This Affiliate Participation Agreement contains the terms and conditions that apply to your participation as a member of the affiliate program (the "Affiliate Program") for www.SportsKids.com (the "SportsKids Web Site"). This Affiliate Program is administered through SportsKids.com. ("SportsKids"). In this Agreement you are sometimes referred to as "you", "your" or "Affiliate".

THIS IS A LEGALLY BINDING AGREEMENT. BY JOINING THIS AFFILIATE PROGRAM AND RECEIVING AND USING LINKS TO THE MERCHANT WEB SITE, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS SET FORTH HEREIN, DO NOT JOIN THIS AFFILIATE PROGRAM.

1. Participation; Eligibility. Only Web sites with general or United States based domain name extensions (e.g. .com, .net, .org, .us, etc.) are eligible for participation in this Affiliate Program. You must be at least 18 years of age to join this Affiliate Program. In order to participate in this Affiliate Program you must complete an application that is accessible through this Web Site. You will be notified if your application has been accepted or rejected. We reserve the right to reject any application in our sole discretion. If we reject your application, you may reapply at anytime. By submitting an application to participate in this Affiliate Program, you represent, warrant, covenant and agree that (i) all information that you provide to us in connection with your participant application and/or in connection with your participation in this Affiliate Program is true, complete and accurate, (ii) you have all necessary rights and authority to enter into this Agreement and perform your obligations hereunder, (iii) this Agreement will constitute a legal, binding and enforceable agreement against you in accordance with the terms and conditions herein, and (iv) your execution and performance hereunder will not conflict with or result in a breach or violation of any other agreement, arrangement or understanding to which you are bound.
2. Suitability of Affiliate Web Site(s). Any Web site(s) that (a) infringes on any person's or entity's intellectual property, publicity, privacy or other rights, (b) violates any law, rule or regulation, (c) contains any content that is threatening, defamatory, obscene, harmful to minors, or contains nudity, pornography or sexually explicit materials, (d) contains any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information, (e) is materially false, inaccurate, or misleading; (f) promotes violence, (g) promotes discrimination based upon gender, race, sex, religion, nationality, disability, sexual orientation or age, (h) uses or promotes the use of bulk email or spam, or (i) promotes any illegal or immoral activity or information, is not suitable for, and may not participate in, this Affiliate Program. You represent, warrant, covenant and agree that neither your participating Web site(s) nor any content or technology contained thereon will, at anytime during the period that you are an affiliate in this Affiliate Program, violate any of the foregoing Web site suitability restrictions. In the event that we believe that you have violated any of the foregoing Web site suitability restrictions we may, in addition to all other rights and remedies that we may have, terminate this Agreement and your participation in this Affiliate Program without notice.
3. Right to Use Merchant Content. Subject to the terms and conditions herein, we hereby grant to you, during the term hereof, a limited, non-exclusive, non-transferable, revocable, non-sublicenseable, non-assignable right to (i) access the Merchant Web Site through links provided by us from time to time, and (ii) use and display the Merchant Content (as defined below) that we may make available to you from time to time solely on eligible Web sites and solely in connection with your participation in this Affiliate Program. Except for the right to use the Merchant Content provided to you by us hereunder, we are not granting you any rights in, and you represent, warrant, covenant and agree that you will not use, in any manner, any trademarks, service marks, trade names, logos, banners, buttons, graphics, digital images, text, or other content or materials owned or controlled by us or our applicable retail partners, vendors or other contracting parties (the "Merchant Partners"). Upon termination of this Agreement, for any reason, you shall immediately cease using, displaying or otherwise maintaining any interest in the Merchant Content. For purposes of this Agreement "Merchant Content" means any and all trademarks, service marks, trade names, logos, banners, buttons, digital images, graphics, text and other content and material which we may, in our sole discretion, make available to you in connection with this Affiliate Program from time to time. Such Merchant Content may be, directly or indirectly, owned by us or licensed to us by our Merchant Partners.
