|Affiliate Agreement for the TonyMasesInnerCircle.com Affiliate Program
This agreement contains the complete terms and conditions which you (the "affiliate") agree to be bound by as a participant in the TonyMasesInnerCircle.com ("TonyMasesInnerCircle.com") affiliate program (the "program") and which shall apply once your application to participate in the program has been accepted by TonyMasesInnerCircle.com.
Article 1. Introduction
1.01 TonyMasesInnerCircle.com is the sole and exclusive owner of all right, title, and interest including all intellectual property rights in and to the contents, logos, style, design, look and feel, trade names, trademarks to all literary works, computer software programs, products, goods and services (including and all future versions thereof) currently entitled Tony Mase's Inner Circle ("product"). Product refers to the singular as well as the plural.
1.02 TonyMasesInnerCircle.com intends to sell and distribute the product electronically and/or physically using, in part, third party affiliates who will establish links to TonyMasesInnerCircle.com's website where the product will be offered for sale.
1.03 If, in the future, TonyMasesInnerCircle.com sells and distributes any other goods or services through the Internet, it shall offer to its affiliates at that time the opportunity to become vendor-affiliates of such goods or services. Such goods or services shall be included in the defined term "product" and this agreement shall then also apply to such goods or services.
Article 2. Participation & Representation
2.01 TonyMasesInnerCircle.com hereby grants to the affiliate the non-exclusive and revocable right to market and advertise the product and to establish links to TonyMasesInnerCircle.com's website, in accordance with this agreement.
2.02 The affiliate shall diligently and continuously market and advertise the product through the Internet and shall develop, operate, and maintain links from its site to TonyMasesInnerCircle.com's site at its sole cost and expense.
2.03 The affiliate represents and warrants to TonyMasesInnerCircle.com that this agreement has been duly and validly executed and constitutes and shall continue to constitute a legal obligation, enforceable in accordance with its terms.
Article 3. Affiliate Sales Commissions
3.01 If, as a result of a direct advertising effort of the affiliate, a referred customer of the affiliate orders and pays for the product or other goods or services sold by TonyMasesInnerCircle.com in the future, TonyMasesInnerCircle.com shall pay the affiliate a sales commission determined in accordance with the affiliate compensation schedule which follows this agreement and which forms an integral part of it. The commission is based upon the paid selling price of the purchased goods or services before tax and excluding returns ("sales commission").
3.02 AN AFFILIATE SHALL NOT RECEIVE A SALES COMMISSION FOR A PRODUCT PURCHASE MADE, DIRECTLY OR INDIRECTLY, BY HIMSELF/HERSELF.
3.03 In the event that more than one affiliate claims the same commission for a sale, TonyMasesInnerCircle.com shall select the affiliate which shall receive the compensation.
3.04 The affiliate shall be responsible for all taxes and other similar levies applicable to the sales commission pursuant to any law or regulation. The affiliate shall report the sales commission to its taxation authorities as required by law.
3.05 TonyMasesInnerCircle.com shall post and maintain, on a current basis, a designated password-protected web page for each affiliate showing the affiliate's participation in the program including the number of potential customers referred by it and an estimate of the sales commission owing to it. TonyMasesInnerCircle.com shall, on or about the 15th of each month, transmit via PayPal the sales commission representing the amount payable for the sales completed in the previous month. Sales statistics of the referred transactions, supporting the amount paid, shall be made available on the affiliate's private page. Affiliates will receive the sales commission in U.S. Dollars. For administrative convenience, if the sales commission is less than 15 dollars in a month, it shall be transmitted during a future month. The affiliate may receive the sales commission where the amount in question is less than 15 dollars by advising TonyMasesInnerCircle.com and assuming TonyMasesInnerCircle.com's cost of making the payment. If an affiliate maintains a balance of less than fifteen dollars of sales commission in a period of 12 consecutive months without asking for payment during that time, the sales commission shall be forfeited. Sales commission overpayments may be deducted from future payments or shall be reimbursed by the affiliate.
Article 4. Affiliate Sites and Promotion Methods
4.01 The affiliate shall be solely responsible for all materials that appear on its site. It shall strictly adhere to all applicable laws and regulations in conducting its business and more specifically in marketing and advertising the product. 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 it discontinue such communication, nor shall it send or display on its website any material that may be considered to be harassing, libelous, defamatory, legally obscene or pornographic, threatening, abusive, or hateful.
4.02 TonyMasesInnerCircle.com shall have the right, but not the obligation, to pre-approve the graphics and logos used on any website which is linked to its site. Furthermore, the affiliate shall annotate its site with appropriate copyright, trademark, and other similar notices, which shall be approved by TonyMasesInnerCircle.com. If the affiliate specifies a price point for the product in its marketing and advertising, it shall ensure that it is updated regularly to reflect all price changes.
