Tortuga Terms & Conditions

Tortuga Terms & Conditions

Foreword

Affiliate and Sponsor marketing is a valuable channel of Tortuga’s overall marketing strategy. It is important for us to maintain open communication and positive relationships with our affiliates and sponsors. This Agreement pertains to both affiliates and sponsors (collectively “Participants”). In addition to agreeing to these Terms and Conditions, all sponsees are required to enter into a Sponsorship Agreement.

This Agreement is written with our Participants in mind as well as to protect Tortuga. If you have any questions, email our Participant Manager at angela@tortugabackpacks.com.

Angela Rollins
Tortuga Affiliate and Sponsor Manager


Agreement
By submitting your application to the Tortuga Affiliate Program or Sponsor Program (collectively “Participant Program” and individually “Affiliate Program” and “Sponsor Program”), you are agreeing that you have read and understand the terms and conditions of this Agreement and will be responsible for maintaining compliance with this Agreement. These Terms and Conditions may change, and it is your responsibility to be up to date with all current updates. If we make significant updates to these Terms, we will do our best to notify Participants.
Overview
The purpose of this agreement is to allow linking between your website and the Tortuga website or other agreed-upon platform (including blogs and podcasts). “We,” “us,” and “our” refer to Tortuga Backpacks, LLC, and “you,” “your,” and “yours” refer to the affiliate or sponsor.
1. Approval/Rejection of Application
1.1. We reserve the right to approve or reject any application for any reason. Participant status may be re-evaluated at any time.
1.2. Tortuga reserves the right to deny your application or terminate your membership in your respective Tortuga Program if we determine your site is unsuitable for any reason, including but not limited to:
1.2.1. Promotes sexually explicit materials
1.2.2. Promotes violence
1.2.3. Promotes discrimination based on race, sex, sexual orientation, religion, nationality, disability, age, or other expression of identity or personhood
1.2.4. Promotes illegal activities
1.2.5. Infringes on any copyright, trademark, or other intellectual property rights
1.2.6. Violates the law
1.2.7. Is harmful, threatening, defamatory, obscene, harassing, or otherwise objectionable to us in our sole discretion
1.2.8. Contains software downloads that potentially enable diversions of commission from other affiliates in our program
1.2.9. Leads customers to believe that you are Tortuga, are selling our products directly, or have the authority to represent us, explicitly or implied through design or content on your website or any other website that you operate.


2. Affiliate and Sponsor Approved Links
2.1. As a member of the Tortuga Affiliate Program, you will have access to affiliate links through the AvantLink platform. In order for us to accurately track visits from your site to ours, you must use the affiliate links provided.
2.2. You may use graphic and text links on your website, social media accounts, and within email messages. You may use graphics and text provided by us or create your own as long as they follow conditions outlined in this Agreement.
2.3. In the event that we authorize codes or discount links to be used on alternative platforms including but not limited to podcasts , you will be provided specific instructions in your Sponsorship Agreement that outline how to provide the unique codes to your listeners.


3. PPC & Paid Ads
3.1. You may not bid on PPC campaigns for any keywords relating to our business, including but not limited to: tortugabackpacks.com, tortuga, www.tortugabackpacks, www.tortugabackpacks.com, packsmith, on your terms, setout, outbreaker, homebase, setout backpack, outbreaker backpack, homebase backpack, 45L setout, 35L setout, 45L outbreaker, 35L outbreaker, setout backpack men's, setout backpack women's, setout divide, setout divide backpack, setout daypack, setout packable daypack, setout packing cubes, setout duffle, setout duffle bag, setout laptop backpack, outbreaker daypack, outbreaker duffle, outbreaker wet/dry bag, outbreaker laptop backpack, homebase duffle, homebase duffle case, and/or any misspellings or similar alterations of these as well as any current or future Tortuga product names or collection names AND their misspellings or alterations. Our product lists change and evolve, and therefore this provision relates to any and all new products that are in use. If you bid on any PPC campaigns that relate to our business, you will be considered a trademark violator and will be banned from the Tortuga Affiliate Program. We reserve the right to expel any trademark violator from our affiliate program without prior notice and on the first occurrence of violating this kind of PPC bidding behavior.
3.2. You may not use affiliate links in paid ads.


4. Merchant Rights & Obligations
4.1. Tortuga is not responsible for your success in the Participant Program.
4.2. The maintenance and updating of your site is your responsibility. We may monitor your site and notify you of any changes that we feel would enhance your performance.
4.3. Tortuga reserves the right to review your placement and approve the use of your links and require that you comply with the guidelines provided.
4.4. Tortuga has the right to monitor your site (or other approved platform) to ensure you are following the terms and conditions of this Agreement. We may notify you of changes we feel should be made to maintain the terms and conditions of this Agreement. If you do not make necessary changes to your site, we reserve the right to terminate your participation in the Tortuga Participant Program.

