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Affiliate Agreement

MASTER AGREEMENT This Agreement contains the complete terms and conditions that apply to the participation of the undersigned entity (the "Affiliate")in the affiliate program (the "Affiliate Program") of Lumber Liquidators, Inc. (the "Merchant") and the establishment of links from Affiliate"s website (Affilaite"s Site") to one or more of Merchant"s websites ("Merchant"s Sites"). A. BACKGROUND 1. Affiliate and Merchant are each enrolled in The LinkShare Network(tm). 2. Affiliate and Merchant each desire to establish the general terms and conditions that shall govern the advertising and commission arrangements between Affiliate and Merchant which result from their participation in The LinkShare Network(tm). B. TERMS AND CONDITIONS In consideration of the promises set forth herein, the parties agree as follows: 1. Application to the Affiliate Program 1.1 Affiliate may submit a completed Affiliate Program application through The LinkShare Network to begin the enrollment process. Merchant will evaluate Affiliate"s application and promptly notify Affiliate of Affiliate"s acceptance or rejection. Merchant may reject Affiliate"s application if, in Merchant"s sole discretion, Merchant determines for any reason that Affiliate"s Site is unsuitable for the Affiliate Program, this includes but is not limited to, the inability to direct a reasonable amount of traffic by way of sales volume, clicks, and page views to Merchant"s Sites. Unsuitable sites include, without limitation, those that contain illegal, offensive, infringing or objectionable content. If Merchant rejects Affiliate"s application, Affiliate may reapply to the Affiliate Program at any time. However, Merchant may, at its discretion, permanently bar Affiliate from participation in the Affiliate Program if Affiliate"s Site or business is inconsistent with Merchant"s objectives or the operation of the Affiliate Program. If Merchant does, Merchant will inform Affiliate of Merchant"s decision. 2. Offers and Engagements. 2.1. From time to time, Merchant may post on The LinkShare Network(tm) offers to pay to other participants a specified commission in return for certain advertising services leading to a Qualifying Link (defined below). If such offers receive an identification number from The LinkShare Network(tm), they shall be deemed to be an "Offer" for purposes of this Agreement. The term "Offer" shall also include any counter-offers resulting from an Offer. 2.2. If an Offer made by one party is accepted by the other party in accordance with the Offer's terms via The LinkShare Network(tm), an "Engagement" will have been formed. Each Engagement shall have the same identification number as the original Offer that lead to the
Engagement and shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Engagement and the terms of this Agreement, the terms of the Engagement shall govern. 2.3. At any time prior to Affiliate providing a Qualifying Link, Merchant may, with or without notice, (a) change, suspend or discontinue any aspect of an Offer or an Engagement, or (b) remove, alter, or modify any graphic or banner ad submitted by Merchant for an Offer or an Engagement. Affiliate agrees to promptly implement any request from Merchant to remove, alter or modify any graphic or banner ad submitted by Merchant that is being used by Affiliate as part of an Engagement. 3. Affiliate's Responsibilities. 3.1. Affiliate will link Affiliate"s Site to areas within Merchant's Site using special URLs specified in the Engagement (the "Required URLs"). Affiliate may only post links directly from Affiliate"s site to Merchant"s Sites. Affiliate may post on its own site as many links to the Required URLs and the rest of Merchant's Sites as needed. Affiliate is prohibited from linking directly to Merchant's site in any way other than directly from Affiliate's Site (as indicated in Section 3.5 below). The position, prominence and nature of links on Affiliate"s Site shall comply with any requirements specified in the Engagement, but otherwise will be at Affiliate"s discretion. 3.2 Affiliate agrees not to, directly or indirectly, use or enable, in connection with Merchant"s Sites or Qualifying Link, or any related or affiliated website or link, any software applications, BHO"s (browser helper objects), or downloadable reminder services that pop-up, improperly redirect the user, interfere with online tracking or reporting, or any other actions deemed inappropriate by Merchant in its sole discretion (referred to herein as "Inappropriate Activities"). Any Inappropriate Activities, including but not limited to those described, shall be deemed a material breach of this Agreement and will result in termination from the Affiliate Program. Merchant also reserves the right to disallow commissions from any Inappropriate Activities. 3.3. Affiliate agrees not to make any representations, warranties or other statements concerning Merchant, Merchant's Sites, any of Merchant's products or services, or Merchant's site policies, except as expressly authorized by the Engagement. 3.4. Affiliate is responsible for notifying Merchant and The LinkShare Network of any malfunctioning of the Required URLs or other problems with Affiliate's participation in the Engagement. Merchant will respond promptly to all concerns upon Affiliate"s notification. 3.5. Affiliate is hereby prohibited and agrees to refrain from the following activities: (a) purchasing or bidding on any word, phrase, URL, trademark, or variation thereof which is derived from Merchant"s trademarks and service marks;
