Mammoth Nation Vendor Agreement

THIS VENDOR AGREEMENT ("AGREEMENT") IS MADE BETWEEN YOUR COMPANY, HEREAFTER REFERRED TO AS "COMPANY" OR "YOU," AND MAMMOTH NATION, HEREAFTER REFERRED TO AS "MAMMOTH" OR "US". BY CLICKING THE "I ACCEPT" BUTTON BELOW, YOU HEREBY AGREE TO BE BOUND BY THIS AGREEMENT. YOU AGREE THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY.


BACKGROUND

This Agreement establishes the general terms and conditions that shall govern advertising, discounts, and commission arrangements between You and Us.


TERMS AND CONDITIONS

1. Representations

Each party represents to the other that

  1. it has the authority to enter into this Agreement, and
  2. any material which is provided to the other party and displayed on the other party's site will not
    1. infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy;
    2. violate any applicable law, statute, ordinance or regulation;
    3. be defamatory or libelous;
    4. be lewd, pornographic or obscene;
    5. violate any laws regarding unfair competition, antidiscrimination or false advertising;
    6. promote violence or contain hate speech; or
    7. contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.

EXCEPT FOR THE ABOVE REPRESENTATIONS, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

2. Offers

Mammoth may, with or without notice to Company and without liability to Company:

  1. modify, suspend or discontinue any aspect of this Agreement;
  2. remove, alter, or modify any graphic or details on any Mammoth website, links, marketing materials or other communications (collectively, the "Mammoth Site");
  3. use the Company Intellectual Property (as defined below) in Our newsletters, email communications, commercials, or other advertising methods to promote Mammoth to the general public and prospective customers; and
  4. charge a fee for continued display or promotion of the Company Intellectual Property on the Mammoth Site; You will be notified before any fee is charged.

3. Your Responsibilities

In return for Company being displayed on the Mammoth Site, Company may reciprocate by marketing Mammoth to Company’s customer database via email, social media or other means possible, as agreed by the parties. Company may also annotate on product pages of website that Company is affiliated with Mammoth.

Social media and visual content may be provided to Company for distribution upon joining.

Should Company not have capacity to notify database of joining Mammoth, Company has option to have Mammoth send email to Company customer base at no extra charge.

If Company agrees to market Mammoth to Company's customer database via email, Mammoth will provide Company with the pre-approved html email, or You can provide Mammoth with Company's email list and Mammoth will conduct email campaign on Company’s behalf. All Mammoth promotions will be pre-approved by Mammoth for Company use and Company may not edit, modify or otherwise change the pre-approved promotions or communications. Copies of all emails sent, and links to other online marketing media promotions, must be sent to [email protected] within 72 hours of sending. Forementioned email will also be added to Company distribution list.

Company has sole responsibility for processing, fulfillment, customer service, warranty obligations and all other liability and obligations relating to Company's sale of products and services to Customers (as defined below), including orders and matters made by Customers through Mammoth site. Company acknowledges that all agreements relating to sales to Customers shall be between Company and Customer and Mammoth assumes no responsibility or liability relating to Company's sale of products or services.

Company is responsible for notifying Mammoth of any malfunctioning URLs or Promo Codes specific to this Agreement or other problems with participation in this Agreement.

You agree not to make any representations, warranties or other statements concerning Mammoth, the Mammoth Site, any other Mammoth affiliates' products or services or site policies, except as expressly authorized by this Agreement. You hereby agree to comply with all applicable laws.

4. Ownership and Licenses

Each party owns and shall retain all rights, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights, proprietary technology, and intellectual property, 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.

Company grants Mammoth a revocable, non-exclusive, royalty-free, fully paid-up, worldwide license to use, reproduce, market and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology of Company (the "Company Intellectual Property") for purposes identified in this Agreement, including for the purpose of creating links from Mammoth site(s) to Company site(s) during this Agreement, and including promoting Company brand on Mammoth site. Except as expressly set forth in this Agreement or permitted by applicable law, Mammoth may not copy, distribute, modify, reverse engineer or create derivative works from the Company Intellectual Property. Mammoth may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void.

5. Termination

Either party may terminate this Agreement at any time, for any reason, upon notice to the other party, provided that Company provides at least ten (10) business days' prior written notice of such termination to Mammoth. 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.