4.03 TonyMasesInnerCircle.com shall have the right to monitor the affiliate's website at any time and from time to time to determine if it is in compliance with the terms and conditions on this agreement.
4.04 The affiliate agrees not to use any predatory advertising methods designed to generate traffic from sites that they have not contracted with in the online promotion of TonyMasesInnerCircle.com's 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 plugins 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.
Article 5. Order Processing
5.01 TonyMasesInnerCircle.com shall establish the procedures of selling the product including, without limitation, the placement of orders, pricing, payment terms, processing, delivery, returns, etc. Without restricting the generality of the foregoing, TonyMasesInnerCircle.com shall have the right to cancel, suspend, or delay any order for the product, including the right to discontinue selling the product at any time.
Article 6. Licenses and Goodwill Preservation
6.01 TonyMasesInnerCircle.com shall have the right, but not the obligation, to approve, in its sole and absolute discretion and with due regard to the protection and preservation of the goodwill of the product any promotional, advertising, or marketing item used by the affiliate. The affiliate shall make all deletions and modifications suggested by TonyMasesInnerCircle.com on any site where the product is mentioned.
6.02 The affiliate shall acknowledge and clearly identify and respect that all proprietary information, trademarks, copyrights, and all other similar rights in and arising out of the product are, and shall continue to be, the exclusive property of TonyMasesInnerCircle.com. In the event the affiliate learns of any claim or allegation that the product infringes upon or violates any intellectual property or proprietary rights of a third party, or contains any unlawful, libelous, or untrue statement, it shall immediately notify TonyMasesInnerCircle.com so as to enable TonyMasesInnerCircle.com to defend, settle, or otherwise resolve the claim or allegation in a manner that TonyMasesInnerCircle.com deems appropriate in its sole discretion.
6.03 Customers who purchase the product through the program shall be deemed to be customers of TonyMasesInnerCircle.com, and the affiliate shall refer all product-related questions, requests, or queries to TonyMasesInnerCircle.com.
6.04 The affiliate shall not make or give to a customer or a potential customer any warranty, representation, or other statement concerning the product without first obtaining the written consent of TonyMasesInnerCircle.com.
Article 7. Relationship of Parties
7.01 While the parties shall work hand-in-hand for the benefit of both, 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 TonyMasesInnerCircle.com. 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 TonyMasesInnerCircle.com nor shall it hold itself out as being an agent of TonyMasesInnerCircle.com or as having apparent authority to contract for or bind TonyMasesInnerCircle.com.
Article 8. Limitation of Liability
8.01 In no event shall TonyMasesInnerCircle.com be liable for special, incidental, consequential, or punitive damages, including, without limitation, any damages resulting from loss of profits, loss of business, or loss of goodwill arising out of or in connection with this agreement or the product, whether or not such party has been advised of the possibility of such damages. TonyMasesInnerCircle.com shall not be liable for any damages if, for any reason whatsoever, its website fails or is non-operational for any reason whatsoever.
Article 9. Term of the Agreement
9.01 In the event that the affiliate breaches any of the undertakings or obligations set forth in this agreement and does not remedy same within 7 days notice from TonyMasesInnerCircle.com, it shall automatically forfeit the sales commission then receivable or receivable at any time in the future. TonyMasesInnerCircle.com shall, in addition, have the right to terminate this agreement and shall retain all other rights and remedies available to it at law or in equity.
9.02 This agreement will automatically terminate if the affiliate ceases to actively market the product for a period of 90 days. TonyMasesInnerCircle.com shall have the right, but not the obligation, to terminate this agreement with an affiliate whose sales commission in a calendar year was in the bottom 20 percent of sales commissions of all affiliates in the calendar year in question, by giving the affiliate 90 days notice of termination. In such cases the sales commission owing, representing the sums earned, shall be paid even after termination of this agreement. The affiliate shall have the right to terminate this agreement at any time upon written notice to TonyMasesInnerCircle.com.
9.03 As soon as notice of termination of this agreement is given or upon termination as herein provided, the affiliate shall immediately cease its marketing and advertising of the product and shall forthwith eliminate all mention and references to the product and all links to TonyMasesInnerCircle.com. Pending the completion of the foregoing, TonyMasesInnerCircle.com may hold in abeyance the sales commission.
Article 10. Modification and Application of Agreement
10.01 TonyMasesInnerCircle.com may, in good faith, modify any of the terms and conditions contained in this agreement (including the affiliate compensation schedule), at any time and in its sole discretion, by posting a change notice or a new agreement on its website. If any modification to this agreement is not acceptable to the affiliate, its only recourse is to terminate this agreement. The affiliates continued participation in the program following the said posting of a change notice or new agreement shall constitute binding acceptance by the affiliate of the change.
10.02 If any of the provisions of this agreement are determined by a court to be unenforceable, they shall be severed from this agreement, and the remaining provisions shall remain in full force and effect.