(b) purchasing or bidding on any word, phrase, URL, trademark, or variation thereof which causes click-throughs to land directly on any Merchant owned or operated URL; (c) bidding or, in any manner, appearing higher than Merchant for any search term in position 1-5 in any auction style pay-per-click advertising program; (d) incorporating, in any manner, on Affiliate"s Site(s) within the Title, Description or Keyword meta tags, any word, phrase, URL, trademark, or variation thereof which is derived from Merchant"s trademarks and service marks; and/or (e) incorporating, in any manner, on Affiliate"s Site(s) any coupon offer, source code offer, or code offer of any kind which utilizes special offers and codes created by Merchant if not made available to Affiliate within a Qualifying Link. 3.6. It will be considered a breach of this Agreement for Affiliate to utilize any promotion, promotion code, coupon or other promotional opportunity that is not specifically authored for the Affiliate Program and explicitly authorized for Affiliate"s use, and Merchant reserves the right to withhold or disallow payment for violations under this section. 3.7. Affiliate may not transmit any email, instant message or similar communication containing any material relating to Merchant, including without limitation, Merchant"s name, any Qualifying Link or Merchant trademark, product, image or logo, without Merchant"s prior written consent. In the event Merchant grants such consent, Affiliate agrees to: (a) submit all materials that are proposed to be sent in connection with any such campaign to Merchant for Merchant"s prior approval and (b) comply with industry best practices and all laws applicable to such communication, including the CAN-SPAM Act of 2003. 3.8. Affiliate may, under certain limited circumstances, send emails using content provided by Merchant if the following conditions are met: (a) The From line of each email must contain Affiliate's name. Merchant's name must not be included or referenced in any way in the From line. The email must be designed so as to be clear that it is being sent from Affiliate and not Merchant. Among other things, the Merchant content must be only one element of the email and the primary purpose of the email may not be the marketing of Merchant services. Only content provided by Merchant may be used in the emails; (b) Affiliate will create a process by which email recipients may opt-out of receiving future email from Affiliate. Affiliate must have the necessary processes in place to immediately remove such email address from its email list. Among other things, Affiliate must maintain a do not email list and every opt-out request must be placed on this list; (c) If Affiliate intends to generate email through a third party supplier, Affiliate must disclose the identity of that supplier to Merchant. Affiliate is responsible for all
emails generated on Affiliate"s behalf by a third party and such emails must comply with all requirements set forth in this Agreement; (d) Affiliate must submit for Merchant approval a marketing plan describing how many times and how often an email will be generated to any one email address. Affiliate is not permitted to send an email to any one email address more than once in any 14-day period. The entire content of each email that will be generated under an email campaign must be submitted to Merchant in advance for review and written approval; (e) Affiliate must comply in all respects with the CAN-SPAM Act of 2003. Among other things, Affiliate must have all lists scrubbed against its do not email list before any email campaign begins and at least every ten (10) days during each campaign; and (f) Merchant may request that Affiliate immediately stop any email campaign containing Merchant content or Merchant marks, for any reason, in its sole discretion. 3.9. Affiliate may only use the content provided by Merchant for purposes of creating a Qualifying Link. Content shall not be modified without Merchants prior written consent. Merchant will provide Affiliate with information needed to enable Affiliate to link to the Merchant Site and Affiliate agrees to cooperate fully with Merchant to maintain such links. Affiliate agrees not to make any representations, warranties or other statements concerning Merchant, the Merchant Site, any of Merchant's products or services, or Merchants Sites" policies, except as expressly authorized by the Engagement. 