PLEASE READ THIS AGREEMENT CAREFULLY. AS A CONDITION OF
PARTICIPATING IN THE MICROSOFT AFFILIATE PROGRAM, YOU MUST AGREE TO
THE FOLLOWING TERMS AND CONDITIONS WITHOUT MODIFICATION OR
ADDITION.
MASTER AFFILIATE PROGRAM AGREEMENT
August 2010
This Master Affiliate Program Agreement (the "Agreement") is between Microsoft Corporation
("Microsoft") and the individual or entity (the "Affiliate") applying to participate in the Microsoft Store
Affiliate Program (the "Program"). Affiliate's participation in any Program-related marketing
opportunities will be subject to the terms and conditions of this Agreement. Affiliate will be required to
enter into a separate agreement with LinkShare Corporation (“LinkShare”) as a condition of enrolling in
the LinkShare Network. The terms and conditions of any such agreement shall govern the relationship
between Affiliate and LinkShare. Microsoft shall have no responsibility or liability in connection with any
agreement between Affiliate and LinkShare.
BACKGROUND
Microsoft hosts an online marketplace at http://store.microsoft.com that helps Microsoft customers
discover and access a wide variety of hardware, software and other electronic content compatible with
the Windows platform (the "Microsoft Store"). Affiliate wants to earn commissions by directing
potential customers from its site to the Microsoft Store by becoming a member of the Program located
at http://store.microsoft.com/affiliates. Affiliate and Microsoft acknowledge and agree that they are
each enrolled in the LinkShare Network, which is responsible for administering the Program.
Affiliate and Microsoft each desire to establish the terms and conditions which shall govern the
arrangements between them under this Program.
TERMS AND CONDITIONS
In consideration of the promises set forth below, Affiliate and Microsoft agree as follows:
1. Offers and Engagements
1.1 From time to time, Microsoft may post offers on the LinkShare Network to pay affiliates a specified
commission (a “Commission”) in return for certain advertising services leading to a Qualifying Link (each
an “Offer”). Each such Offer will include one or more special URLs that an affiliate must use to link its
website to areas of the Microsoft Store (the "Required URLs"). The LinkShare Network will provide an
identification number for each such Offer.
1.2 If Affiliate accepts an Offer posted on the LinkShare Network by clicking through the “opt in” option,
an "Engagement" will have been formed. Each Engagement will have the same identification number as
the original Offer that led to the Engagement. Each Engagement shall include the Offer terms and shall
be governed by this Agreement. However, in the event of any inconsistency between the terms of a
specific Engagement and the terms of this Agreement, the terms of this Agreement shall govern.
1.3 Microsoft may at any time, in its sole discretion, and with or without notice, suspend, discontinue or
otherwise change any aspect of an Offer or an Engagement. If Microsoft changes an Offer or an
Engagement after Affiliate provides a Required URL that results in a Qualifying Link, such change will not
affect any commissions earned by Affiliate between the date of the first Qualifying Link and the date of
such change.
1.4 Modifications. Microsoft reserves the right to change the terms and conditions of the Program and
this Agreement at any time, in its sole discretion and with or without notice to Affiliate, by updating this
Agreement on the Microsoft Store website at http://store.microsoft.com and the LinkShare Network
Affiliate Account Area at http://www.linkshare.com/affiliates/terms.shtml, or to any successor URLs to
those sites. Modifications may include, for example, changes in the scope of available Commissions, fee
schedules, payment procedures and Program rules. Affiliate is responsible for regularly reviewing the
terms and conditions of the Program and this Agreement. Affiliate's continued participation in the
Program, including, if applicable Affiliate’s continued use of the Qualifying Links and the Logo or other
Microsoft link logos as may be provided by Microsoft for separate offers on Affiliate's website,
constitutes its acceptance of and agreement to any such changes.
2. Affiliate's Responsibilities
2.1 For each Offer it accepts, Affiliate will use the Required URLs to link its website to areas of the
Microsoft Store. Affiliate may post an unlimited number of Required URLs on Affiliate's website. The
position, prominence and nature of such Required URLs on the Affiliate's website shall comply with any
requirements specified in this Agreement and the Offer.
2.2 Affiliate will not make any representations, warranties or other statements concerning Microsoft or
Microsoft's affiliates, the Microsoft Store, any products or services on the Microsoft Store, Engagement
terms, or Microsoft's site policies, except as expressly authorized by the Engagement and this
Agreement.
2.3 Affiliate will notify Microsoft and the LinkShare Network in writing of any malfunctioning of the
Required URLs or other problems with Affiliate's participation in the Program. Microsoft will respond
promptly to all concerns upon notification by Affiliate.