10.03 The affiliate shall not assign, transfer, or convey this agreement or any part thereof to any other party without TonyMasesInnerCircle.com's consent which shall not be unreasonably refused.
10.04 This agreement shall endure to the benefit of and be binding upon the parties hereto and their respective heirs, legatees, executors, legal representatives, successors, and assigns.
10.05 This agreement represents the entire agreement between the parties and supersedes all prior negotiations, agreements, and understandings, if any. For greater certainty but without restricting the aforementioned, information contained in any of the following shall not form part of this agreement, namely:
- Descriptions of the program (including the descriptions of sales commission payable to the affiliates) on TonyMasesInnerCircle.com's website(s);
- Email communications from TonyMasesInnerCircle.com or from any of its employees, officers, or directors;
- Information in the product, or in marketing/informational documents.
Article 11. Independent Investigation
11.01 The affiliate acknowledges that it has reviewed this agreement and agrees to all its terms and conditions. The affiliate understands that TonyMasesInnerCircle.com may at any time solicit customer referrals on terms that may differ from those contained in this agreement or operate websites that are similar to or compete with the affiliate's website. The affiliate has independently evaluated the desirability of participating in the program and is not relying on any representation, guarantee, or statement other than as set forth in this agreement.
Article 12. Miscellaneous Provisions
12.01 Any reference in this agreement to gender includes all genders and words importing the singular number only shall include the plural and vice versa.
12.02 The insertion of headings and the division of this agreement into articles and sections are for convenience reference only and are not to affect its interpretation.
12.03 Each of the parties hereto covenants and agrees that it shall execute and deliver such additional agreements and documents and do such acts and things as may be reasonably necessary fully and effectually to carry out the intent and purpose of this agreement.
12.04 Time shall be of essence of this agreement.
12.05 All notices, requests, and other communications shall be deemed to have been received when posted by TonyMasesInnerCircle.com on its website. It shall also be deemed to have been received on the next business day if transmitted by telecopier, email, or any other form of electronic mail to the last known electronic address of the intended recipient.
12.06 This agreement shall be governed by and interpreted in accordance with the laws of the State of Connecticut without regard to the conflicts of laws, rules, and principles thereof.
12.07 If a dispute arises under this agreement, we agree to first try to resolve it with the help of a mutually agreed-upon mediator in the following location: Meriden, Connecticut, USA. Any costs and fees other than attorney fees associated with the mediation will be shared equally by each of us.
12.08 If it proves impossible to arrive at a mutually satisfactory solution through mediation, we agree to submit the dispute to binding arbitration at the following location: Meriden, Connecticut, USA, under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitration may be entered in any court with jurisdiction to do so.
12.09 The parties have required that this agreement and related documents be drafted in English.
Article 13. Affiliation and Compensation Disclosures
13.01 As of December 1st, 2009, The Federal Trade Commission of the United States of America has set forth new guidelines for endorsements and testimonials, demanding that all endorsers and testimonial givers divulge the nature of their compensation and affiliation with the product, company, or manager.
13.02 Therefore, as part of this affiliate agreement, you agree to "clearly and conspicuously" divulge how you are monetarily compensated through your referral sales, and that you receive(d) any other compensation from, monetary or otherwise, as the case may be, whenever you put forth any endorsement or testimonial in any media with the purpose of endorsing our products or services with the intent to sell them to consumers.
13.03 You further agree to use only the promotional materials that have been sanctioned by TonyMasesInnerCircle.com and to take full responsibility for your own actions should you be investigated for not adhering to the Federal Trade Commission of the United States of America's new guidelines for endorsements and testimonials, and shall not hold TonyMasesInnerCircle.com responsible in any way for actions or use of promotional materials not sanctioned by TonyMasesInnerCircle.com.
13.04 You further agree that you have read and understand the new guidelines for endorsements and testimonials 16 CFR Part 255 (which can be found at http://www.ftc.gov/os/2009/10/091005endorsementguidesfnnotice.pdf) that the Federal Trade Commission of the United States of America has set forth and which go into effect on December 1st, 2009. And you also hereby agree to uphold ALL of the provisions contained in that document while endorsing or promoting products or services for Tony MasesInnerCircle.com.
13.05 Failure to do so may (at the sole discretion of TonyMasesInnerCircle.com) result in immediate termination of your affiliate account, and forfeiture of any commissions accrued.
Affiliate Compensation Schedule
TonyMasesInnerCircle.com sends out affiliate commission payments via PayPal in the amount of 50% on any initial enrollments and 50% on any monthly rebillings, on or about the 15th of every month, on all qualifying sales made between the first and last day of the previous month.
We will reject/terminate anyone who uses marketing techniques that...
Exploit sex to sell...
Are hateful in any way...
Are harassing or use spam in any way, shape, or form...
Are libelous or defamatory...
Are threatening or abusive...
Are illegal or on the borderline...
Violate the copyrights or trademarks of others, and/or...
Are in such poor taste that we do not want the association.