AFFILIATE
PROGRAM AGREEMENT
PLEASE READ THE
ENTIRE AGREEMENT.
YOU MAY PRINT
THIS PAGE FOR YOUR RECORDS.
THIS IS A LEGAL AGREEMENT BETWEEN DEBORAH CAGE DOING BUSINESS AS TOP OF THE
MOUNTAIN ACCOMMODATIONS ("TOP OF THE MOUNTAIN ," "WE," "US" OR "OUR,")
AND YOU ("AFFILIATE," "YOU," "YOUR," "YOURS,"
OR "YOURSELF,")
AS AN INDIVIDUAL OR THE ENTITY WHICH YOU REPRESENT. BY CHECKING THE BOX BESIDE
THE AGREEMENT ACKNOWLEDGEMENT WHICH SAYS, "I
HAVE READ AND ACCEPT THE TERMS OF THE AGREEMENT," AND THEN CLICKING
ON THE "JOIN THE AFFILIATE PROGRAM" BUTTON, YOU ARE AGREEING THAT
YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT, THAT
YOU AGREE TO BE LEGALLY RESPONSIBLE FOR COMPLIANCE WITH EACH AND EVERY TERM
AND CONDITION, AND THAT YOU ARE AUTHORIZED TO BIND YOURSELF OR THE ENTITY YOU
REPRESENT.
1. OVERVIEW
1.1. This Affiliate Program Agreement ("Agreement") contains the
complete terms and conditions that apply to your participation in the Top of
the Mountain Affiliate Program (the "Program"). The purpose of the
Program is to allow you to refer people or businesses to Top of the Mountain
using special trackable web links and by word-of-mouth or direct introduction
in a way that allows us to confirm which individuals or businesses you refer
to us so that we can, under the terms of this Agreement, pay you the appropriate
commission on Commissionable Fees (the "Fee" or "Fees").
2. AFFILIATE OBLIGATIONS
2.1. This Agreement will become effective upon your acceptance of
the Agreement as indicated above. The fact that we auto-approve applications
does not imply that we may not re-evaluate your application at a later
time. We may reject your application at our sole discretion at any
time after your acceptance. We may reject your application if we determine
(at our sole discretion) that your website is unsuitable for the Program.
Unsuitable websites include but are not limited to those that:
- 2.1.1. promote pornography and/or sexually explicit materials
- 2.1.2. promote violence or use of illegal substances
- 2.1.3. promote discrimination based on race, gender, religion, nationality,
disability, sexual orientation or age
- 2.1.4. promote hate, crime or other illegal activities
- 2.1.5. incorporate any materials which infringe or assist others
to infringe on any copyright, trademark or other intellectual property
rights, or to violate the law
- 2.1.6. are in any way unlawful, harmful, threatening,
defamatory, obscene, harassing or otherwise
objectionable to us at our sole discretion
2.2. By participating in the Program you agree that you will not engage
in any such activities. You should also note that if we accept your
application and your website is thereafter determined, at our sole
discretion, to be unsuitable for the Program, we may terminate your
Agreement immediately.
3. RELATIONSHIP OF PARTIES
3.1. While the parties to this Agreement shall work hand-in-hand for
the benefit of both parties, the parties acknowledge and agree that the Affiliate
shall, from a legal perspective, act as and shall be an independent
contractor and not an employee or agent of Top of the Mountain. Nothing in
this Agreement shall create a partnership, joint venture, agency, or
franchise between the parties in the legal sense of these terms. The
Affiliate shall not sign any document in the name of, or on behalf of
Top of the Mountain nor shall it hold itself out as being
an agent of Top of the Mountain or as having apparent authority
to contract for or bind Top of the Mountain.
4. AFFILIATE'S
WEBSITE AND PROMOTIONAL METHODS
4.1. The Affiliate shall be solely
responsible for all materials that appear on its website. It shall strictly
adhere to all applicable laws and regulations in conducting its business
and more specifically in marketing and advertising Top of the Mountain.
You
are solely responsible for the accuracy and appropriateness of all
materials posted on your website, and for ensuring that your
activities, including materials posted on your website and
communications with Top of the Mountain and our potential customers are
not defamatory, in violation of copyright laws or otherwise illegal.
You further agree that your activities, including communications with
our potential customers and us,
regarding or relating to Top of the Mountain in any way, are in full compliance
with all applicable laws in your jurisdiction.
4.2. You agree not to use any predatory advertising methods
designed to generate traffic from websites that they have not contracted
with in the online promotion of Top of the Mountain products, services
or Affiliate Program. Predatory advertising is defined as any method
that creates or overlays links or banners on websites, spawns browser
windows, or any method invented to generate traffic from a website
without that website owner's knowledge, permission, and participation.