2.4 Affiliate will be solely responsible for the development, operation, and maintenance of its website
and for all materials that appear on its website. For example, Affiliate will be solely responsible for:
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the technical operation of its website and all related equipment;
creating and posting product descriptions on its website and linking those descriptions to the
Microsoft Store;
the accuracy and appropriateness of materials posted on its website;
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ensuring that materials posted on Affiliate's website do not violate or infringe upon the rights of
any third party (including, for example, copyrights, trademarks, privacy, or other personal or
proprietary rights);
ensuring that that Microsoft product descriptions comply with the guidelines at
http://www.microsoft.com/about/legal/en/us/IntellectualProperty/Trademarks/Usage/OEM.as
px;
ensuring that materials posted on its website are not libelous or otherwise illegal; and
ensuring that its website accurately and adequately discloses, either through a privacy policy or
otherwise, how Affiliate collects, uses, stores, and discloses data collected from visitors,
including, where applicable, that third parties (including advertisers) may serve content and/or
advertisements and collect information directly from visitors and may place or recognize cookies
on visitors' browsers.
Microsoft disclaims all liability for these matters.
2.5 While it is an affiliate under the Program, Affiliate will comply with all laws, ordinances, rules,
regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental
authority that has jurisdiction over it, whether those laws, etc. are now in effect or later come into
effect during the time it is a Program affiliate. Without limiting the foregoing obligation, Affiliate further
agrees that it will comply with all applicable laws (federal, state or otherwise) that govern marketing
email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.
2.6 Affiliate will not bid on any keyword in Pay Per Click Search Engines (PPCSEs) that is a Microsoft
trademark, or a derivation of a trademark, or any other word or term that is likely to cause confusion
regarding its affiliation with Microsoft. Some examples of these keywords include, but are not limited to:
Microsoft, microsoft.com, www.microsoft.com, Microsoft Store, and www.microsoftstore.com.
Microsoft may, in its sole discretion, and with or without notice, modify this list from time to time to
include any other word or phrase.
2.7 Affiliate will not employ the use of any type of software download or technology which attempts to
intercept or re-direct traffic or Commissions to or from, any other website without Microsoft’s written
consent.
3. Commissions
3.1 Microsoft will pay Affiliate, via LinkShare, the Commission specified in the Engagement if a visitor to
the Microsoft Store (a "Customer") purchases a product or service that is the subject of the Engagement
via a Qualifying Link. Microsoft will not be responsible for paying Commissions resulting from invalid
Engagements or unauthorized Engagements that occurred as a result of any violation of this Agreement,
which determination shall be made by Microsoft in its sole discretion. Affiliate acknowledges and agrees
that neither Microsoft nor its affiliates or contractors make any guarantee, prediction, or representation
regarding the Affiliate’s ability to generate purchases or earn Commissions under this Agreement.
3.2 A "Qualifying Link" is a link from Affiliate's site to the Microsoft Store that both uses one of the
Required URLs for use in the LinkShare Network and is the last link to the Microsoft Store that the
Customer uses during a Session where the Customer purchases a product or a service from the
Microsoft Store. A "Session" is the period of time beginning from a Customer's initial contact with the
Microsoft Store via a link from the Affiliate's site and terminating when the Customer either returns to
the Microsoft Store via a link from a site other than Affiliate's site or the Engagement expires or is
terminated.
3.3 For valid Engagements that do not violate this Agreement, the LinkShare Network will make all
determinations regarding whether a link is a Qualifying Link and whether a Commission is payable to
Affiliate.
4. Ownership and Licenses
4.1 Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service
marks, trade dress, copyrights and proprietary technology, including without limitation, those names,
logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or
which may be developed and/or used by it in the future.
4.2 Microsoft hereby grants Affiliate a non-exclusive, revocable, personal, non-transferable license,
which may not be sublicensed, to use the Microsoft Store link logo (“Logo”) on Affiliate’s website during
the term of the Agreement for the sole purpose of establishing a Qualifying Link, as defined in 3.2
above, and redirecting visitors from Affiliate’s website to the Microsoft Store. Affiliate agrees to use the
Logo in accordance with the Link Logo Guidelines set forth in Exhibit 1 to this Agreement. Nothing in
Affiliate’s Logo use should suggest any endorsement or approval by Microsoft of Affiliate’s goods and
services or mislead visitors into believing that there is more to the parties’ relationship than Affiliate
simply redirecting visitors to the Microsoft Store via the Qualifying Link as set forth in the Agreement.
