By enrolling in the SwimOutlet.com Affiliate Program ("Affiliate Program"), you agree with Spiraledge, Inc. d/b/a SwimOutlet.com (sometimes referred to below as "we" or "us") as follows. Collectively, you and we may be referred to below as the "parties" and each individually as a party. "The SwimOutlet.com Affiliate Program Terms and Conditions are referred to as the "Affiliate Agreement."
BY CHECKING THE BOX OR CLICKING THE "ACCEPT AND CONTINUE" BUTTON, AS APPLICABLE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AFFILIATE PROGRAM, OR BY CONTINUING TO PARTICIPATE IN THE AFFILIATE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE, REVISED AFFILIATE AGREEMENT, YOU (A) AGREE TO BE BOUND BY THIS AFFILIATE AGREEMENT; (B) ACKNOWLEDGE AND AGREE THAT 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 EXPRESSLY SET FORTH IN THIS AFFILIATE AGREEMENT; AND (C) HEREBY REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR) AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THIS AFFILIATE AGREEMENT, INCLUDING THE REQUIREMENTS TO MAINTAIN YOUR AFFILIATE STATUS. IN ADDITION, IF THIS AFFILIATE AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS AFFILIATE AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS AFFILIATE AGREEMENT.
1. Tracking Referrals: We will assign you a unique SwimOutlet.com URL (i.e.,www.swimoutlet.com/myswimteamname) in order to track the sales that you generate through the customers that you refer to us. You may link to the URL on your website by means of a text link or a banner ad supplied by us. You may use only current banners supplied by us; unauthorized banners may not be used. In order for you to be eligible for a commission on any purchase (including future purchases by a repeat customer), the customer must log in to SwimOutlet.com through your unique URL and complete the purchase before logging out. Because of the difficulty verifying other purchases by customers you refer to us, we will not pay commissions unless this method is used. Finally, please note that you may only earn commissions by referring customers to SwimOutlet.com. We do not support affiliate drop shipping or external shopping cart systems.
2. Commissions: You will receive a commission equal to a percentage of the sales price of each item, not including sales tax or shipping. Commissions are not earned for any purchases where goods are shipped directly from manufacturers. Currently, we offer an 8-10% commission with a cookie window of 7 days. In the future, we may change our commission structure by updating these terms and conditions. We reserve the right to provide refunds and price adjustments in our commercially reasonable discretion. If we provide a refund or price adjustment for a sale on which we paid a commission to you (for customer returns or any other reason), we will adjust your commission on a pro-rata basis. You agree that we may offset the reduction against future commissions payable to you. You also agree that commissions are determined by earnings tracked through SwimOutlet.com reporting. Commissions may be redeemed for either cash (payable in United States currency) or SwimOutlet.com store credit. Participants may track commissions and redeem them by logging onto their account: http://www.swimoutlet.com/myaccount.asp. In order to redeem cash, your account balance must be at least $25.00 U.S. To redeem SwimOutlet.com store credit, there are no payout minimums. We issue cash and store credit payments on a quarterly basis, approximately two months following the end of each calendar quarter.
* Customized Gear: You will receive commission equal to the sales price of the product being customized, not including sales tax or shipping. You will not receive commission on the cost of customization services which include but are not limited to: heat press and embroidery.
You will not receive commissions on the sale of any consigned products including but not limited to any USA Swimming and USMS products.
3. Important Matters for Participant: Be courteous and polite when you are promoting SwimOutlet.com. Any affiliate using illegal or unethical marketing methods, including (but not limited to) unlawful email spam, will be immediately terminated from the program. The Affiliate Program is void where prohibited. You are not eligible to enroll or maintain your status in the Affiliate Program is your website is unsuitable. Unsuitable sites include those that:
- (a) promote or contain sexually explicit materials;
- (b) promote violence or contain violent materials;
- (c) promote or contain libelous or defamatory materials;
- (d) promote discrimination, or employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation, or age;
- (e) promote or undertake illegal activities;
- (f) are directed toward children under 13 years of age, as defined by the Children’s Online Privacy Protection Act (15 U.S.C. §§ 6501-6506) and any regulations promulgated thereunder;
- (g) include any trademark of SwimOutlet.com or its affiliates, or a variant or misspelling of a trademark of SwimOutlet.com or its affiliates, in any domain name, subdomain name, or in any username, group name, or other identifier on any social networking site; or
- (h) otherwise violate intellectual property rights
You will ensure that the information in your application for membership in the Affiliate Program and otherwise associated with your account, including your email address and other contact information and identification of your site, is at all times complete, accurate, and up-to-date. We may send notifications (if any), approvals (if any), and other communications relating to the Affiliate Program and this Affiliate Agreement to the email address then-currently associated with your account. You will be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current.
You will not issue any press release or make any other public communication with respect to this Affiliate Agreement or your participation in the Program without written permission from us. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to any charity or other cause), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Affiliate Agreement.