4. Merchant Content Usage Restrictions. You represent, warrant, covenant and agree that you will not, except as specifically provided for in this Agreement (i) copy or display any Merchant Content, (ii) modify, adapt, translate or create derivative works based on the Merchant Content, (iii) remove, erase, or tamper with any copyright or other proprietary notices in any copy of any of the Merchant Content, (iv) sell, market, license, sublicense, distribute, disclose or otherwise grant to any person or entity any right or interest in the Merchant Content, (v) take any action which may cause deception, confusion or otherwise dilutes the quality of the Merchant Content or the goodwill associated therewith, or (vi) use the Merchant Content in any manner which disparages or portrays us or the Merchant Partners in a false, competitively adverse or poor light. Additionally, you represent, warrant, covenant and agree that (i) you will not include any name, trademark, trade name, service name, logo or similar business identifier, or any variation or misspelling thereof, which is owned or controlled by us or the applicable Merchant Partners in any domain name, Web page tags, URL, or similar material, (ii) you will not alter or attempt to alter the look, feel, content, features or functionality of the Merchant Web Site, (iii) you will immediately substitute or remove any Merchant Content from your Web sites at our request, (iv) your Web site(s) will not in any way copy or resemble the look, feel or content of the Merchant Web Site or create any impression that your Web site(s) are part of the Merchant Web Site, (v) you will not purchase or contract with any other person or entity to exploit any name, trademark, trade name, service name, logo or similar business identifier, or any variation or misspelling thereof, which is owned or controlled by us or the applicable Merchant Partners for any purpose, including, but not limited to, registering or purchasing any such business identifier as a keyword, search term or similar identifier or otherwise causing your Web site(s) to appear as a search result in any search engine, portal, advertising or similar referral service, (vi) you will not use any Merchant Content in a manner which directs or otherwise sends potential customers to any Web site other than the Merchant Web Site, and (vii) you will not attempt to intercept or redirect potential customers from or on the Merchant Web Site or any other Web site participating in this Affiliate Program.
5. Property Ownership Rights. You acknowledge and agree that we and/or the Merchant Partners retain all rights, title and interest in and to all property rights embodied in or associated with the Merchant Content. You represent, warrant, covenant and agree that you will not, and will not assist any third party to, now or in the future, (i) take any action challenging or otherwise inconsistent with our and/or the Merchant Partners' ownership of, or other right in, the Merchant Content, or (ii) register or attempt to register any trademark, service mark, logo, trade name, domain name, or similar business identifier, that contains any name, trademark, service mark, logo, trade name or other content or material owned or controlled by us or our Merchant Partners or any derivation, including misspellings, thereof. All goodwill and benefits accruing from the use of the Merchant Content will automatically vest in us and/or the Merchant Partners. You agree to cooperate with us and to take any additional actions reasonably requested by us and/or the applicable Merchant Partners to effect, perfect or confirm our or the applicable Merchant Partner's rights, title and interest in the Merchant Content.
6. Operation and Maintenance of the Merchant Web Site. You acknowledge and agree that we will accept or reject, in our sole and absolute discretion, all orders by customers for merchandise placed on or through the Merchant Web Site. You further acknowledge and agree that (i) you do not have any authority to make or accept any offer or commitment on behalf of us or the applicable Merchant Partners, (ii) neither we nor our Merchant Partners can, or do, guarantee the availability of any merchandise or other services offered for sale on the Merchant Web Site, and (iii) we, or the applicable Merchant Partners, are solely responsible for all pricing, merchandising, order processing, order fulfillment, shipping, returns and all other aspects of the Merchant Web Site and the sale of merchandise thereunder. Customers who access the Merchant Web Site will be deemed customers of us and/or the applicable Merchant Partner. Accordingly, all of our and the applicable Merchant Partner's then applicable rules, policies and procedures concerning orders, returns, refunds, customer service, privacy and other terms of use and sale will apply to such customers. As between the parties, all information obtained through the use of the Merchant Web Site shall be our and the applicable Merchant Partner's exclusive property.