3.10. Affiliate agrees that all information including, without limitation, the terms of this agreement, and any and all business and financial information, pricing, sales, marketing and promotion information concerning Merchant or its corporate affiliates shall remain strictly confidential. Affiliate shall not use such information, directly or indirectly, for its own business purposes except as contemplated in the goals of The LinkShare Network. 4. Commissions. 4.1. Merchant agrees to pay Affiliate the commission specified in the Engagement if Merchant sells to a visitor to Merchant's Sites (a "Customer") a product or service that is the subject of the Engagement and if that Customer has accessed Merchant's Sites and purchased the product or service via a Qualifying Link; provided, however, that no commissions may be paid for amounts due to Affiliate in the event that Affiliate is found by Merchant to have violated Affiliate"s covenant not to compete contained in Section 3.5 herein or the Affiliate"s covenant not to engage in Inappropriate Activities contained in Section 3.2 herein. 4.2. A "Qualifying Link" is a link from Affiliate's site to Merchant's using one of the Required URLs or any other URL provided by Merchant for use in The LinkShare Network(tm) if it is the last link to Merchant's Sites that the Customer uses during a Session where a sale of a product or a service to Customer occurs. A "Session" is the period of time beginning from a Customer's initial contact with Merchant's Sites via a link from the Affiliate's
site and terminating when the Customer either returns to the Merchant's site via a link from a site other than Affiliate's site or the Engagement expires or is terminated. 4.3. Merchant shall have the sole right and responsibility for processing all orders made by Customers. Affiliate acknowledges that all agreements relating to sales to Customers shall be between Merchant and the Customer. 4.4. All determinations of Qualifying Links and whether a commission is payable will be made by The LinkShare Network(tm) and will be final and binding on both Merchant and Affiliate. Prices for the products will be set solely by Merchant in its discretion. 5. Ownership and Licenses. 5.1. 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. 5.2. Subject to Affiliate abiding by the provisions of this Agreement, Merchant grants Affiliate a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology, and other content (collectively, "IP") as designated in the Engagement or during the registration process in The LinkShare Network(tm), on Affiliate's Site solely for the purpose of creating links from Affiliate's Site to Merchant's Sites during Engagements. Except as expressly set forth in this Agreement or permitted by applicable law, Affiliate may not copy, distribute, modify, reverse engineer, or create derivative works from the same. Affiliate 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. Affiliate will not use or negligently or intentionally allow any third party to use the content provided by Merchant for any purpose other than to drive sales to the Merchant"s Sites. Merchant may revoke this license at any time bygiving affiliate written notice. 5.3. Affiliate grants Merchant 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 Merchant's Sites to Affiliate's Site. Merchant will remove such graphic or banner ad upon Affiliate's request. 6. Termination. 6.1. Either party may terminate any Engagement at any time by deleting their acceptance of the Engagement through The LinkShare Network(tm). Termination of an Engagement shall not terminate this Agreement or any other Engagement. 6.2. The terms of this Agreement will begin upon Merchant"s acceptance of Affiliate"s application to the Affiliate Program and will end when terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by giving the other party and The LinkShare Network at least five (5) day"s prior written notice of such
termination. Termination of this Agreement shall also terminate any outstanding Engagements. Upon termination, all Merchant-related content and links shall be promptly removed from Affiliate"s Site. Affiliate is only eligible to earn commissions on sales occurring during the term of this Agreement, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. In the event overpayment is made by Merchant, Affiliate agrees to promptly remit such excess payment upon notification by Merchant. Merchant may withhold Affiliate"s final payment for a reasonable time to ensure that the correct amount is paid. 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. 7. Representations. 7.1. Each party represents to the other that (a) it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby, and (b) any material which is provided to the other party and displayed on the other party's site will not (i) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, antidiscrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. 