Payless.com Affiliate Program Operating Agreement

Affiliate Operating Agreement

Version 002 Effective Date 04/30/2001

1. Enrollment in the Affiliate Program

To begin the enrollment process, you will need to review the terms of this agreement and indicate your acceptance of these terms by clicking "I Agree" at the bottom of the page. Once you have agreed to the terms, you will be linked to our Affiliate Application. After you submit a complete Affiliate Application via our site, we will evaluate your application and notify you of your acceptance or rejection in a timely manner. 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, sexually explicit, harassing, or racially, ethically, or otherwise objectionable, as demonstrated by the following examples:

  • sexually explicit, lewd, pornographic or obscene content (whether text or graphics);
  • speech or images that are offensive, profane, hateful, threatening, harmful, fraudulent, defamatory, libelous, subversive, harassing or discriminatory (whether based on race, nationality, ethnicity, creed, religion, gender, sexual orientation, age, disability or otherwise);
  • graphic violence (which may include certain types of game sites);
  • content related to liquor, tobacco, firearms, drugs, gambling, crime or death;
  • politically sensitive or controversial issues (e.g. abortion, capital punishment) or other political content (e.g. lobbyists, political campaigns);
  • any unlawful behavior or conduct;
  • content which infringes or otherwise violates any copyright, trademark, or other intellectual property rights;
  • content which includes "Payless," "Payless ShoeSource," "Payless ShoeSource, Inc.," "ShoeSource," "Payless Kids," "Parade" or "Payless.com" or variations or misspellings thereof, in their domain names or in any metatags or other hidden text; or
  • content which violates our "Privacy Policy" available at the http://www.payless.com site, as may be modified from time to time by us at our sole discretion.

2. Promotion of Our Affiliate Relationship

If you qualify and agree to participate as an affiliate site, we will make available to you a variety of graphic and textual links (each of these links referred to herein as "Links" or, individually, as a "Link") which, subject to the terms and conditions hereof, you may display on relevant areas of your site. These Links are available through the http://reporting.net and http://payless.reporting.net sites. The Links will serve to identify your site as a member of our Affiliate Program and will establish a Link from your site to ours.

3. Setting Up Links

In using the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. To permit accurate tracking and reporting, you will be responsible for ensuring that the Links between our site and yours are properly formatted. You also agree that you will display on your site only those graphic or textual images (indicating a Link) provided by us, and you will substitute such images with any new images provided by us from time to time throughout the term of this Agreement. You shall display such graphic and/or textual images prominently in relevant sections of your site subject to any and all limitations herein and with our consent, which we may withhold at our sole discretion. Any information with respect to us that is that is going to be displayed on your site must be provided by us or approved by us in writing in advance of any display. A Link may only be modified or expanded with our consent. Each Link connecting users of your site to our site will in no way alter the look, feel, or functionality of our site. Without limiting the generality of the foregoing, you are expressly prohibited from framing our site in any manner, including without limitation causing your site's tool bar to appear on our site. We have the right based on our sole discretion to monitor your site at any time to determine if you are in compliance with the terms of this Agreement. If you are not in compliance we may terminate this Agreement immediately.

4. Our Responsibilities

We will be responsible for providing all information necessary to allow you to make appropriate Links from your site to our site, however, all Links must be approved in writing by us. 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 Affiliate Sites regarding sales statistics. We reserve the right to reject orders. We will be responsible for order entry, payment processing, shipping, cancellations, returns, and customer service related to our site. We will not be liable for any breach of this Agreement or for any delay or failure of performance resulting from any one or more of the following: (a) an occurrence beyond our commercially reasonable control; (b) acts of God, fires, flood, or weather; (c) acts of public enemies; (d) acts of any governmental authorities; (e) acts of war, rebellion, sabotage, riots, civil disorders or explosions; (f) strikes or labor disputes; (g) Internet reliability; and (h) unavoidable casualties.

5. Obligations Regarding Your Site

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, all Payless.com product 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. We disclaim all liability for all such matters. You hereby agree that your site will not, in any way, copy or resemble the look and feel of our site nor will you do anything to create the impression that your site is our site or a part of our site, including without limitation, framing our site in any manner. You also hereby agree that your site will not contain any content of our site or any materials which are proprietary to Payless.com, except (a) with our prior written permission or (b) the materials were obtained by you via the http://reporting.net or http://payless.reporting.net sites in accordance with the provisions hereof or the policies or instructions thereon.