7. Revenue Share Payments. During the term of this Agreement, we agree to pay you a revenue share (the "Revenue Share") equal to the applicable percentage of Net Revenue determined pursuant to the schedule set forth in the Affiliate Program overview/description materials posted on the Merchant Web Site. Such fee schedule may change from time to time without notice. For purposes of this Agreement, "Net Revenue" means all cash consideration (not including any portion of payment made through the redemption of gift certificates, coupons or credits) from merchandise sold in a transaction resulting directly from a link from your eligible participating Web sites to the Merchant Site in accordance with this Agreement, where the customer purchases such merchandise, less all taxes, shipping and handling charges, gift wrapping and other value-added service charges, returns and charge backs. You acknowledge and agree that we will not be obligated to pay any revenue share unless we actually ship the applicable order and receive full payment for such order. Additionally, unless we otherwise agree, we will not be obligated to pay any revenue share on any purchase from a customer linking to our Merchant Web Site from your Web site(s), unless such purchase is made during the same on-line session. We do not pay a revenue share on the purchase of gift certificates. Subject to the terms and conditions of this Agreement, we will pay you the above-described Revenue Share on a monthly basis. Approximately 45 days following the end of each fiscal month in our fiscal year, we will send, or cause to be sent, to you, a check for the Revenue Share earned, less any taxes or other amounts that we may be required by law to withhold. Notwithstanding the foregoing, if the Revenue Share payable to you for any month is less than $25.00, we will hold payment of such Revenue Share until the month that the total amount due to you hereunder is at least $25.00. No interest will be paid on any such amount held by us. If a Revenue Share payment is made hereunder and relates to merchandise that is later returned by the customer, the applicable Revenue Share will be deducted from the next applicable payment hereunder. If any portion of such Revenue Share cannot be recovered through a deduction, we will invoice you for such amount and you agree to pay this amount within 30 days after receipt of such invoice. Upon termination of this Agreement, we will send, or cause to be sent, to you, a check for the total amount of Revenue Share then owed to you as of the termination date. The final Revenue Share payment may be withheld by us for a reasonable period of time to ensure that the correct amount is to be paid after making any adjustments that may be required, including, but not limited to, adjustments for returns.
8. Responsibility for Your Web Site(s) and Your Participation. You will be solely responsible for the development, operation, and maintenance of all Web sites that are linked to the Merchant Web Site hereunder and for all content, technology and other materials that appear on such Web sites. You acknowledge and agree that you are responsible for complying with all of the terms and conditions hereof and all applicable laws, rules and regulations. You represent, warrant, covenant, and agree that (i) you will not state or imply that we or the applicable Merchant Partners sponsor, endorse, sanction or otherwise approve your Web site or any of your products or service, (ii) you will not state or imply that you are an affiliate, associate, partner or agent of us or the Merchant Partners or otherwise take any action that could reasonably cause customers confusion as to our and/or the Merchant Partners' relationship with you, (iii) you will not take any action that could reasonably cause customers confusion as to the Web site on which any data collection, purchase transaction or other functions are occurring, (iv) you will make no representations regarding the association of Sport skids with you, (v) at all times during and after the term of this Agreement, you will protect all of our Merchant Partners' and SportsKids’ Confidential Information (as defined below) that you obtain or otherwise have access to with the same degree of care that you use to protect your own confidential and proprietary information but in no event less than a reasonable standard of care, (vi) you will only use our, the Merchant Partners' and SportsKids’ Confidential Information to the extent necessary to perform your obligations hereunder, and (vii) you will not use or display any trademark, service mark, logo or other content of SportsKids or infringe any of SportsKids' technology rights. For purposes of this Agreement, "Confidential Information" means all non-public information provided or obtained by you, all customer information, and all business and sales information related to transactions through this Affiliate Program.
