This SamsClub.com Operating Agreement for Affiliate Network, including all exhibits and attachments hereto and incorporated herein by reference (the "Agreement"), contains the complete terms and conditions that apply to a party's participation as an affiliate in the Affiliate Network of SamsClub.com (the "Program"). As used in this Agreement, "we", "us", or "SamsClub.com" means Sam’s West, Inc. (and its parent company and related entities), and "you" means the applicant party. "Site" means a World Wide Web site and, depending on the context, refers either to the SamsClub.com Site or to the portion of the SamsClub.com Site that you will link to using Qualifying Links as defined in Section 2 of this Agreement.
You may submit a completed Program application to begin the enrollment process ("Application"). Submission of your Application to the SamsClub.com Affiliate Program implies acceptance to the terms set forth in this Agreement. We will evaluate your Application and notify you of your acceptance or rejection. We may reject your Application if, in our sole discretion, we determine for any reason that your website is unsuitable for the Program.
Wal-Mart Stores, Inc., Wal-Mart.com USA, LLC and Sam’s West, Inc. associates, family members of associates, and suppliers are not eligible to enroll in the Program.
Unsuitable websites include, but are not limited to, those that:
In addition, SamsClub.com may, at its discretion, decline to accept, require adherence to an additional set of terms and conditions, or require the posting of specific copy for any website that (1) donates, directs or transfers any portion of their Referral Fees or affiliate benefits to any charitable website, education-related website, organization or program; or (2) provides rewards back to their members in the form of points or cash-back, or conduct other similar loyalty programs in connection with purchases made by members via their websites.
Regardless of your acceptance in the Program, we may terminate this Agreement for any reason, at any time.
The terms of our acceptance criteria are subject to change at any time without prior notice.
All decisions for acceptance into the Program will be made within our sole discretion.
If your Application is not accepted, you may reapply to the Program at any time; however, you should not and may not link to our Site unless you are approved for the Program.
As a member of the Affiliate Program, you grant SamsClub.com permission to distribute any email communication directly to you that SamsClub.com determines is necessary communication for you to receive in order to continue as a member of the Program, regardless of your choice to opt-out from certain communication.
Upon acceptance into the Program, we will make available to you Qualifying Links that are subject to the terms and conditions of this Agreement. A "Qualifying Link" is a link from a website to our Site using one of the Universal Record Locators ("URLs") or graphic links provided by SamsClub.com, The LinkShare Network or by other means selected by us for use in the Program. All Qualifying Links must link directly and exclusively to SamsClub.com. SamsClub.com must approve each and every website that links to our Site through a Qualifying Link. If you use a Qualifying Link to link a website to our Site without seeking explicit authorization, your continued use of that Qualifying Link shall be considered a breach of this Agreement. However, continued use of the Qualifying Link will nonetheless subject such websites to the Terms and Conditions of this Agreement.
The Qualifying Links will serve to identify you website as a member of the Program and will establish a link from a website to our Site. All Qualifying Links that you will use in the Program will be provided to you from The LinkShare Network or by other means selected by us. You also agree that you will display on the website containing the Qualifying Link only those logos, trade names, trademarks, graphic images and similar identifying material ("Licensed Materials") that are provided by us or by the LinkShare Network, and you will substitute such images with any new materials provided by us or the LinkShare Network from time to time throughout the term of this Agreement. A web widget that is pre-approved in writing by SamsClub.com for use on your website may be considered a Qualifying Link for purposes of this Agreement. Accordingly, web widgets are subject to all of the Terms and Conditions of this Agreement that apply to Qualifying Links.
Only valid Qualifying Links will be tracked for purposes of determining Referral Fees that you may be eligible to receive on sales of Qualifying Products (as defined below) generated through your participation in the Program.