6. Commission Determination

Sales of Payless.com products will qualify for a commission when all of the following conditions are met: (a) products are sold by us; (b) products are purchased by users linking to our site from your site through a Link; (c) customer has not prevented the tracking of the order by not accepting "cookies"; (d) products are shipped by us; and (e) we have received full payment (collectively "Qualifying Purchases"). Commissions will be based on the aggregate amount actually paid to us for Qualifying Purchases, excluding amounts collected by us for sales, use or other taxes; duties; shipping and handling; credit card fraud and bad debt; and credits for returned goods (hereinafter "Net Sales"). All available items on our site will be included in the computation of Net Sales, regardless of whether the item is a fast delivery or special order item. Commission rates are as follows: Commission rate will be equal to 5% of Net Sales for Qualifying Purchases. Commissions will be tracked by "cookies" linked to customer’s Internet browser, which shall expire thirty (30) days after the customer’s initial visit. The commissions paid under this Agreement are for use by you only and may not be transferred or in any manner passed on to any third party unless expressly authorized by us in writing. You will be given a password and have the ability to enter a password-protected site to receive your sales statistics on a daily basis.

7. Commission Payment

When the total commissions due to you for Qualifying Purchases exceed $50, we will send a commission check for the applicable amount. Commission checks will be sent approximately thirty (30) days after the end of each month. If the balance of your account is less than $50, we will roll over the balance to the next month. We may offset any amount you owe against any payments owed to you.

8. Policies and Pricing

Customers purchasing Payless.com products through the Affiliate Program will be deemed our customers. All rules, policies, terms, and conditions and operating procedures concerning customer orders, customer service, and Payless.com product sales will apply to those customers. We reserve the right, in our sole discretion, to reject orders that do not comply with certain requirements, which we may establish from time to time. All aspects of order processing and fulfillment, including order entry, customer service, shipping, cancellations, returns and payment processing will be our responsibility. We may change our policies and operating procedures, including pricing, at any time. We will determine, in our sole discretion, the prices to be charged for Payless.com products sold under the Affiliate Program in accordance with our own pricing policies. You may not include price information on your site unless pricing information is made available on links we provide. Prices and availability of Payless.com products may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.

9. Customer and Sales Information

We will own all right, title, and interest (including all intellectual property rights) in and to all information that is created or collected in connection with this Agreement, including, without limitation, (a) any contact information collected from any customer who enters the Payless.com site from a link from your site ("Affiliate Customers") and (b) any information regarding click-through rates or product purchases by Affiliate Customers ("Sales Information"). Subject to the terms and conditions of this Agreement, we grant you a limited worldwide, non-exclusive paid-up license to use the Sales Information only to the extent necessary to fulfill your obligations under this Agreement. You agree not to disclose any Sales Information or Affiliate Customer contact information to any third party without our prior written approval, which we may withhold at our sole discretion. You agree not to send Affiliate Customers e-mail communications promoting your site as an affiliate of us or otherwise unless granted previous approval by us.

10. Confidentiality

We may disclose to you certain information as a result of your participation as part of the Affiliate Program, which information we consider to be confidential (herein referred to as "Confidential Information") which shall include, without limitation, Sales Information, business and financial information, product designs, customer and vendor lists, and pricing and sales information, concerning us, you, Affiliate Customers, or any of our affiliates. Confidential Information shall remain strictly confidential and secret and shall not be used, directly or indirectly, by you for your 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 affiliates. Notwithstanding the foregoing, you are hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (b) to your accountants, attorney, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process.

11. Limited Licenses and Use of the Payless.com Logos and Trademarks

(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) to use our marks and logos only in the forms that we provide (the "Marks") (or such other images or messages for which we granted prior express written permission, hereafter "Pre-approved Images") solely in connection with such Links and only as permitted herein. You may not (i) alter, modify, copy, distribute, reverse engineer, create derivative works, or change the Marks or Pre-approved Images or message in any way; (ii) cause or do any act or thing that would impair our rights in the Marks or Pre-Approved Images; or (iii) damage the reputation for quality inherent in the Marks. You are only entitled to use the Marks to the extent that you are a member in good standing of the Affiliate Program. We reserve all rights in the Marks and Pre-Approved Images and all other intellectual property rights.

