This SwimOutlet.com Affiliate Program Agreement (the “Agreement”) contains the provisions upon which we offer you participation in the SwimOutlet.com Standard Affiliate Program and the Fundraising Affiliate Program (collectively, the “Affiliate Program”). The purpose of the Affiliate Program is to promote the sale of products offered on our Website.
Applications to join our Standard Affiliate Program are available for all swimming organizations, bloggers and other customers of SwimOutlet.com. Applications to join our Fundraising Affiliate Program are available for (i) all organizations who qualify under our Standard Affiliate Program, and (ii) swimming organizations who meet the additional requirements set forth in this Agreement
If you participate in the Affiliate Program you have accepted this Agreement and created a binding agreement between Spiraledge Inc. (“Spiraledge”) and you. Spiraledge does business as SwimOutlet.com. As used in this Agreement, "we" or “us” means Spiraledge, "you" means the participant in the Affiliate Program, and “Website” means www.swimoutlet.com. This Agreement supplements the SwimOutlet.com Terms of Use, and Privacy Policy.
1. Application for the Standard Affiliate Program
To apply for the Standard Affiliate Program, you must submit an application through the Affiliate Program Registration Page on our Website. Your application must be true and complete and you agree to keep your information updated. We will evaluate your application and let you know if you are accepted into the Affiliate Program. We may reject your application for any reason in our sole discretion. If we reject your application, you are welcome to reapply at any time for reconsideration. We may monitor your website to determine if you are in compliance with this Agreement.
2. Application for the Fundraising Affiliate Program
To be accepted into the Fundraising Affiliate Program you must:
a. Meet all of the requirements for acceptance into the Standard Affiliate Program.
b. You may be either a taxable or a tax-exempt non-profit organization.
c. Agree that all funds raised under the Fundraising Affiliate Program must be contributed to your organization either by direct deposit to your company bank account or by a store credit deposited to your team’s account.
d. If you are a tax-exempt organization, you must comply with all IRS requirements regarding the accounting of all fundraising proceeds and the reporting of fundraising proceeds to relevant federal and state taxing authorities. You must ensure that all fundraising proceeds are properly expended such that your organization will not lose its tax-exempt status.
e. If you are a tax-exempt organization, you agree that you will obtain competent tax advice regarding your compliance with all IRS requirements that govern your fundraising activities. You hereby confirm that we have not given you any tax or accounting advice regarding the Fundraising Affiliate Program.
f. Ensure that all advertisements regarding your Fundraising Affiliate Program are accurate and non-deceptive and clearly disclose that the amount of the purchase price above the retail price of the goods is fundraising proceeds and will not be paid to SwimOutlet.com.
g. Provide us with a copy of your IRS Tax ID number and a completed W-9.
h. If you have elected to receive a cash payment, you must provide us with your banking information so that we may make direct deposits of commissions into your bank account.
Please note that if you have not satisfied all of these requirements, then we will not pay you any commissions until you have done so. We will not pay any commissions that are more than one year old.
3. Tracking Referrals
We will assign you a unique SwimOutlet.com URL (www.swimoutlet.com/myswimteamname) 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 that is provided by us. You may use only current links or banners provided by us; unauthorized links or 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. You may only earn commissions by referring customers to SwimOutlet.com. We do not support affiliate drop shipping or external shopping cart systems.
4. Affiliate Program Commissions
a. The Standard Affiliate Program Commissions
If you are a member of the Standard Affiliate Program you may earn commissions on sales of products as described below:
Standard 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 3-5% 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 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.
Redemption of Commissions: Commissions may be redeemed for either cash (payable in United States dollars) or SwimOutlet.com store credit. If we pay you a commission that may be redeemed for a store credit, you may not change the credit that you received to a cash commission. However, if you have accrued unpaid store credit commissions, we will pay you a cash commission if you change your payment method before we pay your commission. If you wish to change your payment method, the change will go into effect at the beginning of the next calendar quarter after you give us notice of your change. After we pay you either a cash or store credit commission, it shall be deemed a final payment. Store credit commissions are valid for one year from issue date.
Tracking Commissions: You may track commissions and redeem them by logging onto your account: https://www.swimoutlet.com/pages/affiliate-store?myaccount_affiliate_Earnings.asp. In order to redeem cash, your account balance must be at least $15.00 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.
Products Ineligible for Commissions:
The following products are ineligible to receive commissions:
Team Administrative Purchases: Owners and administrators of team stores may not earn commissions on their purchases of any products.
Store Credits: Purchases with store credits are not eligible for commissions.