4. Trademark Protection: For purposes of this Agreement, the "Marks" mean and include the following: SwimOutlet.com The Web's Most Popular Swim Shop®, the associated logo, and any components or variations thereof. You understand and agree that:
- Spiraledge, Inc. is the sole and exclusive owner of the entire right, title and interest (including all accompanying goodwill) in and to the Marks. You have no right to use the Marks except as specifically granted in this Agreement.
- You shall make no use of any Mark except in the form and with the graphics authorized in advance by us.
- You shall not adopt or use any name, mark, logo, insignia or design that is, or is likely to be, confusingly similar to or could cause deception or mistake with respect to any of the Marks.
- You shall not attack the validity of any of the Marks or of our title to any of the Marks at any time, whether during or after the term of this Agreement.
- You shall not apply for (or aid or abet others to apply for) registrations in the United States or in any foreign country of any mark or design which includes the Marks (or any variations of them), alone or in combination.
- The goodwill resulting from your use of the Marks (as well as any variations of the Marks) shall inure to our benefit.
- Subject to the terms of this Affiliate Agreement and solely for the limited purposes of set forth in this Affiliate Agreement, directing end users to, the SwimOutlet.com website in connection with the Affiliate Program, we hereby grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to (a) copy and display the above referenced trademark and logo solely on your site; and (b) use only those of our trademarks and logos that we may make available to you as part of Affiliate Program solely on your site and in accordance with the Affiliate Agreement.
- The license set forth in this Section 4 will immediately and automatically terminate if at any time you do not timely comply with any obligation under this Affiliate Agreement, or otherwise upon termination of this Affiliate Agreement. In addition, we may terminate the license set forth in this Section 4 upon written notice to you. You will promptly remove from your site and delete or otherwise destroy all of the trademarks and logos with respect to which the license set forth in this Section 4 is terminated or as we may otherwise request from time to time.
- In connection with your participation in the Affiliate Program you will comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over you, including laws (federal, state, or otherwise) that govern marketing email (e.g., the CAN-SPAM Act of 2003).
5. Keywords and Domain Names: You shall not purchase or register domain names that include the Marks or any variations and misspellings of the Marks. Furthermore, you shall not purchase or bid on search engine keywords, AdWords, search terms, or other identifying terms (whether for use in a search engine, portal, sponsored advertising service or other search or referral service) that include the Marks, any components of the Marks, or any variations and misspellings of the Marks. By way of example, but not limitation, you shall not:
- Bid on or purchase any keyword string that includes a Mark, such as "SwimOutlet.com Swim gear", "SwimOutlet.com apparel", etc...
- Bid on or purchase a search term containing a variation of a Mark, such as "Swim Outlet", "Swim-outlet", "www.SwimOutlet", "ww.SwimOutlet.com", "www,SwimOutlet.com", "Swimulet", etc.
- Bid on or purchase a domain name that includes a Mark or a misspelled variation of a Mark, such as "yoogaoutlet.com", "yoggaoutlet.com", "Swimoutletproducts.com", etc.
6. Tracking Tags: If you have a website, we will issue tracking tags and similar code to your system ("Assets"). The Assets help us track the commissions owed you and also provide us with information that is vital to the success of the Affiliate Program. You agree to use the Assets as instructed and not to corrupt, modify or disable any of the Assets.
7. Indemnification: You agree to indemnify, defend and hold us (and our officers, directors, employees and agents) harmless from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from your actions.
8. Termination: Either party may terminate this Agreement at any time and for any reason or no reason.
9. Discounts, Terms of Sale, and Warranties: You understand and agree that you are not authorized to offer any discounts, vary our terms of sale, or make any representations or warranties about the products that we sell.
10. Prohibited Content: You agree, while you participate in the SwimOutlet.com Affiliate Program, not to promote or distribute (whether by means of a website or otherwise) any content that is libelous, defamatory, obscene, pornographic, abusive, violent, bigoted, hate-oriented, illegal, or that offers or promotes any illegal good(s) or service(s).
11. Prohibition on Coupon Code/Discount Promoters: We do not permit any promoters of coupons or other discounts (including, but not limited to, those who operate over the internet) to join our affiliate program. No commissions shall be payable to any such parties.
12. Prohibition on Search Engine Advertising: You agree, while you participate in the SwimOutlet.com Affiliate Program, not to promote our products by purchasing "pay per click" or other advertising on internet search engines (including, but not limited to, Google® and Yahoo®). By way of example (but not of limitation), you specifically agree not to link your unique SwimOutlet.com URL to any internet address that is promoted by means of paid advertising to any internet search engine. No commissions shall be payable on account of any sales generated in violation of this provision.