Only Qualifying Links may be used to link a website to areas within our Site. You may not link directly to SamsClub.com without use of a Qualifying Link. You may post as many Qualifying Links to our Site as you like on a website, provided that you ensure that each website containing a Qualifying Link posted by you meets the terms of this Agreement, including without limitation, that such website does not fall into the "unsuitable website" category described in Section 1, does not fall into the "prohibitions" set forth in Section 3, and you take responsibility for all websites on which you post a Qualifying Link in accordance with Section 10. The position, prominence and nature of links on a website shall comply with any requirements specified in this Agreement but otherwise will be in your discretion.
You understand and acknowledge that this Agreement is made between you and Sam’s West, Inc. and is solely for the purpose of allowing you to link to the SamsClub.com Site.
As a condition to your acceptance and participation in the Program, you agree to the following prohibitions:
A. General Prohibitions.
You may NOT:
B. Prohibitions Regarding Use of Electronic Communications
Electronic Communication includes email messages, text messages, and any other form of non-verbal communication occurring without the use of physical mail. You may NOT do any of the following using Electronic Communication unless you first obtain in advance Sam’s Club's express written permission. Such requests must be made in writing and sent to Sam’s Club Digital Marketing, Attn: Affiliate Program Manager, 2101 SE Simple Savings Dr., Bentonville AR 72716-0745;. These prohibitions are in addition to, and not in place of, all prohibitions and restrictions that you are bound to under the LinkShare Affiliate Membership Agreement, as amended. You may not:
C. Prohibitions regarding use of Trademarks (as defined in Exhibit A)
In addition to the requirements and prohibitions regarding use of the Trademarks set forth in Exhibit A, and incorporated herein by reference, you may NOT:
In addition, you are bound to act in compliance with all applicable federal, state and local laws and regulations, including without limitation, the CAN-SPAM Act of 2003 ("CAN-SPAM") and the Children’s Online Privacy and Protection Act of 1998 ("COPPA"). You shall protect, defend, indemnify and hold harmless us and our parent and related entities from and against any claims, actions, liabilities, losses, damages, costs or expenses, including without limitation, attorneys' fees and costs of litigation, even if such claims are groundless, fraudulent or false, incurred by us or our parent or related entities arising out of any content or activity by you or on your website or resulting from or in connection with your violation of any of the terms or prohibitions contained in this Agreement or any law, rule or regulation, including without limitation, claims for violations of third party intellectual property rights, and rights of privacy, including but not limited to CAN-SPAM and COPPA.
We will be responsible for all aspects of order processing and fulfillment of orders placed by customers who follow your Qualifying Links to the SamsClub.com Site in accordance with applicable legal requirements. We reserve the right to reject orders that do not comply with any reasonable requirements that we periodically may establish. Among other things, we will prepare orders forms; process payments, cancellations, and returns; and handle customer service. Through the LinkShare Network, you have the ability to track sales made to customers who purchase products using your Qualifying Links and you can review reports summarizing this sales activity. To permit accurate tracking, reporting, and fee accrual, you must ensure that your Qualifying Links are properly formatted. The form, content, and frequency of the reports are limited to those reports and capabilities available through The LinkShare Network and may vary from time to time in our and/or The LinkShare Network's reasonable discretion. SamsClub.com is not responsible for any changes that The LinkShare Network's format, timing, or types of reports available to members of The LinkShare Network and SamsClub.com's Affiliates. SamsClub.com will not be responsible for improperly formatted links regardless of whether you have made amendments to the code or not. In addition, we are unable to track or provide credit for sales from customers that are referred to us with browsers that do not have their cookies setting enabled.
We will pay you Referral Fees on certain product sales to third parties generated from our Site only. For a product sale to generate a Referral Fee, the customer must
We will pay, to LinkShare for ultimate payment to you, Referral Fees on products that are actually purchased by a customer within three (3) days after the customer has initially entered our Site ("Referral Fee Time") as long as the customer reenters our Site directly during that time (and not through another affiliate link). We will not pay Referral Fees on any products are purchased on our Site when a customer has re-entered our Site (other than through a Qualifying Link from your website) after the Referral Fee Time, even if the customer previously followed a link from your website to our Site. Referral Fees will not be earned on products where a customer's purchase of the product derived from search results driven from free or natural search; this includes results containing Qualifying Links displayed in a search engine's free/non-paid, natural, or organic search results in response to a search query which sends customers directly to SamsClub.com without the customer first being sent to an affiliate site and the customer clicking on a link to arrive at SamsClub.com.