Examples include, but are not limited to, keyword parsing, browser
plug ins such as TopText and Surf+, banner replacement technology such
as Gator, browser spawning technology that is not website dependent.
Participation in predatory advertising Programs will be cause for the
Affiliate's immediate termination.
4.3. Without restricting the generality of the foregoing, the Affiliate
shall not send unsolicited email and shall not send email or any
other communication to a recipient if the recipient has requested that
you discontinue such communication.
4.4. You agree to
defend, indemnify and hold Top of the Mountain harmless for any violations
of the foregoing. Top of the Mountain disclaims all liability for these matters.
5. TOP OF THE MOUNTAIN RIGHTS AND
OBLIGATIONS
5.1. Top of the Mountain shall have the right to monitor the Affiliate's
website at any time to determine if it is in
compliance with the terms and conditions on this Agreement. We may
notify you of any changes to your website that we feel should be
made regarding your promotion of Top of the Mountain, or to make sure
that your links to our website are appropriate and to notify you of
any changes that we feel should be made.
5.2. Top of the Mountain
reserves the right to terminate this Agreement and your participation
in the Affiliate Program immediately and without notice
to you should you commit fraud in your use of the Top of the Mountain
Affiliate Program or should you abuse this Program in any way. If such
fraud or abuse is detected, Top of the Mountain shall not be liable
to you for any commissions on Fees for such fraudulent sales.
6. AFFILIATE
COMISSIONS, RIGHTS AND PAYMENT
6.1. Subject to all terms of this Agreement, Top of the Mountain will
pay you a 1st Tier commission on the rental Fees paid for accommodations
managed by Top of the Mountain by new customers you refer to us. We
will also pay you a 1st Tier commission for any additional accommodation
rentals purchased by new customers you refer to us for bookings they
place within one full year of the date that they placed their first
booking. Top of the mountain will also pay you a 2nd Tier commission
every time a 1st Tier commission is paid to an Affiliate that was referred
to our program by you.
6.2. The percentage of commission paid on all commissionable fees
is determined in accordance with the Affiliate Commission Schedule
which follows this Agreement and which forms an integral part of this
Agreement.
6.3. Top of the Mountain does not pay commission on any revenue we
generate for services or products we sell in addition to accommodations
such as, but not limited to, lift tickets.
6.4. Top of the Mountain will not pay commissions on accommodations
from any individuals or businesses who have previously booked accommodations
with Top of the Mountain, even if the existing referred customer's
record contains a different email address, credit card number, or other
information different from the individual's or business' previous registration.
In the event that more than one Affiliate claims the same commission
for a sale, Top of the Mountain shall select the Affiliate to receive
the compensation based on our best efforts to determine which Affiliate
was responsible for the initial referral. We may, entirely at our discretion,
and only when a Second Tier Affiliate does not already exist, award
a second tier commission to whichever Affiliate we determine was not
responsible for the initial referral.
6.5. YOU SHALL NOT RECEIVE COMMISSION FOR AN ACCOMMODATION RENTAL
MADE DIRECTLY OR INDIRECTLY FOR YOURSELF.
6.6. You are strictly prohibited from signing
yourself up as a Second Tier Affiliate of your own existing Affiliate account.
Any Affiliate attempting such an arrangement will be instantly terminated
and the Affiliate Agreement immediately cancelled. Any commissions accrued will
remain the property of Top of the Mountain.
6.7. All commissions are based upon the paid price of a Commissionable
Fee before tax. If any commission is paid on a Commissionable Fee,
which is later refunded or determined to have been charged the customer
in error, the amount paid as commission to the Affiliate will be deducted
from future commissions if any are due, or an invoice in the amount
of the commission paid to the Affiliate will be issued and payable
by the Affiliate to Top of the Mountain within 30 days.
6.8. Payment of commissions will be made on a monthly basis within
30 to 45 days following the check out date of the rented accommodation.
Commissions will be paid by check, or some other method at the discretion
of Top of the Mountain and acceptable to the Affiliate. Commission
payments are made in Canadian Dollars.
6.9. It is your responsibility to provide complete and accurate
payee information including tax ID or other applicable information
as appropriate for your country of residence in order to receive payment.
If this Agreement terminates, any commissions due at the time of termination
will be paid within 45 days following termination unless as indicated
elsewhere in this agreement.
6.10. The Affiliate shall be responsible
for all taxes and other similar levies applicable to the commission
pursuant to any law or regulation. The Affiliate shall report the
commission to its taxation authorities as required by law. Top of the Mountain
shall not be responsible for any taxes owed by you arising out
of your relationship with Top of the Mountain as set forth in this Agreement.