13. Independent Contractor Relationship: You enter into this Agreement as, and shall continue to be, an independent contractor. Under no circumstances may you look to us as your employer, nor as a partner or agent. You shall not be entitled to the benefits, if any, that may be accorded to our employees, including (but not limited to) worker's compensation, disability insurance, retirement program contributions, medical or dental insurance, overtime, travel expenses, per diem expenses, vacation, or sick pay. You have no authority to (a) act on our behalf, or (b) make or accept any offers or representations on our or our affiliates’ behalf. You agree to comply with all applicable laws and regulations that apply to the referral of customers to us. You agree to pay all taxes attributable to the commissions paid to you by us. You also agree to complete IRS Form W-9 and submit it to us at the following email address: affiliate@Swimoutlet.com.
14. Dispute Resolution By Binding Arbitration And Class Action Waiver; Choice Of Law: We encourage you to contact our Customer Service department if you have concerns or complaints about SwimOutlet.com. Generally, customer complaints can be satisfactorily resolved in this way. If we cannot resolve your concerns informally, disputes between us shall be resolved pursuant to this Section 14.
The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction.
In the event that you are able to demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to costs of litigation, SwimOutlet.com will pay as much of your arbitration filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation. SwimOutlet.com also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration. However, SwimOutlet.com will not pay your share of the arbitration fees if the arbitrator finds that either your claim or the relief sought is frivolous or brought for an improper purpose, as measured by the standards of Federal Rule of Civil Procedure 11(b).
YOU AND SWIMOUTLET.COM AGREE THAT ANY CLAIMS BROUGHT BY YOU OR SWIMOUTLET.COM WILL BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND WILL NOT BE BROUGHT AS A CLASS, REPRESENTATIVE, COLLECTIVE OR PRIVATE ATTORNEY GENERAL ACTION. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class, representative, or private attorney general proceeding. You and SwimOutlet.com agree to seek only such individual relief—whether in the form of individual damages, an individualized injunction, or other non-monetary individual relief—as is necessary to resolve any individual injury that either you or SwimOutlet.com have suffered or may suffer.
The requirement that claims be brought in binding arbitration only in an individual capacity and not as a representative, private attorney general, or class member (“Class Action Waiver”) is non-severable. If the Class Action Waiver is found to be unenforceable, then the entirety of this arbitration provision shall be null and void, with the exception of the next sentence.
In the event the Class Action Waiver is found to be unenforceable, or in the event the agreement to arbitrate is found to not apply to a dispute, that such action between you and SwimOutlet.com shall proceed in the federal or state courts located in Santa Clara County, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
15. Interpretation: Unless the context clearly requires otherwise, all references in this Agreement to the plural will include the singular, and all references to the singular will include the plural; all references to gender will include the masculine, feminine, and neuter genders; the words "shall," "will," or "agrees" are mandatory, and the word "may" is permissive; the word "or" is not exclusive; and the words "includes" and "including" are not limiting. Headings are provided for convenience only and shall not be considered in interpreting this agreement. If any provision of this Agreement is found to be invalid or unenforceable, either in its entirety or by virtue of its scope or application to given circumstances, that provision shall be deemed modified to the minimum extent necessary to render the same valid or as not applicable to the given circumstances, or shall be excised, as the situation may require. All terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms and conditions to give them such effect. We may assign our rights and duties under this Agreement in our sole discretion. You may not assign your rights or duties under this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, legal representatives, beneficiaries, successors, and permitted assigns. You agree that, except as otherwise expressly provided herein, there shall be no third party beneficiaries to this Agreement.
16. Modification and Termination: You may withdraw from the Affiliate Program at any time and for any reason. We may amend or terminate this Agreement at any time, with or without notice, and for any reason. Any amendment shall become effective when posted on our website. By participating in the Affiliate Program after an amendment has become effective, you agree to the terms and conditions of the amendment. If you do not agree to the terms of an amendment, you must withdraw from the Affiliate Program.
We may modify any of the terms and conditions contained in this Affiliate Agreement at any time and in our sole discretion by posting a change notice, revised agreement, or or by sending notice of such modification to you by email to the email address then-currently associated with your account (any such change by email will be effective on the date specified in such email and will in no event be less than two business days after the date the email is sent). IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AFFILIATE AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF ANY MODIFICATION (E.G., THE DATE OF OUR POSTING OF A CHANGE NOTICE, REVISED AFFILIATE AGREEMENT OR THE DATE SPECIFIED IN ANY EMAIL TO YOU REGARDING SUCH MODIFICATION) WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
17. Limitation of Liability: WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS AFFILIATE AGREEMENT OR THE AFFILIATE PROGRAM, THE SWIMOUTLET.COM WEBSITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS AFFILIATE AGREEMENT, THE AFFILIATE PROGRAM, THE SWIMOUTLET WEBSITE, WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AFFILIATE AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
19. Inapplicable Affiliate Locations: The Affiliate Program is not applicable for non-US residents or any location prohibited by law.