7.2 MERCHANT MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE AFFILIATE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE AFFILIATE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, MERCHANT MAKES NO REPRESENTATION THAT THE OPERATION OF ITS SITES WILL BE UNINTERRUPTED OR ERROR-FREE, AND MERCHANT WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. 8. Cross-Indemnification. 8.1. Each party hereby agrees to indemnify, defend and hold harmless the other party and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein. 9. LinkShare Required Provisions. 9.1. Merchant and Affiliate jointly and severally hereby agree to indemnify, defend, and hold harmless The LinkShare Network(tm) and LinkShare Corporation and its affiliates, officers, directors, employees and agents (collectively, "LinkShare") from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable
attorneys' fees) directly or indirectly arising from or relating to any Offer, Engagement, any other matter related to this Agreement or the subject matter hereof any dispute relating thereto. 9.2. The parties agree that LinkShare may rely on any data, notice, instruction or request furnished to LinkShare by either party which is reasonably believed by LinkShare to be genuine and to have been sent or presented by a person reasonably believed by LinkShare to be authorized to act on behalf of one of the parties. In the event of any dispute between the parties, the parties agree that to the extent the parties contact and involve LinkShare, LinkShare may consult with and use counsel of its own choice in connection with such dispute and the reasonable fees and disbursements of LinkShare's counsel shall be within the costs and disbursements covered by the indemnity specified in Section 9.1 above. 9.3. The parties acknowledge and agree that this Agreement and the Engagements are only made possible due to LinkShare and that the parties shall not, for the duration of this Agreement and for twenty-four (24) months thereafter, enter into any advertising, collaborations or other commercial arrangements with each other in connection with their sites on the World Wide Web except via The LinkShare Network(tm). 9.4. Merchant and Affiliate acknowledge and agree that the nature of the Product is such that in its normal operation, it may access and download elements of software data from resources which are external to the computer or device running the Product, such as Product enabled servers. Merchant and Affiliate acknowledge that LinkShare has not undertaken to provide such external resources or servers and specifically disclaims any representation or warranty as the availability, quality or performance of such resources or whether they may contain any defects which may affect the performance of the Product or Merchant or Affiliate's computer. LinkShare shall not be responsible for provision of any communications facilities or the costs associated with such communications. 9.5. Merchant and Affiliate agree that LinkShare is an intended third party beneficiary of this Agreement. 10. Limitation of Liability. 10.1. 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. 10.2. The parties agree that The LinkShare Network(tm) and LinkShare Corporation and its affiliates, officers, directors, employees and agents shall not be liable to either party for any direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages. 11. General. 11.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
11.2. The parties agree that any rule of interpretation or construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation, construction or enforcement of this Agreement. 11.3 This Agreement shall be construed in accordance with the laws of the Commonwealth of Virginia and any action relating to or arising from this Agreement shall be brought in the Circuit Court of Williamsburg/James City County, Virginia. 11.4 If Affiliate needs to send official correspondence relating to this Agreement to Merchant, it must be sent via registered mail to the attention of Merchant's legal department at Lumber Liquidators, Inc, 3000 John Deere Road, Toano, Virginia 23168. 11.5. This Agreement may be agreed to 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. 11.6 Neither party to this Agreement may waive or modify terms of the Agreement unless the waiver or modification is in writing and has been executed by both parties. Failure of either of the parties to enforce at any time any of the provisions of the Agreement, or to require at any time performance by the other party, shall in no way be construed as a waiver of such provision. No waiver of any breach of the Agreement shall be held to be a waiver of any other or subsequent breach. 11.7 In the event of any breach of this Agreement by Affiliate, Merchant shall be entitled to recover its costs, including reasonable attorneys" fees, incurred in connection with the enforcement of this Agreement. 11.8. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.

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