(b) You cannot make any use of any Marks or any Pre-Approved Images for purposes other than selling Payless.com products, without first submitting a sample to us and obtaining our prior written consent, which we may withhold at our sole discretion. Further, you acknowledge: (i) our ownership of the Marks and Pre-Approved Images; (ii) your use of Marks or Pre-Approved Images does not convey to you any right, title or interest in or to the Marks or Pre-Approved Images; (iii) you may not contest the Marks, or register or attempt to register in any jurisdiction any Mark or any confusingly similar mark or trade name; (iv) you will not in any way dispute, or do anything to impair the validity of our rights in our Marks, our ownership and right to use and control the use of our Marks; (v) you agree not to use the Marks in any manner that is disparaging or that otherwise portrays us in a negative light; (vi) you agree to identify the Marks by including appropriate symbols and notices reasonably requested by us; (vii) you may not obtain or use the Marks except as provided in this Section 11; (viii) your use of the Marks, including all goodwill associated with such use, shall inure solely to us; and (ix) you may not sublicense, assign or transfer any rights granted hereunder, and any attempt at such sublicense, assign or transfer is void. We may revoke your license at any time immediately by giving you notice. This license shall otherwise terminate upon the effective date of the expiration or termination of this Agreement.

(c) You grant us a non-exclusive license to use your names, titles, and logos ("Affiliate Marks") to advertise, market, promote, or publicize, in any manner, the Agreement, the transactions contemplated herein, or our rights hereunder; provided however, that we shall not be required to do so. This license shall terminate upon the effective date of the expiration or termination of this Agreement.

12. Publicity

You may not create, publish, distribute, or permit or transmit any written material or electronic communications that make reference to us or uses our name or any of our Marks without first submitting such material to us and receiving our written consent, which we may withhold at our sole discretion.

13. Term Of Agreement

The term of this Agreement will begin upon our acceptance of your Affiliate Program application and will end when terminated by either of us. Either party may terminate this Agreement at any time and for any reason, with or without cause, by giving the other party written or electronic notice of termination. You are only eligible to earn commissions on sales occurring during the term of this Agreement, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned, or otherwise fail to be a Qualifying Purchase. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. Upon termination of this Agreement, (a) all licenses hereunder shall terminate; (b) you shall remove any Links, Marks, Pre-Approved Images and all other forms of our intellectual property or brand features from your site, within one (1) hour of receipt of notice; (c) we shall promptly remove any of your logos, marks, and brand features from our site, and (d) Sections 5, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 22 and 23 will survive such termination.

14. Relationship of Parties

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. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this section.

15. Representations and Warranties

You hereby represent and warrant to us as follows:

(a) You will use the Links only as authorized hereunder;

(b) 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;

(c) 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 (i) any provision of law, rule, or regulation to which you are subject, (ii) any provision of your by-laws or certificate of incorporation, or (iii) any agreement or other instrument applicable to you or binding upon your assets or properties;

(d)You are the sole and exclusive owner of the Affiliate Marks and have the right and power to grant us the license to use your trademarks in the manner contemplated herein, and such grant does not and will 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;

(e) 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;

(f) To the best of your knowledge there is no pending or 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 Affiliate Marks. To the best of your knowledge, there is no basis for any such claim, action, or proceeding;

(g) You are and will continue to be in compliance with all U.S. Privacy laws recognized under U.S., Federal, State, and local law and your site is in compliance with all standards, provisions, and stipulations of all pertinent Federal, State, or local laws, rules, regulations and ordinances;

(h) You are an adult of at least 18 years of age;

(i) During the term of this Agreement, you will not include in your site content that is, in our opinion, unsuitable as described in Section 1 of this Agreement or otherwise objectionable;

(j) During the term of this Agreement, you will not provide any material to us which contains viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information; and

(k) Your site is hosted within the confines of the continental United States, Alaska or Hawaii.

16. Disclaimers

WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE AFFILIATE PROGRAM OR ANY PAYLESS.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 WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. WE ALSO MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE AMOUNT OF COMMISSIONS TO BE PAID TO YOU, OR AS TO ANY ASSET OR PROFITABILITY, IF ANY, OR OTHER BENEFIT YOU MAY DERIVE FROM PARTICIPATION IN THE AFFILIATE PROGRAM.

17. Equitable Relief

You agree that your violation of any of Sections 3, 9, 10, 11, 12 and 13 will cause irreparable harm to us and that a remedy at law may be inadequate. Therefore, in addition to any and all remedies available at law, we will be entitled to seek an injunction or other equitable remedies in all proceedings to enforce any of the terms, rights or obligations under this Agreement, in the event of any threatened or actual violation of any or all of the provisions hereof.