5. Affiliate and Sponsor Commissions & Payment
5.1. Tortuga’s Participant Program runs on a last-click model. Commission will be given to the Participant whose link was last clicked before a customer placed their order within the tracking window.
5.2. There is a limit of one commission per referral. Occasionally, a technical error will result in a single referral giving credit to multiple affiliates and/or sponsors. If this happens, the error will be corrected and the affiliate or sponsor who was clicked prior to purchase will receive credit for the referral.
5.3. Commissions will only be granted for transactions that have been completed successfully. Refunded transactions or those that result in chargebacks due to a fraudulent order will not be paid out.
5.4. Tortuga is not liable for any commissions that may have been owed to you if a potential customer clears their cookies during the tracking window.
5.5. Tortuga uses AvantLink and Shareasale, third party affiliate networks to handle all of the tracking and payment. Refer to AvantLink’s payment terms and conditions for details for Affiliate payments (https://www.avantlink.com/terms), and Shareasale’s payment terms and conditions for details for Sponsee payments (https://account.shareasale.com/agreement.cfm). Tortuga is not responsible for any delay or failure of payment on the part of AvantLink or Shareasale.

6. Intellectual Property
6.1. It is your responsibility to follow all relevant intellectual property and other laws that are applicable to your site. You must have express permission to use any person’s written content, an image, or any other copyrighted material.
6.2. Any content written by Tortuga that you want to use must be quoted with credit given to us.
6.3. You must get direct permission (by emailing the Participant Manager) to use any images from the Tortuga website. We have different agreements with different photographers and this will ensure that permission and credit are given in accordance with those agreements. If you do not obtain our permission first, and this causes any liability on behalf of Tortuga, you agree to indemnify Tortuga for all damages incurred as a result of breaching this Agreement.
6.4. You are permitted to use any Licensed Materials such as logos, trade names, trademarks, and other identifying material that we provide to you or authorize for you to use as long as you are in good standing of your respective Tortuga Participant Program. We grant you a non-exclusive, non-transferable, revocable license to (i) access our website through the links solely in accordance with the terms of this Agreement and (ii) solely in connection with such Links, to use the Tortuga trademark and logo and similar identifying material provided by us (collectively, the "Licensed Materials") as approved in advance by us. You may not alter, modify, or change the Licensed Materials in any way. You are only entitled to use the Licensed Materials while you are an Affiliate or Sponsor in good standing and in compliance with all of the terms of this Agreement. You shall not use the Licensed Materials for any purposes other than selling Tortuga Products. We reserve all of our rights in the Licensed Materials and your license to use such material is limited to the manner described herein. We may revoke your license at any time. If not previously revoked, this license shall immediately terminate upon the termination of your participation in the Participant Program. You grant to us a non-exclusive license to utilize your name, title, trademarks, and logos (the "Participant Trademarks") in any advertisement or other materials used to promote Tortuga and the Affiliate Program and/or Sponsor Program, provided that Tortuga’s use of the Participant Trademarks is not required and is at its sole discretion. This license shall terminate upon the termination of your participation in the Participant Program.
6.5. Both parties agree not to use the other’s proprietary materials in a disparaging, misleading, or obscene manner or that otherwise portrays the other in a negative light.
6.6. Except as permitted herein, you shall not and are not authorized to (i) use the Tortuga trademark, name or any of our other intellectual property without Tortuga’s express prior written permission; (ii) use Tortuga IP in a domain or website name, in any bids for keywords or Google Ads (or similar programs at other search engines), in any search engine advertising (paid or otherwise), in any metatags, Google Ads (or similar programs at other search engines), key words, advertising, search terms, code, or otherwise; (iii) act in any way that causes or creates or could cause or create any "initial interest confusion" over the use of Tortuga IP on the internet or in any search engine advertising. Your use of Tortuga IP in any manner, other than as expressly permitted hereunder shall constitute unlawful infringement of Tortuga’s intellectual property rights, and may subject you to claims for damages (including potential treble damages for knowing or willful infringement), and the obligation to pay Tortuga’s legal fees and costs in connection with any action or proceeding in which Tortuga seeks to enforce its rights under this agreement or with regard to any of Tortuga’s intellectual property rights.

7. Non-exclusivity
7.1. This Agreement does not create an exclusive agreement between us. Tortuga has the right to recommend and work with similar parties and you have the right to recommend similar products and services of other parties.

8. Spamming & Misrepresentation
8.1. Spamming is unacceptable and could cause damage to our name. Spamming includes the use of unsolicited commercial email, unwelcome posts to non-commercial sites, cross-posting to multiple non-commercial sites at once, or frequent, aggressive postings to third-party sites. You are welcome to post to non-commercial sites if that site specifically allows commercial postings so long as you clearly represent yourself and your website as independent from Tortuga.
8.2. Misrepresenting your identity, domain name, or return email address is not allowed.
8.3. You may use mailings to promote Tortuga as long as the recipient is already a consenting subscriber of your mailing list and recipients have the option within the email to unsubscribe from future mailings.
8.4. Spamming or misrepresentation are grounds for immediate termination of this Agreement and your participation in the Tortuga Participant Program. Any pending balances owed to you will not be paid if your account is terminated due to spamming or misrepresentation.
8.5. Affiliates and Sponsors are obligated to abide by AvantLink’s anti-spam and anti-parasite rules.
8.6. It is the intent of Tortuga to treat all of our customers fairly. Accordingly, we require all Tortuga Participants to comply with applicable laws, regulations and guidelines concerning advertising and marketing, including without limitation, the Federal Trade Commission (FTC) Endorsement Guides, which require that material connections between advertisers and endorsers be disclosed. This means that all Participants who provide an endorsement of Tortuga’s Products must prominently disclose the fact that you receive compensation for Referred Customers. It is Participant’s obligation to ensure that you are in compliance with FTC regulations or guides, and failure to do so is cause for termination of this Agreement.