6. Indemnification

Each party hereby agrees to indemnify, defend and hold harmless the other party and its publishers, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) (collectively, "Losses"), arising out of a breach, or alleged breach, of any of its representations or obligations herein. In addition, Company hereby agrees to indemnify, defend and hold harmless Mammoth and its publishers, directors, officers, employees and agents, from and against any and all Losses arising out of: (a) statements, promotions or communications made by Company that were not specifically authorized in writing by Mammoth; (b) Company's negligence or misconduct; (c) the sale of products or services by Company; and (d) infringement of the Company Intellectual Property on any third party's intellectual property rights.

7. Limitation of Liability

In no event shall either party be liable to the other party for any direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.

8. Mammoth Nation Member Discount

Company will provide a discount on products/services accessible to Mammoth members only, the amount of such discount to be mutually agreed upon by the parties. Company will provide to Mammoth either (a) a unique promo/discount code for members to enter manually at checkout on Company website, or (b) a discount URL link with coding that automatically applies the discount at checkout. Company will send Mammoth a new promo/discount code or URL link with updated coding at least annually.

9. Commissions/Referral Fees

Company agrees to pay Mammoth a commission/referral fee on all sales generated through the Mammoth site, the amount to be mutually agreed upon by the parties. The Commission shall be earned by Mammoth if Company sells to a member of Mammoth's program (a "Customer") a product or service if the Customer has accessed the Mammoth site and purchased the product or service via a Qualifying Link or Promo Code. Company's pricing and terms to Customers will be determined by Company in its sole discretion, and Company assumes all risk of nonpayment or partial payment from Customers and must pay Mammoth the full amount of Commission owed hereunder regardless of any Customer nonpayment or partial payment.

A summary of sales and Commission earned (the "Commission Report") will be provided by Company to Mammoth by the 15th day following the end of each month for the prior month. If the Commission owed to Mammoth for a month is greater than $50, Company shall pay the Commission at the same time of delivery of the Commission Report, but in no event later than fifteen (15) days following the end of the month. If the Commission earned is less than $50, it will be rolled to the next monthly payment and paid to Mammoth pursuant to the terms herein once the total Commission due is greater than $50; provided, however, that payments of Commission will be paid to Mammoth at least quarterly.

If payment of Commission is not timely received by Mammoth, Company shall pay interest on all late payments, calculated daily and compounded monthly, at the lesser of the rate of one and a half percent (1.5%) per month or the highest rate permissible under applicable law. Company shall also reimburse Mammoth for all reasonable costs incurred by Mammoth in collecting any late payments, including attorneys' fees and court costs. In addition to all other remedies available under this Agreement or at law, if Company fails to pay any amounts when due under this Agreement, Mammoth may: (a) suspend the use of Company's Intellectual Property on the Mammoth site; or (b) terminate this Agreement pursuant to Section 5.

10. Audit Rights

Company will grant Mammoth and its accountants reasonable access to Company's books and records which relate to this Agreement, and the Commission due, to the extent necessary to audit the calculation of the Commission. In the event an audit discloses an underpayment by Company of 5% or more of the Commission, Company will bear all reasonable out-of-pocket costs and fees incurred by Company in connection with such audit. Company will preserve materials relating to this Agreement for a period of one year following termination of this Agreement, or such longer period as may be required by applicable law.

11. Confidentiality

Neither party may, nor for a period of three (3) years following the termination of this Agreement, disclose to anyone or use for any purpose, other than the purposes specifically identified in this Agreement, any Confidential Information (as defined below) of the other party, except any such Confidential Information which is required to be disclosed by a party in connection with any court action or any proceeding before any administrative body or pursuant to any law, and then only after such party has given written notice to the other party of its intention to disclose such Confidential Information and has given the other party a reasonable opportunity to contest the need for such disclosure. For purposes of this Agreement, the term "Confidential Information" shall mean all non-public and all proprietary information of a party, which includes all information which derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and is the subject of efforts to maintain its secrecy that are reasonable under the circumstances.

12. Assignment

Company may not assign this Agreement without Mammoth's prior written consent. A change in ownership of the Company shall be considered an assignment.

13. General

Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect. Each Company is solely responsible for compliance with respective law in practice with production, handling, fulfillment and warranties governed by local, state and federal ordinances to such.

This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of Wisconsin. Any action to enforce this Agreement shall be brought in the federal or state courts located in that state.