The following purchase types are not eligible to earn Referral Fees:
Customer Service invoice adjustments and reorders are also not eligible to earn Referral Fees. Products that are entitled to earn Referral Fees under the rules set forth above are hereinafter referred to as "Qualifying Products." We do not authorize the redistribution of any portion of commission for Membership Renewals or New Member Sign-ups to the consumer.
You will earn Referral Fees based on the sale price of Qualifying Products (as defined above), according to fee schedules to be established by us. "Sale price" means the sale price listed on our Site and excludes costs for shipping, handling, gift-wrapping, rebates, refunds, returns, chargebacks, cancellations and taxes. The current Referral Fee Schedule is available to you through the affiliate portal available to all members of the Program ("Affiliate Portal").
Because of the volume and breadth of items that we carry on our Site and our practice of continuing to add new items over time, certain items may not be listed in the Referral Fee database at the time purchases are made through your website. In addition, we reserve the absolute right and discretion to exclude items from our Referral Fee database (see e.g., purchases from Wal-mart and Walmart.com, Sam’s Club Pharmacy, “Click’n’Pull” items, Tires and/or any merchandise listed under the “Member Services” and “Auctions” category within www.SamsClub.com, Gift Cards, and Online Gift Cards). Therefore, you acknowledge and agree that we cannot and do not warrant or guarantee that you will be paid a referral fee on any item(s) or that all items eligible for a referral fee will be paid in accordance with the Referral Fee Rates listed on the Affiliate Portal. You acknowledge that in such circumstances, you will accept the Referral Fee Rates and payouts actually paid to you. We reserve the right, at our sole discretion, to change, modify, add or remove portions of this Referral Fee Schedule, at any time. If you have any questions concerning whether a certain item is eligible for a referral fee, please contact firstname.lastname@example.org.
Approximately 60 days following the end of each calendar month, you will receive a check for the Referral Fees earned on products that were shipped during that month, less any taxes that we or LinkShare are required by law to withhold from the final payment to you. If a customer returns a product that generated a Referral Fee, you will see a deduction for the corresponding Referral Fee from your next monthly payment; if there is no subsequent payment, you will receive an invoice for the Referral Fee payable within sixty (60) days of your receipt of the invoice. All determinations of Qualifying Links and whether a Referral Fee is payable will be made by The LinkShare Network and/or SamsClub.com and will be final and binding.
Customers who buy products through this Program will be deemed to be customers of SamsClub.com without affecting their status as your customer. Accordingly, all SamsClub.com rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers with respect to their transactions at SamsClub.com. We may change our policies and operating procedures at any time consistent with applicable laws. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. You may include current price information in your product descriptions only if such information is provided to you by SamsClub.com, provided that any price information must be accompanied with a statement on your website indicating to the user that in the event of any price difference between your website and SamsClub.com, the price listed on SamsClub.com will govern. We will use commercially reasonable efforts to present current and accurate information, but we cannot guarantee the availability or price of any particular product.
We grant you a limited, nonexclusive, nontransferable, revocable right to access our Site through the Qualifying Links solely in accordance with the terms of this Agreement and solely in connection with the Licensed Materials (as defined in Section 2), only as provided to you by us, through The LinkShare Network, or by other means selected by us, and solely for the purpose of identifying your website as a Program participant and to assist in generating the sale of SamsClub.com products.
You acknowledge that this Agreement does not provide you with any intellectual property rights in the Licensed Materials other than the limited rights contained herein. We reserve all of our rights in the Licensed Materials and of our other proprietary rights. You may not sublicense, assign or transfer any such licenses for the use of the Licensed Materials, and any attempt at such sublicense, assignment or transfer is void. We may terminate your license to use the Licensed Materials for any reason at any time in our sole and absolute discretion. You agree to follow our Trademark Requirements in Exhibit A, as those may change from time to time. We may revoke your license at any time by giving you written notice.