18. Indemnification

You hereby agree to defend, indemnify and hold harmless us and our 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, judgements, settlements, costs, expenses and fees (including reasonable outside attorneys' fees, and where allowable, in-house attorney’s 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 (a) any claim that our use of the Affiliate Marks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (b) any failure or breach of any representation, warranty, covenant, or agreement made by you herein, (c) any misuse of our name or Marks, (d) any claim related to your site, including without limitation, it’s development, operation, maintenance and content, or (e) any claim for assessment of any taxes, including without limitation, foreign, U.S. federal, state, or local withholding taxes, FICA, FUTA, Social Security, Medicare, SUI, and other such taxes and deductions with respect to any earnings or payments made hereunder.

19. Limitation of Liability

WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES; ANY LOSS OF REVENUE, PROFITS, BUSINESS OPPORTUNITY, BUSINESS REPUTATION OR OTHER ECONOMIC LOSS; OR LOSS OF 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 WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT. All claims made hereunder by you against us shall be made within one hundred and twenty (120) days of the act or omission, which forms the basis of such claims.

20. Modification

We reserve the right to modify any terms and conditions contained in this Agreement at any time at our sole discretion. You will be notified by a change notice being posted on http://reporting.net and http://payless.reporting.net sites, for at least thirty (30) days after the change or modification. Modifications may include, but are not limited to, changes of the scope of available commissions, commission schedules, payment procedures, and affiliate network rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE AND SOLE REMEDY 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 WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.

21. Independent Investigation

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, HAVE HAD AN OPPORTUNITY TO CONSULT WITH YOUR OWN LEGAL ADVISORS, IF YOU SO DESIRED, AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE 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 AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

22. Affiliate Program Manager

We have hired Be Free, Inc. ("Be Free") to manage and administer the Affiliate Program. Be Free will (a) serve as the data interchange between you and us; (b) be responsible for collecting applications; (c) track your performance in the Affiliate Program; (d) operate the reporting site; and (e) providing support services. Be Free’s role in the Affiliate Program means that they will have access to a great deal of information about you, including the personal information contained in the application and the performance data associated with your participation in the Affiliate Program. All personal information supplied by you in connection with the Affiliate Program shall be used by Be Free in a manner that is consistent with its Privacy Policy, which is available for your review at the http://www.befree.com site. By submitting your application you consent to Be Free’s role in the Affiliate Program, including the collection and use of the information they gather in order to manage and administrate the Affiliate Program.

23. FlexTrack

FlexTrack is an option in the Be Free BFAST system and is designed to help us and you track the transactions of large numbers of users and manage fee payment information. Depending on how you implement it, FlexTrack may allow access to more detailed information about transactions than BFAST's current reporting functions provide. If you are provided access, in our sole discretion, to FlexTrack anytime during the term of this Agreement, you agree: (a) not to use any of the information provided via FlexTrack technology to identify unique individual customer activity conducted by us, nor to allow others to use the technology to identify such unique customer activity, nor to access such unique customer activity or data. You further agree not to transfer, reuse, release, or otherwise transfer any data generated by FlexTrack; (b) you are solely responsible for technical implementation of the bfinfo parameter and for maintaining proper link syntax; and (c) during the process of implementation, you will conduct appropriate testing and verification of bfinfo tracking including link creation, click-through, ordering, and reporting as necessary to insure correct and dependable operation of the FlexTrack tracking feature.

24. Governing Law

This Agreement shall be governed and controlled by the laws of the State of Kansas. Any legal action or proceeding with respect to this Agreement or any other documents or instruments executed in connection herewith, shall be brought in the courts of the State of Kansas or the United States for the District of Kansas, and by the execution and delivery of this Agreement, both parties hereto consent to the exclusive jurisdiction of those courts. You irrevocably waive any objection, including any objection to the laying of venue or based upon the grounds of forum non conveniens, which you may now or hereafter have to the bringing of any action or proceeding in such jurisdiction in respect of this Agreement or any documents or instruments relating hereto. You also waive personal service of any summons, complaint or other process. Such process may be made by certified mail or by any other means permitted by Kansas state law. You may not assign this agreement, by operation of law or otherwise, without our prior written consent, however, we shall have the right to assign our rights hereunder to any of our related or affiliated entities. Subject to that restriction, this Agreement will 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 will not constitute a waiver of our right or subsequently enforce such a provision or any other provision of this Agreement. All provisions contained in this Agreement are severable, and in the event any of them shall be held to be invalid by any competent court, this Agreement shall be interpreted as if such invalid provisions were not contained in the Agreement. The provisions of this Agreement constitute the entire agreement between the parties with respect to the subject matter of this Agreement. In any action to enforce or interpret any provision of this Agreement, the prevailing party will be entitled to recover its attorney’s fees and costs.

Click to join the Payless.com Affiliate Program.