Other than the license granted under this Agreement, Microsoft reserves all of its rights in the Logo and
any other content provided to Affiliate by Microsoft. Affiliate agrees that the nature and quality of the
Logo use will be under Microsoft's control and will conform to the standards set by Microsoft. Microsoft
may revoke its license grant to Affiliate at any time for any and no reason by giving Affiliate notice. In
addition, Microsoft may at any time, in its sole discretion, and with or without notice, remove and alter
or modify any Logo submitted by Microsoft for an Offer or an Engagement. Affiliate agrees to promptly
implement any request from Microsoft to remove, alter or modify any Logo submitted by Microsoft that
is being used by Affiliate as part of an Engagement. In addition, once the license or this Agreement is
revoked or terminated, Affiliate agrees to immediately cease using the Logo and remove any other
content provided to it by Microsoft.
4.3 Affiliate grants Microsoft a non-exclusive, worldwide, royalty-free license to use, reproduce and
transmit any graphic or banner ad submitted by Affiliate solely for co-branding purposes or as a return
link from the Microsoft Store to Affiliate's site. Microsoft will remove such graphic or banner ad upon
Affiliate's written request.
5. Term and Termination
5.1 The term of this Agreement will begin upon Affiliate's acceptance of the terms and conditions of this
Agreement and will end when terminated according to Section 5.3 or 5.4. Upon the termination of this
Agreement for any reason, Affiliate agrees to immediately cease use of, and remove from its websites,
all Qualifying Links to the Microsoft Store, all Logos, and all other materials or content provided by or on
behalf of Microsoft to Affiliate pursuant to this Agreement or in connection with the Program.
5.2 Either party may terminate any Engagement at any time by canceling their acceptance of the
Engagement through the LinkShare Network. Termination of an Engagement shall not terminate this
Agreement or any other Engagement.
5.3 Either party may terminate this Agreement at any time and for any reason, provided that they send
at least five day's prior written notice of such termination to the other party and the LinkShare Network.
Microsoft may terminate this Agreement immediately for cause if Affiliate breaches any term of this
Agreement. Termination of this Agreement shall also terminate any outstanding Engagements.
However, all rights to payment, causes of action and any provisions which by their terms are intended to
survive termination, shall survive termination of this Agreement.
5.4 This Agreement shall automatically terminate if Affiliate’s LinkShare Network membership is
terminated for any reason. In such event, termination of this Agreement shall be effective on the same
date that the Affiliate’s LinkShare Network membership is effectively terminated. Affiliate shall
immediately provide written notice to Microsoft of the termination of its membership with the
LinkShare Network and shall include in such notice the termination effective date.
6. Representations and Warranties
6.1 Affiliate represents and warrants to Microsoft that:
(a) All information provided in its LinkShare application to participate in the LinkShare Network and all
information provided to Microsoft to participate in the Program is true, correct, and complete.
(b) Affiliate has the full right and capacity to enter into and perform according to this Agreement, and, if
Affiliate is an individual, that Affiliate is at least 18 years of age.
(c) Affiliate's performance does not and will not violate any agreement or obligation between Affiliate
and any third party.
(d) At all times during this Agreement, Affiliate will operate Affiliate's website and all contents thereof in
compliance with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments,
decisions or other requirements of any governmental authority that has jurisdiction over it, whether
those laws, etc. are now in effect or later come into effect during the time it is a Program affiliate,
including but not limited to the CAN-SPAM Act of 2003 and those relating to privacy and data
protection.
(e) At all times during this Agreement, Affiliate's website and all contents thereof will (i) not violate the
rights of or any duty owed to any other party, and (ii) will not contain any of the restricted content listed
in Attachment 2 to this Agreement.
6.2 MICROSOFT MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES TO AFFILIATE,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE
OF PERFORMANCE, DEALING, OR TRADE USAGE. IN ADDITION, MICROSOFT MAKES NO
REPRESENTATION THAT THE OPERATION OF THE MICROSOFT STORE OR THE REQUIRED LINKS WILL BE
UNINTERRUPTED OR ERROR-FREE, AND MICROSOFT WILL NOT BE LIABLE FOR ANY LOST PROFITS OR
OTHER DAMAGES RESULTING FROM OR DUE TO ANY INTERRUPTIONS OR ERRORS.
6.3 Prohibitions. Affiliate will not take any action, and will not authorize or encourage any third party to
directly or indirectly take any action, that may result in a purchase through any automated, deceptive,
fraudulent or other invalid means, including, but not limited to, through repeated manual clicks, the use
of robots or other automated query tools and/or computer generated search requests, and/or the
unauthorized use of other search engine optimization services and/or software. Any methods that
artificially generate actions that may result in a purchase are prohibited under this Agreement.
