your Site will not, in any way, copy or resemble the look and feel of the Duluth Trading site nor will you do anything to create the impression that Your Site is the Duluth Trading site or a part of the Duluth Trading site. You also hereby agree that you will not frame the Duluth Trading site in any manner including without limitation causing your Web site's tool bar to appear on the Duluth Trading site. You also agree that you will not directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money (including any rebate), or granting of any discount or other benefit) for using links on Your Site to access Our Site. You further hereby agree that Your Site will not contain any content of the Duluth Trading site or any materials which are proprietary to Duluth Trading except with the prior written permission of Duluth Trading or except materials obtained by you via the Affiliate Management site in accordance with the provisions in this Agreement or the policies or instructions of Duluth Trading relative thereto. You further agree that your domain name does not and will not contain "Duluth Trading" or any variation thereof. You also agree that your domain name does not and will not contain the names of, or any variation of the names of, Duluth Trading's affiliated entities and or Marks.
The term of this Agreement will begin upon acceptance of your application by Duluth Trading and will end immediately when terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination via letter, fax or e-mail.
If Duluth Trading accepts your application, you will be provided with an address for notice purposes. The contact information you provide on your application will serve as your notice information. If Duluth Trading terminates this Agreement or notifies you of a breach by you, you shall be required to remove all Links, and any other information regarding Duluth Trading or its affiliated entities, within twenty-four (24) hours of receipt of notice and Duluth Trading may take all actions necessary to disable your participation in the Program.
You are only eligible to earn fees on sales incurred during the term of this Agreement, and fees earned through the date of termination will remain payable only if the related orders are not cancelled or returned. Duluth Trading may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
Duluth Trading reserves the right to modify any terms and conditions of this Agreement at any time. You will be notified by e-mail and a change notice will be posted on the Duluth Trading site. Modifications may include, but are not limited to, changes of the scope of available fees, fee schedules, payment procedures, and Participant rules. If any modification is unacceptable to you, your only recourse and sole remedy is to terminate this Agreement. Your continued participation in the Program following the posting of a change notice or new agreement by Duluth Trading on the Duluth Trading site will constitute your binding acceptance of the change.
The parties to this Agreement are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties nor shall it grant either party any authority to assume or to create any obligations on behalf of or in the name of the other.
Duluth Trading shall not be liable or responsible for the acts, omissions or liabilities of you. In no event will you take actions that would expressly or impliedly create the impression that you are an employee or agent of Duluth Trading or its affiliated entities.
You will have no authority to make or accept any offers or representations on behalf of Duluth Trading. You will not make any statement, whether on Your Site or otherwise, that reasonably would contradict anything in this Section.
Except as specifically provided herein, Duluth Trading makes no express or implied warranties or representations with respect to the Program or any goods sold on the Duluth Trading site (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, Duluth Trading makes no representation that the operation of the Duluth Trading site will be uninterrupted or error free, and Duluth Trading will not be liable for the consequences of any interruptions or errors. DULUTH TRADING HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NONINFRINGEMENT.
You hereby represent and warrant to Duluth Trading as follows:
You will use the Links only as authorized hereunder. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
The execution, delivery, and your performance of this Agreement, and your consummation of the transactions contemplated hereby will not, with or without notice, lapse of time, or both, conflict or violate any provision of law, rule, or regulation to which you are subject; any provision of your by-laws or certificate of incorporation; or any agreement or other instrument applicable to you or binding upon your assets or properties.
You are the sole and exclusive owner of the Participant Marks and have the right and power to grant Duluth Trading the license to use the Participant Marks in the manner contemplated herein, and such grant does not and will not breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties; or infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
No consent, approval, or authorization of, exemption by, or filing with any governmental authority or third party is required in connection with the execution, delivery, and performance of this Agreement or any other action taken by you.
To the best of your knowledge, there is no pending threatened claim, action, or proceeding against you, or any affiliate of yours with respect to the execution, delivery, or consummation of this Agreement, or the Participant Marks. To the best of your knowledge, there is no basis for any such claim, action, or proceeding.
You are an adult of at least 18 years of age.
Each of the parties hereto agrees that all information relating to this Agreement, including, without limitation, business and financial information, product designs, customer and vendor lists; and pricing and sales information, concerning Duluth Trading, its affiliated entities, and/or you shall remain strictly confidential and secret. Such information shall not be utilized, directly or indirectly by either party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliated entities.
Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information to any person pursuant to a subpoena issued by any court or administrative agency; to its accountants, attorney, or other agents on a confidential basis, and otherwise as required by applicable law, rule, regulation, or legal process. In the event that a court (or other authority with power to do so) orders either party to disclose any confidential information of the other party, the party receiving the order shall give the other party immediate notice of such order.
DULUTH TRADING WILL 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 PROGRAM, EVEN IF DULUTH TRADING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE AGGREGATE LIABILITY OF DULUTH TRADING ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
You hereby agree to indemnify and hold harmless Duluth Trading and its affiliated entities, and their respective directors, officers, employees, agents, partners, and their respective heirs, administrators, executors, successors and assigns, from and against any and all claims, causes of action, demands, obligations, lawsuits, liabilities, losses, damages, fines, penalties, judgements, settlements, costs, and expenses (including reasonable attorneys' fees and disbursements) (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 use of the Participant Marks by Duluth Trading infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party; (ii) any failure or breach of any representation, warranty, covenant, or agreement made by you herein; (iii) any misuse of the Participant Marks; (iv) or any claim related to your Web site, including, without limitation, content therein not attributable to Duluth Trading.
You acknowledge that you have read this Agreement and agree to all of the terms and conditions in this Agreement. You understand that Duluth Trading 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 representation, guarantee, or statement other than as set forth in this Agreement.
This agreement will be governed by the laws of the United States and the State of Wisconsin, without reference to rules governing choice of laws. You hereby consent to the exclusive jurisdiction and venue of the state and federal courts located in Dane County, Wisconsin, for the resolution of any disputes regarding this Agreement, the Marks, and/or the Participant's Marks.
Duluth Trading may sell, transfer, assign or otherwise dispose of any or all of its rights or obligations under this Agreement, in whole or in part, at any time and from time to time without notice to or the consent of you. You may not sell, transfer, assign or otherwise dispose of any or all of your rights or obligations under this Agreement in whole or in part, without the prior written consent of Duluth Trading. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. The failure of either party to exercise any of its rights under this Agreement for a breach thereof shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach.
If any term or provision of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, order or other rule of law, that term or provision shall be deemed modified or deleted, but only to the extent necessary to comply with the statute, regulation, ordinance, order or rule, and the remaining provisions of this Agreement shall remain in full force and effect.
In the event it becomes necessary to commence a lawsuit to enforce or otherwise give effect to the terms of this Agreement, the prevailing party by reason of a final decision by an arbiter, judge or jury shall be entitled to recover from the other party reasonable attorneys' fees and expenses actually incurred by reason of the lawsuit.
This Agreement constitutes the entire contract between the parties relating to the Program and cancels and supersedes all previous negotiations and contracts, whether written or oral, between the parties relating thereto. Any modification to this Agreement must be in writing and signed by both parties. Terms contained in any reports, invoices, or other documentation contrary to the terms of this Agreement shall not be valid and shall have no application to Duluth Trading.