Other Products: Certain products are not eligible for commissions based on sale price or shipping fees.
b. The Fundraising Affiliate Program Commissions
If you are a member of the Fundraising Affiliate Program you may earn commissions on sales of products as described below:
We have designated a collection of products that you may sell through the Fundraising Affiliate Program. Each of these products will have a floor price. This means that you cannot offer the product for sale below the floor price. You may set your fundraising price at any price above the floor price, provided that it is not more than two times the floor price. The difference in the floor price and the fundraising price will be your fundraising proceeds. Here is an example:
1. Our floor price for Speedo swim googles is $20.00.
2. You may set your fundraising price for the googles at any price up to two times the floor price. For this example, let’s assume you set the price at $60. You must advertise the swim goods for $60 as part of your fundraising campaign.
3. When you sell the swim goggles for $60, we will deposit $40 into your company account.
4. The $40 will be designated as your affiliate commission.
5. Standards of Conduct
Please be courteous and polite when you are promoting the Affiliate Program and SwimOutlet.com. You are not eligible to enroll or maintain your membership in the Affiliate Program if your website does any of the following:
(a) contains sexually explicit content;
(b) contains violent or hateful speech;
(c) contains harassing, libelous or defamatory content;
(d) promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
(e) promotes or engages in illegal activities;
(f) is directed toward children under 13 years of age, as defined by the Children’s Online Privacy Protection Act;
(g) includes 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 violates our intellectual property rights.
You will ensure that the information in your application for membership in the Affiliate Program is complete, accurate, and up-to-date. We may send notifications relating to the Affiliate Program to the email address associated with your account. You will be deemed to have received all notifications that are sent to that email address, even if it is no longer current.
6. Our Trademark Rights
The defined term "Marks" means the following trademarks: “SwimOutlet.com The Web's Most Popular Swim Shop®”, “SwimOutlet”, the associated logos, and any components or variations thereof. 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 authorized 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. You shall not apply for registrations in the United States or in any foreign country of any mark or design which includes the Marks, alone or in combination. The goodwill resulting from your use of the Marks shall inure to our benefit.
You shall not purchase or register domain names that include the Marks or any variations and misspellings of the Marks. You may not alter graphics containing the Marks in any manner. For example, you may not change the proportion, color, or font of the Marks. You may not use the Marks to disparage our company, our products or services, or in a manner which may diminish or otherwise damage our goodwill in the Marks. You may not use or display any of our Marks in your profile on any social media site. You may not dilute the value of our trademarks, and/or products and services. You may not display the Marks in any manner that implies sponsorship or endorsement by us other than of your involvement in the Program. If we determine that you have violated any of the foregoing restrictions, we may withhold any commission otherwise payable to you and/or terminate this Agreement. If we are required to enforce any of the foregoing restrictions, you will be obligated to reimburse us for any attorneys' fees and expenses we may incur.
7. Additional Program Restrictions
You agree to the following restrictions:
(a) You must follow common search engine guidelines, such as: (a) your display URL must match the ultimate actual destination URL; (b) you may not frame our website as a landing page; and (c) you may not create "redirects" or "jump pages" that immediately direct to our website.
(b) You may not engage in any conduct that violates the CAN-SPAM Act of 2003, as amended, or any privacy or data protection law. You may not use illegal or unethical marketing methods or transmit spam.
(c) You may not enable any sales that are not in good faith, such as using any device, public coupon site, program, robot, Iframe, hidden frame or redirect.
(d) You may not use any device or technology that will block, alter, direct, redirect, substitute, insert, or otherwise intercept or interfere in any manner with any click through or other traffic-based transaction that originated from the website of any affiliate of ours with the result of reducing any compensation or other payment earned by or owing to such affiliate.
(e) You may not issue or post any press release or other broad-based communication regarding your participation in the Affiliate Program unless you receive our prior written consent. You may promote your website via mailings to recipients who are customers or subscribers to your website's services, provided that the recipients have the option to remove themselves from future mailings and that you otherwise comply with all applicable laws of your jurisdiction. Further, you may promote your website via newsgroup postings to newsgroups that welcome commercial messages.
(f) You may promote your affiliate store on social media platforms provided that you use the correct and appropriate name and brand likeness. This includes the following:
(1) Correct spelling and capitalization of our brand's name: swimoutlet.com;
(2) When tagging us in social media posts, you must utilize our correct handle which is: @swimoutlet.com; and
(3) You are not required to include our hashtags but if you do, ensure that you use the correct form: #swimoutlet.com.
(g) We do not permit any promoters of coupons or other discounts to join the Affiliate Program. No commissions shall be payable to any such parties. The Affiliate Program is void where prohibited.
(h) You will not promote any products or services to children under the age of thirteen.
(i) You will not represent that we support, sponsor, endorse, or contribute to any charity or other cause, or that we have any relationship or affiliation between us and you except through the Affiliate Program.
(j) You may not use any illegal or unethical marketing methods, including transmission of spam.