9. Affiliate Indemnification. You, at your own cost and expense, will indemnify, defend and hold harmless, us, the Merchant Partners, our and their respective parents, subsidiaries and affiliates, and each of their respective directors, officers, employees, agents, affiliates, successors and assigns against any claim, suit, action, judgment, liability, loss, cost, expenses and other damages, including reasonable attorney's fees, based upon or in connection with (i) any breach or alleged breach of your representations, warranties, covenants agreements, or obligations hereunder, (ii) your Web site(s) and/or any content, technology or other materials displayed or contained thereon, including but not limited to with respect to claims of misappropriation or infringement, (iii) your failure or alleged failure to comply with any applicable law, rule or regulation, and/or (iv) any actual or alleged wrongful or negligent act or omission of Affiliate.
10. Term of the Agreement; Survival. This Agreement shall automatically terminate on the date on which we no longer maintain the Affiliate Program contemplated hereunder. Additionally, either party may terminate this Agreement at any time and for any reason by providing notice (including via e-mail) to the other party. We may also terminate this Agreement immediately, without notice, if we determine, in our sole discretion, that you have breached this Agreement or that your Web site(s) is unsuitable to participate in this Affiliate Program. Paragraphs 4-6, 8-10, 12-18 and 21 (together with all other provisions that may reasonably be interpreted as surviving termination or expiration of this Agreement) will survive any termination or expiration of this Agreement.
11. Modification of Agreement. We reserve the right to modify this Agreement, at any time in our sole discretion, by posting a change of notice or a new agreement on the Merchant Web Site. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THE MERCHANT CONTENT AND PARTICIPATION IN THIS AFFILIATE PROGRAM FOLLOWING ANY MODIFICATION OF THIS AGREEMENT SHALL CONSTITUTE CONCLUSIVE AND BINDING ACCEPTANCE TO ANY MODIFICATION OR NEW AGREEMENT.
12. WARRANTY DISCLAIMER. NEITHER WE NOR THE MERCHANT PARTNERS MAKE ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES, WITH REGARD TO THE PRODUCTS OR SERVICES SOLD THROUGH THE MERCHANT WEB SITE OR THE OPERATION AND MAINTENANCE OF THE MERCHANT WEB SITE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO REPRESENTATION THAT THE OPERATION OF THE MERCHANT WEB SITE WILL BE UNINTERRUPTED OR ERROR-FREE.
13. LIMITATION OF DAMAGES. NEITHER WE NOR THE MERCHANT PARTNERS WILL HAVE ANY LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE, DATA OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM WILL IN NO EVENT EXCEED THE TOTAL REVENUE SHARE PAID OR PAYABLE BY US TO YOU UNDER THIS AGREEMENT DURING THE PRECEDING 12 MONTH PERIOD PRIOR TO THE DATE SUCH LIABILITY AROSE.
14. Independent Contractors. We are independent contractors and nothing in this Agreement is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative, or employment relationship.
15. Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws of the State of West Virginia, excluding its conflict of laws principles. Any lawsuit relating to this Agreement must be brought in the federal or state courts located in Parkersburg, West Virginia
16. Press Release; Publicity. You agree that you will not issue any press release or make any other similar public announcement that in any way makes any reference to us or the Merchant Partners without our prior written consent, which consent may be withheld in our sole discretion.
17. Force Majeure. Our performance under this Agreement shall be excused to the extent that such performance is hindered, delayed or made commercially impractical by causes beyond our reasonable control.
18. Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify, or place any construction upon or on any of the provisions of this Agreement.
19. Assignment. You may not assign this Agreement or any of your rights or delegate any of your obligations under this Agreement, by operation of law or otherwise, without our prior written consent. Subject to such restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
20. Waiver. Our failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
21. Entire Agreement. This Agreement represents the complete agreement and understanding between the parties and supersedes any other oral or written communications or understandings between the parties regarding the subject matter hereof. No amendment or modification to this Agreement will be binding upon us unless agreed to by an authorized representative of us.