6.4 Compliance and Audit. Upon request from Microsoft, Affiliate will certify and warrant its compliance
with this Agreement and all other terms and conditions of the Program. During the term of the
Agreement and for one (1) year thereafter, Microsoft will have the right to cause a reasonable audit
and/or inspection to be made of Affiliate's applicable records and facilities in order to verify Affiliate's
certification of compliance with all terms and conditions of the Program. Any such audit will be
conducted by Microsoft corporate internal audit or an independent professional selected by Microsoft.
Affiliate agrees to provide Microsoft's designated audit or inspection team access to the relevant
records and facilities. Except as specified in the next sentence, Microsoft will be responsible for all costs
and fees related to such audits. If such audit reveals that Affiliate has breached this Agreement, made a
false or incomplete certification of its compliance, or taken any improper action to generate
Commissions or other benefit to Affiliate, then in addition to promptly refunding any Commissions or
other benefits received from or on behalf of Microsoft, Affiliate will be responsible for all costs and
expenses incurred by Microsoft in conducting such audit, including, but not limited to, any amounts paid
to any auditor or attorney.
7. Indemnification
Affiliate will fully defend, indemnify and hold Microsoft, its subsidiaries, affiliates, and suppliers
harmless from any and all claims by third parties arising out of or related to Affiliate's participation in
the Program, any violation of this Agreement, or relating to the development, operation, maintenance,
and contents of Affiliate's website, except to the extent that any such claims relate to the Qualified Links
or the Logos in their unmodified forms as provided by Microsoft. Affiliate will pay the amount of any
adverse final judgment, award, or settlement, and all attorneys' fees and costs. Affiliate may not settle
any claim without Microsoft’s consent, which consent may be provided in Microsoft’s sole discretion. At
Microsoft's sole option and expense, Microsoft may participate in the selection of counsel, defense and
settlement of any claim covered by this Section.
8. LIABILITY LIMITATION; AFFILIATES EXCLUSIVE REMEDY
IN NO EVENT WILL MICROSOFT BE LIABLE FOR ANY DAMAGES GREATER THAN THE AMOUNT PAID IN
COMMISSIONS HEREUNDER OVER THE LAST 12 MONTHS. IN ADDITION, IN NO EVENT WILL MICROSOFT
BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL,
SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THIS
AGREEMENT OR AFFILIATE’S PARTICIPATION IN THE AFFILIATE PROGRAM, EVEN IF MICROSOFT HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES UNDER THIS
SECTION 8 IS INDEPENDENT OF AFFILIATE'S EXCLUSIVE REMEDY PROVIDED BELOW AND SURVIVES IN
THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED
UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE
DAMAGES ARISE FROM (i) BREACH OF CONTRACT, (ii) BREACH OF WARRANTY, (iii) NEGLIGENCE, OR (iv)
ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT
PROHIBITED BY APPLICABLE LAW. IF AFFILIATE IS DISSATISFIED WITH THE AFFILIATE PROGRAM, THE
LOGOS, THE QUALIFIED LINKS, OR AFFILIATE DOES NOT AGREE WITH ANY PART OF THIS AGREEMENT,
OR AFFILIATE HAS ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST MICROSOFT WITH RESPECT TO
THIS AGREEMENT OR THE AFFILIATE PROGRAM, THEN AFFILIATE'S SOLE AND EXCLUSIVE REMEDY IS TO
TERMINATE THIS AGREEMENT.
9. General
9.1 Governing Law; Venue. This Agreement has been made in and shall be construed and enforced
according to the laws of the State of Washington. Any action to enforce this Agreement shall be brought
in the federal court located in Western Washington or in the Superior Court of King County, Washington.
9.2 Counterparts. This Agreement may be executed in more than one counterpart, each of which
together shall form one and the same instrument. The parties agree that execution may be achieved in
any format convenient to the parties.
9.3 Publicity. Affiliate agrees that Microsoft may use its name and logo in press releases, presentations,
marketing materials, customer lists, financial reports, and listings of Affiliates. Affiliate may not use
Microsoft's names, products, Logo or any Microsoft content in public announcements, press releases,
marketing materials or communications or other materials or lists of any kind without Microsoft's prior
written consent.
9.4 Information. Each party will own, and have sole control of and responsibility for, all information
collected by it from the visitors of its websites.
9.5 Independent Contractors. The parties are independent contractors and nothing in this Agreement
shall be construed as creating an employer-employee relationship, a partnership, an agency relationship
or a joint venture between the parties.