9. Termination
9.1. Either you or we reserve the right to end this Agreement at any time, with or without cause, and with no written notice further than cancelling our association within the AvantLink network. In addition, any breach of this Agreement by you will terminate this Agreement immediately.
9.2. Affiliate or Sponsor status may be re-evaluated if:
9.2.1. You design and/or sell competitive products
9.2.2. Your referrals fall below $500 in any 6 month period
9.2.3. You repeatedly fail to respond by email
9.2.4. You stop promoting Tortuga
9.2.5. Any aspect of your website changes.
9.3. Other possible reasons for suspension or termination of your Participant status may include, but are not limited to:
9.3.1. Spamming
9.3.2. Misrepresentation, false claims, or inappropriate advertisements
9.3.3. Failure to disclose the affiliate relationship between us for any promotion under any applicable government laws.
9.3.4. Distributing or promoting coupons assigned to other affiliates, created in partnership with other entities, or promoting discounts as received through our customer referral program.
9.3.5. Fraudulent activity such as self-referrals and fraudulent transactions.


10. Modification
10.1. At our sole discretion, we may modify any of the terms and conditions in this Agreement as we see fit. You will be notified of significant changes by email. If any modification is unacceptable to you, you may end this Agreement. Your continued participation in the Tortuga Participant Program following notification of the changes will create a binding agreement and acceptance of the changes.


11. Representations & Warranties
11.1. You represent and warrant that this Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms. By participating in the Participant Program, you are agreeing to be bound by this Agreement.
11.2. You have the full capacity and authority to enter into the terms and conditions of this Agreement and to perform your obligations written in this Agreement without the approval or consent of another party.
11.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.


12. Limitations of Liability
12.1. We will not be liable for any indirect, special, incidental, or consequential damages, or any loss of revenue, profits, or data, arising in connection with this agreement or the participant program (including without limitation loss of revenue, goodwill, anticipated profits, or lost business) due to participant tracking failures, loss of database files, or any results of intents of harm to our program or our website(s), even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this agreement and the affiliate program will not exceed the total commissions paid or payable to you under this agreement during the three (3) month period immediately preceding the event giving rise to such liability.
12.2. Tortuga makes no expressed or implied warranties with respect to the Participant Program or the memberships or products sold by Tortuga. We make no claim that the operation of the Affiliate Program, the Sponsor Program or our website(s) will be error-free and we will not be liable for any interruptions or errors.
12.3. Force Majeure: Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; natural disaster; electrical, internet, or telecommunication outage not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party.

13. Indemnification
13.1. You shall indemnify and hold harmless Tortuga and its affiliates and subsidiaries, and their directors, officers, employees, agents, shareholders, partners, members, successors and other owners, against any and all claims, actions, demands, liabilities, losses, damages, fines, claims, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) arising out of any claims sustained in connection with this Agreement due to your negligence, misrepresentation, failure to disclose, breach of this Agreement, or intentional misconduct.

14. Governing Law
14.1. This Agreement shall be governed by and construed in accordance with the last of the United States and the State of California. Any dispute arising under or related to this Agreement in any way shall be adjudicated exclusively in the state courts located in Contra Costa County, California.
14.2. In the event of litigation to enforce any provision of this Agreement, the prevailing party will be entitled to recover from the other party its costs and fees, including reasonable legal fees.

15. Confidentiality
15.1. Any confidential information, including but not limited to business, technical, financial, and customer information, disclosed by one party to the other during the negotiation or effective term of this Agreement will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written consent of the disclosing party. Confidential information includes any information disclosed in a private setting including but not limited to emails and phone calls and need not be marked as “confidential” to be treated as such.

16. Miscellaneous
16.1. You agree that you are an independent contractor and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Tortuga. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement that would reasonably contradict anything in this section.
16.2. Neither party may assign its rights or obligations under this Agreement to any entity or party except to a party who obtains the business or assets of a third party.
16.3. You may not amend or waive any provision of this Agreement unless requested of and approved by us in writing.
16.4. This Agreement represents the entire agreement between us and you and shall supersede all prior agreements and communications between us.
16.5. The headings and titles within this Agreement are included for convenience only and shall not limit or otherwise impact the terms of this Agreement.
16.6. 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.

17. Electronic Signature
17.1. This Agreement is a digital contract that sets out the legally binding terms of your participation in the Tortuga Affiliate Program and Tortuga Sponsor Program. By completing the Tortuga application process, you indicate your acceptance of this Agreement and all of the terms and conditions herein. This action creates an electronic signature and has the same legal force and effect as a handwritten signature.