7.
MODIFICATION
7.1. Top of the Mountain
may modify any of the terms and conditions in this Agreement, including
terminating this Agreement or the Affiliate Program at any time at
its sole discretion. Modifications may include, but are not limited
to, changes in the scope, percent of commissionable fees, payment
procedures, and the Affiliate Program rules. IF ANY
MODIFICATION IS UNACCEPTABLE TO YOU, YOU SHALL HAVE THE RIGHT TO
TERMINATE THIS AGREEMENT AS SET FORTH BELOW. YOUR CONTINUED PARTICIPATION
IN THE PROGRAM FOLLOWING THE POSTING OF THE
CHANGE NOTICE OR NEW AGREEMENT ON THE topofthemountain.ca WEBSITE
WILL CONSTITUTE YOUR AGREEMENT TO THE CHANGES.
8. TERMS AND TERMINATION
8.1. The term of this Agreement will begin upon your acceptance of
the Agreement as indicated above and will end when terminated by either
party. Either Top of the Mountain or the Affiliate may terminate this
Agreement at any time, with or without cause, by giving the other party
written notice of termination. Upon the termination of this Agreement
for any reason, all licenses granted hereunder shall immediately terminate
and you will immediately cease use of, and remove from your website
or websites, all references to Top of the Mountain and all links to
the Top of the Mountain's website.
8.2. Top of the Mountain will, however, continue to pay you commissions
on Commissionable Fees from your referrals for a certain period following
termination. The current policy is to pay for three months following
termination; however, we may pay entirely at our own discretion for
as many or as few months as we choose depending on the conditions of
termination. Violation of the terms of this Agreement by the Affiliate
may result in the forfeiture of all future or pending commissions on
commissionable fees.
9. DISCLAIMER
9.1. TOP OF THE MOUNTAIN
MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING
TOP OF THE MOUNTAIN SERVICE AND WEBSITE OR THE PRODUCTS OR SERVICES
PROVIDED THEREIN. ANY IMPLIED WARRANTIES OF TOP OF THE MOUNTAIN'S
ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE
EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION
THAT THE OPERATION OF OUR WEBSITE OR OF OUR REFERRAL TRACKING LINK
TECHNOLOGY WILL BE FREE FROM DEFECT OR WILL BE UNINTERRUPTED OR ERROR
FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY DEFECTS,
INTERRUPTIONS OR ERRORS.
10. LIMITATIONS OF LIABILITY
10.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT,
TOP OF THE MOUNTAIN WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT
LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOSS OF GOODWILL OR ACTUAL OR ANTICIPATED REVENUE, PROFITS
OR LOST BUSINESS), EVEN IF TOP OF THE MOUNTAIN HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING
TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL TOP
OF THE MOUNTAIN'S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED
TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING WITHOUT
LIMITATION NEGLIGENCE AND STRICT LIABILITY) BREACH OF WARRANTY OR OTHER
LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSIONS PAYABLE TO
YOU UNDER THIS AGREEMENT.
11. REPRESENTATIONS,
WARRANTIES AND COVENANTS
11.1. You represent, warrant and covenant that:
- 11.1.1. you have full right,
power, and authority to enter into and be bound by the terms and
conditions of this Agreement and to perform your obligations under
this Agreement, without the approval or consent of any other party;
11.1.2. you
have sufficient right, title, and interest in and to the rights granted
to Top of the Mountain in this Agreement;
11.1.3. the material posted
on Affiliate's website does not defame any third party or violate
or infringe upon the rights of any third party or any applicable
copyright and other laws that pertain to it;
11.1.4. you shall not make
any representations or warranties regarding the products or services
provided by Top of the Mountain; and
11.1.5. you shall not make or publicize
any statements that are disparaging, slanderous, defamatory, libelous or derogatory of Top of the Mountain or that otherwise
portray Top of the Mountain in a negative manner.
12. INDEMNIFICATION
12.1. You hereby
agree to indemnify and hold harmless Top of the Mountain,
and its 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, judgments, settlements, costs, and expenses (including reasonable
attorney 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 any claim that our use of the Affiliate trademarks
infringes on any trademark, trade name, service mark, copyright,
license, intellectual property, or other proprietary right of any
third party, any misrepresentation of a representation or warranty
or breach of a covenant and Agreement made by you herein, or any
claim related to your website, including, without limitation, content
therein not attributable to us.