You will be solely responsible for the development, operation, and maintenance of your website and for all content that appears on your website. For example, you will be solely responsible for:
We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your website.
The term of this Agreement will begin upon our acceptance of your Application and will end when terminated by either party. You may terminate this Agreement at any time, with or without cause, by giving us (five) 5 days prior written notice of termination. We may terminate this Agreement immediately at any time, with or without cause, by giving you written notice of termination. Upon termination, all SamsClub.com related content and links shall be promptly removed from your website. You are only eligible to earn Referral Fees on sales of Qualifying Products occurring during the term, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. In the event overpayment is made by us, you agree to promptly remit such excess payment upon notification by us. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our Site. We will also make commercially reasonable efforts to notify you of such changes prior to or upon implementation. Modifications may include, for example, changes in the scope of available Referral Fees, Referral Fee Schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE AND/OR SENDING YOU THE CHANGE NOTICE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
You and we 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 website or otherwise, that reasonably would contradict anything in this Section.
You acknowledge that by entering into and performing its obligations under this Agreement, we do not assume and should not be exposed to the business and operational risks associated with your business, or any aspects of the operation or content of your website(s). Accordingly, in addition to any other indemnification obligations contained in this Agreement, you shall protect, defend, hold harmless and indemnify us and our parent or related entities from and against any and all claims, actions, liabilities, losses, costs and expenses, even if such claims are groundless, fraudulent or false (including court costs and reasonable attorneys' fees) incurred as a result of claims of customers or other third parties against us and our affiliates, licensors, suppliers, officers, directors, employees and agents arising from or connected with any of the content or activities of your website (including without limitation any activities or aspects thereof or commerce conducted thereon) or related business, or your misuse, unauthorized modification or unauthorized use of the services or materials provided by us hereunder.
We 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 we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total Referral Fees paid or payable to you under this Agreement.
We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a 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; however, we will make commercially reasonable efforts to correct errors or interruptions promptly.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT 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 PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATIONS, 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 Arkansas, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts having jurisdiction and venue in or for Benton County, Arkansas and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. 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 or agreement not to enforce your strict performance of any provision of this Agreement in a given instance will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
You shall not create, publish, distribute, make or permit any public announcement of this Agreement or the relationship contemplated hereunder, (including, but not limited to, any press release, client list, screen shot, advertisement or any promotional material) without first submitting such material to us and receiving our written approval, which we may withhold in our sole discretion.
Except as otherwise provided in this Agreement or with our prior written consent, you agree that all information including, without limitation, the terms of this Agreement, our business and financial information, our customer lists and purchase history, and our pricing and sales information, shall remain strictly confidential and shall not be utilized, 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 you or your affiliates. Notwithstanding the foregoing, you may deliver a copy of any such information (a) pursuant to a subpoena issued by any court or administrative agency, (b) to your accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process, upon written notification to Sam’s Club.
Violation of any of the terms or prohibitions contained in this Agreement may result in, among other things, (a) the immediate termination of this Agreement; (b) the withholding of Referral Fees due to you; or (c) the commencement of an action by Sam’s Club against you seeking, without limitation, injunctive relief, recovery of actual, statutory or punitive damages.
We have the right in our sole and absolute discretion to monitor your website at any time and from time to time to determine if you are in compliance with the terms of this Agreement, and you agree to provide us with unrestricted access to your website for such purpose.
These requirements apply to your use of Sam’s Club, SamsClub.com and other trademarks and service marks belonging to Sam’s West, Inc., Wal-Mart Stores, Inc. or other related entities (the "Trademarks") in content that has been approved by us.
We reserve the right in our sole discretion to modify these requirements at any time.
These requirements apply to your use of the Program as a Network. A "Network" is defined as any affiliate that operates one or more websites as sub-affiliates through one (1) Application to the Program.