If we determine that you have violated any of the foregoing restrictions, we may withhold any commission otherwise payable to you and/or terminate this Agreement. If we are required to enforce any of the foregoing restrictions, you will be obligated to reimburse us for any attorneys' fees or expenses that we may incur.
8. 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 to you and will also provide us with information that is important 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.
9. Indemnification
You hereby agree to indemnify and hold harmless Spiraledge and its subsidiaries and affiliates, and their directors, officers, employees, agents, and shareholders against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (collectively, the "Losses") insofar as such Losses arise out of or are based on (a) any claim that your use of any Third Party Trademark (as defined in Section 10) or other intellectual property infringes on the intellectual property rights belonging to any third party, (b) any breach of a representation, warranty, covenant or agreement made by you in this Agreement, or (c) any claim related to your website.
10. No Infringement of Third Party Trademarks
You may not use any trademarks, logos or designs belonging to third parties (“Third Party Trademarks”) on any merchandise that you may create or in connection with any marketing collateral unless you have a valid license or consent for such use from such third parties. For purposes of clarification, this specifically applies to Third Party Trademarks belonging to any colleges or universities.
11. Discounts, Terms of Sale, and Warranties
You understand and agree that you may not offer any discounts, vary our terms of sale, or make any representations or warranties about the products that we sell.
12. Prohibition on Coupon Code/Discount Promoters
We do not permit any promoters of coupons or other discounts to join our Affiliate Program. No commissions shall be payable to any such parties.
13. Prohibition on Search Engine Advertising
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. You agree not to promote our products by purchasing "pay per click" or other advertising on internet search engines. By way of example 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.
14. Independent Contractor Relationship
You are an independent contractor. Under no circumstances may you look to us as your employer, nor as a partner or agent. You are not be entitled to any benefits that may be provided to our employees. 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.
15. 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 about SwimOutlet.com. or our Affiliate Program. Generally, customer complaints can be satisfactorily resolved in this way. If we cannot resolve your concerns, they will be resolved pursuant to this Section.
You and SwimOutlet.com agree to arbitrate all disputes and claims (including the interpretation and scope of this clause, and the arbitrability of the dispute or claim) between us including, but not limited to, all claims arising out of or relating to any aspect of our relationship, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, that arose either before or during this or any prior Agreement, or that may arise after termination of this Agreement.
Arbitration is more informal than a lawsuit. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to limited review by courts. Under this Agreement, arbitrators can award the same individual relief affecting individual parties that a court can award, including damages and an award of attorneys’ fees, if the applicable law allows. BY AGREEING TO RESOLVE DISPUTES THROUGH ARBITRATION, YOU AND SWIMOUTLET.COM AGREE TO EACH UNCONDITIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY OR COURT. Instead of arbitration, either party may bring an individual action in a small claims court for disputes or claims that are within the scope of the small claims court’s authority.
The Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes, administered by JAMS pursuant to JAMS' Streamlined Arbitration Rules and Procedures, as modified by this Agreement, and unless otherwise agreed upon by the parties in writing. For more information on JAMS, its rules and procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.org. Arbitrations will proceed at a location that the arbitrator selects within 100 miles of your primary residence unless you and SwimOutlet.com agree otherwise. 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. Notwithstanding any provision in this Agreement to the contrary, we agree that if SwimOutlet.com makes any change to this arbitration provision, such change will not be applicable to any dispute to which you had previously provided notice to SwimOutlet.com. If you do not want to be bound to this agreement to arbitrate, you must opt out of it within 30 days of it first becoming applicable to you (i.e., within 30 days of you first agreeing to a version of this Agreement containing an arbitration agreement). To opt out of this agreement to arbitrate, you must send a letter or postcard to SwimOutlet.com’s headquarters, to the attention of the “Legal Department” and state that you do not want to be bound by this arbitration agreement. SwimOutlet.com’s address is 2105 S. Bascom Ave, Ste 160, Campbell, CA 95008.
16. Miscellaneous
You hereby represent and warrant to us that (i) this Agreement is a legal, valid, and binding obligation, enforceable against you in accordance with its terms; and (ii) any information you provide to us in connection with your participation in the Affiliate Program will be true and correct. This Agreement will be governed by the laws of the State of California. Any action relating to this Agreement must be brought in the federal or state courts located in Santa Clara County, California, and you irrevocably consent to the jurisdiction of such courts. The Affiliate Program is not applicable for non-US residents or any location prohibited by law.
17. Modification and Termination
Either party may terminate this Agreement at any time. We may amend this Agreement at any time. We may amend any provision of this Agreement at any time by posting a notice or a new agreement on our Website. We may also announce amendments to the terms of this Agreement by email. 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 will constitute your acceptance of the change.
18. 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 AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.