9.6 Third Parties. Microsoft may use the services of third parties to perform any or all of its obligations
hereunder.
9.7 Assignment. Affiliate may not assign this Agreement, or assign, transfer or sublicense any of its rights
hereunder.
9.8 Interpreting the Agreement. If any part of this Agreement is determined to be invalid or
unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed
superseded by a valid, enforceable provision that most closely matches the intent of the original
provision and the remainder of this Agreement will continue in effect. Except as expressly stated herein,
this Agreement constitutes the entire agreement between Affiliate and Microsoft with respect to the
Program and it supersedes all prior or contemporaneous communications and proposals, whether
electronic, oral or written, between Affiliate and Microsoft with respect to the Program. The section
titles in the Agreement are solely used for the convenience of the Parties and have no legal or
contractual significance.
9.9 Acceptance Required. Affiliate's participation in the Program is subject to Microsoft's acceptance
and to Affiliate's continued compliance with the terms and conditions of this Agreement.
9.10 Attorneys' Fees. In any action to enforce any right or remedy under this Agreement or to interpret
any provision of this Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees, costs and other expenses.
9.11 Notice. All notices to Microsoft shall be sent via registered mail to Microsoft's headquarters to the
attention of Microsoft's legal department: Legal and Corporate Affairs, Microsoft Corporation, One
Microsoft Way, Redmond, WA 98052-6399. All notices to Affiliate shall be sent via registered mail,
facsimile or email to the contact address provided by Affiliate.
MICROSOFT
AFFILIATE
EXHIBIT 1
MICROSOFT LINK LOGO GUIDELINES
Microsoft Store Affiliates who use the Microsoft Store Link Logo (“Logo”) to establish a link from their
website to the Microsoft Store must comply with the following Logo guidelines.
1.
You may display the Logo only on your website in the manner specified in the Affiliate Agreement
and not in any other manner anywhere else.
2.
The Logo signifies a link to the Microsoft Store, not an endorsement of your site. You may not
remove the “Microsoft Store” element or any other element of the Logo.
3.
Your web page title, trademarks, and other logos must appear at least as prominent as the Logo.
You may not display the Logo in any manner that suggests affiliation with, sponsorship or
endorsement by Microsoft.
4.
The Logo must appear by itself, with a minimum spacing (1/4 the height of the Logo) between each
side of the Logo and other graphic or textual elements on your web page. The Logo may not be used
as a feature or design element of any other logo.
5.
You may not alter the Logo in any manner, including size, proportions, colors, elements, etc., or
animate, morph, or otherwise distort its perspective or appearance.
6.
You may not display the Logo on any site that disparages or brings in disrepute Microsoft or its
products and services, infringes any Microsoft intellectual property or other rights, or violates any
state, federal, or international law.
7.
Microsoft reserves the right to take action against any use that does not conform to these
guidelines, infringes any Microsoft intellectual property or other rights, or violates other applicable
laws.
MICROSOFT DISCLAIMS ANY WARRANTIES THAT MAY BE EXPRESSED OR IMPLIED BY LAW REGARDING
THE LOGO, INCLUDING WARRANTIES AGAINST INFRINGEMENT.
EXHIBIT 2
RESTRICTIONS ON CONTENT
Affiliate's website and web pages must not contain the following content:
1.
Guns;
2.
Nudity and pornography;
3.
Illegal activity, including, but not limited to, sedition, illegal gambling or illegal contests, pyramid
schemes or chain letters;
4.
Potentially defamatory, slanderous, libelous, obscene, sexually explicit, abusive activities, or
hate content;
5.
Profanity;
6.
Unattached body parts;
7.
Violations of a third party's intellectual property rights (including trademark or copyright
infringement), or rights of publicity or privacy;
8.
Misleading or fraudulent content;
9.
Discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or
disability;
10.
MP3, MPEG and/or other copyrighted materials for download, sale or otherwise, in any case
without the permission of the copyright owner or otherwise in violation of copyright law; or
11.
Any Regulated Business. "Regulated Business" refers to any activity conducted by Affiliate
which, due to being subject to special laws and/or regulations that ordinarily do not apply to
commercial establishments generally, causes or could reasonably be likely to cause Microsoft or
any Network Affiliate or other Website in a LinkShare-tracked engagement with Microsoft to be
subject to such laws and/or regulations. Examples of Regulated Businesses include selling or
providing insurance, securities, mortgages, loans or other extensions of credit, banking services
(including the maintenance of deposit accounts), investment advice or investment advisory
services, prescription drugs or firearms, conducting games of chance, or acting as a broker,
agent or finder for any person engaged in a Regulated Business.