13. CONFIDENTIALITY
13.1. In connection with the activities contemplated by this Agreement,
you may acquire confidential technical or business information of Top
of the Mountain, which is not generally known to the public, including
without limitation proposals, ideas or research related to possible
new products or services; financial statements and other financial
information; any reporting information required by the Agreement; and
the terms of this Agreement and the relationship between the parties
(collectively, "Confidential Information"). You agree not
to disclose the Confidential Information or use the Confidential Information
for your own benefit or for the benefit of any third party. Your obligations
in this Section shall not apply to any information that you can prove
was in the public domain at or subsequent to the time it was communicated
to you through no fault of yours; was rightfully in your possession
free of any obligation of confidence owed to Top of the Mountain at
or subsequent to the time it was communicated to you by Top of the
Mountain; was in response to a valid order by a court or other governmental
body or was otherwise required by law. Upon the termination or expiration
of this Agreement, you shall return upon Top of the Mountain's request
or otherwise destroy all Confidential Information of Top of the Mountain
in your possession.
14.
MISCELLANEOUS
14.1. You may not assign your rights or obligations under this Agreement
to any party.
14.2. You may not create, publish, distribute, or permit any written
or electronically transmitted publicity material (including without
limitation, advertisements and press releases) that makes reference
to Top of the Mountain, or the Top of the Mountain' website without first submitting
the material to Top of the Mountain and receiving its approval, authorization and consent in writing.
You shall not issue any public statement(s) regarding the relationship
with Top of the Mountain without the prior written approval of Top of the Mountain.
14.3. This Agreement
shall be governed by and interpreted in accordance with the laws
of the Province of British Columbia and the laws of Canada without
regard to the conflicts of laws and principles thereof.
14.4. You may
not amend or waive any provision of this Agreement unless in writing
and signed by both parties.
14.5. This Agreement
represents the entire Agreement between you, and us, and shall supersede
all prior Agreements and communications of the parties, oral or written.
14.6. The headings
and titles contained in this Agreement are included for convenience
only, and shall not limit or otherwise affect the terms of this Agreement.
14.7. Top of the Mountain reserves the right, at its full discretion, to
disqualify any individual it suspects of undermining or manipulating
the registration and/or qualifying process, the operation of the Affiliate
Program by attempting to circumvent the Affiliate commission schedule
or artificially increasing your commissions
or by other fraudulent methods or results, or to be acting in violation
of this Agreement. Top of the Mountain may, at its sole discretion, cancel
the Affiliate Program. In the event of your non-compliance with any
requirement stated herein, Top of the Mountain may withhold or reduce any
payments due to you until resolution of all disputes.
14.8. If any provision of this Agreement is held to be invalid or
unenforceable, that provision shall be eliminated or limited to the
minimum extent necessary such that the intent of the parties is effectuated,
and the remainder of this Agreement shall have full force and effect.
15. GENERAL CONDITIONS
YOU HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND AND HAVE HAD
THE OPPORTUNITY TO CONSULT WITH COUNSEL AND ACCEPT THE OBLIGATIONS
WHICH IT IMPOSES UPON YOU WITHOUT RESERVATION. YOU HAVE ALSO TAKEN
INTO ACCOUNT THE LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER PROVISIONS
OF THIS AGREEMENT PRIOR TO ACCEPTING THIS AGREEMENT. NO PROMISES OR
REPRESENTATIONS HAVE BEEN MADE TO YOU TO INDUCE YOU TO ACCEPT THIS
AGREEMENT. YOU AGREE TO THE TERMS OF THIS AGREEMENT VOLUNTARILY AND
FREELY.
EXHIBIT A - DEFINITIONS
As used in this Agreement, the terms set forth below shall have the
following meanings:
New Customer means a unique human being or business
which was not previously in our database prior to your referral.
Commissionable Fee means amount of money paid to
Top of the Mountain exclusively for the rental portion of accommodation
paid for by the New Customer to Top of the Mountain and does not including
taxes, extra person charges, lift ticket charges or booking fees.
First Tier Affiliate means an Affiliate that is directly
responsible for referring a customer who purchases a rental accommodation
from Top of the Mountain.
Second Tier Affiliate means an Affiliate who is indirectly
responsible for referring a customer who purchases a rental accommodation
from Top of the Mountain
as a result of having referred an Affiliate who is a First Tier Affiliate.
(For example, if Affiliate "A" puts a trackable link on their
website which enables Affiliate "B" to join our Affiliate
Program, and then Affiliate "B" directly refers a customer
to Top of the Mountain who purchases a rental accommodation
from Top of the Mountain. Affiliate "B" will
be the First Tier Affiliate and Affiliate "A" will be the
Second Tier Affiliate with regard to the Commissionable Fee.)
EXHIBIT B - AFFILIATE COMMISSION SCHEDULE
This Schedule is in effect:
First Tier Affiliate Commission = Commissionable Fee x 10%
Second Tier Affiliate Commission = Commissionable Fee x 5%