Affiliate agreement

This Agreement contains the complete terms and conditions which you (the “Affiliate”) agree to be bound by as a participant in the BusinessMagi (hereafter herein “Business”) affiliate program (the “Program”) for “The W.A.A.R. Report” and any associated “Creative Words” upgrade (hereafter to be jointly referred to as the “Product”) and which shall apply once your application to participate in the Program has been accepted by Business.

Business shall be defined herein as the person, entity or website that offers the affiliate program or affiliate relationship to an Affiliate.  Business herein is sometimes referred to as “our” our “ours”.

Affiliate shall be defined herein as a person or entity that has a relationship with the Business wherein the Affiliate offers for sale the product of the Business under specific terms and conditions contained herein.  In this Agreement, Affiliate may be referred to as “You,” “you,” “Affiliate” or “Affiliate.”

For the avoidance of doubt, this definition of Affiliate also extends to any Customer of Business who promotes Business in return for any form of commission. Similarly, such a relationship between customer and Business will be governed by this Agreement.

Customer is defined as anyone who has purchased the Product or received a review copy from Business.

Product shall be defined here as anything sold or disbursed pursuant to the Business/Affiliate agreement and as further set forth herein.

RECITALS

1. Business represents to the Affiliate that it 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 all future versions thereof) currently entitled the “Product” as set forth in the separate section below titled “Product”.  Product refers to the singular as well as the plural.  If Business is not the owner of all rights expressed above, Business asserts that it has the absolute right to represent those interests under license or other agreement with the true owner.

2.  Business intends to sell and distribute the Product electronically and/or physically using, in part, third party affiliates who will establish links to Business’s Web site where the Product will be offered for sale.

3.  If, in the future, Business sells and distributes any other goods or services through the Internet, it may offer to its Affiliates at that time the opportunity to become Vendor-Affiliates of such goods or services. Such goods or services shall then be included in the defined term “Product” and this Agreement shall then also apply to such goods or services.  However, the Business shall not be required to offer it’s complete line of products via this affiliate program or it may require other agreements and/or fees.

PARTICIPATION, REPRESENTATIONS AND WARRANTIES

4. Business hereby grants to the Affiliate the non-exclusive and revocable right to market and advertise the Product and to establish links to Business’s Web sites, in accordance with this Agreement.

5.  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 Business’s site at its sole cost and expense.

6.  The Affiliate represents and warrants to Business, 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.

AFFILIATE SALES COMMISSIONS

7.  If, as a result of a direct advertising effort of the Affiliate, a referred customer of the Affiliate or of a member of the Affiliate’s team (as defined) orders and pays for the Product or other goods or services sold by Business in the future, Business shall pay the Affiliate a sales commission determined in accordance with the Affiliate Compensation Schedule which is found near the end of 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”) or charge backs.

8.  AN AFFILIATE SHALL NOT RECEIVE A SALES COMMISSION FOR A PRODUCT PURCHASE MADE, DIRECTLY OR INDIRECTLY, BY OR FOR HIMSELF/HERSELF. Business, in its sole and complete discretion may create multiple level compensation plans. In the case of a multiple level compensation plan, an Affiliate’s Team means all Affiliates introduced to the Program by the Affiliate in question. In the event that more than one Affiliate claims the same commission for a sale, Business shall select the Affiliate which shall receive the compensation at its sole discretion.

9.   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.

10.  Business 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 number of potential customers referred by it and an estimate of the Sales Commission owing to it. Business shall, on or about the 1st of each month, mail or otherwise transmit the Sales Commission representing the amount payable for the sales completed in the previous month which are outside of the guarantee period of 30 days. Sales statistics of the referred transactions, supporting the amount paid, shall be made available on the Affiliate’s private site. Affiliates will receive the Sales Commission in U.S. funds. For administrative convenience and if the Sales Commission is less than amount fifty ($50) dollars in a month, Business reserves the right to mail during a future month when the total balance due is fifty ($50) dollars or greater. The Affiliate may receive the Sales Commission where the amount in question is less than fifty ($50) dollars by advising Business and assuming Business’s cost of making the payment. If an Affiliate maintains a balance of less than twenty ($20) 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.

11.  Upon written request and at the Affiliate’s expense, the Affiliate may cause Business’s books and records to be examined by an independent firm of accountants to ensure compliance with this Agreement. In the event that the examination reveals an underpayment error of more than 5%, the underpayment and the reasonable cost of the examination to a maximum of two hundred ($200) dollars shall be paid by Business. If the examination does not reveal an underpayment as aforesaid, the Affiliate shall compensate Business for its reasonable cost to a maximum of two hundred ($200) dollars. The firm of accountants utilized shall limit the scope of their examination to the relevant information regarding the Sales Commission and shall keep private and confidential all information obtained in the course of the said examination.  However, the right of examination is limited to 180 days from the date of claimed underpayment.  In other words, Business shall not be required to keep records indefinitely.  Affiliates who have a suspicion of underpayment should request an accounting immediately.

12.   You must supply Business with a current postal address, e-mail address, and phone number so that we may pay any commissions due promptly. It is your responsibility to keep this information updated. If you fail to keep this information updated, then we will not be able to make proper payments to you. These programs are Internet-based and use email and Internet web pages as communication devices. All Affiliates must have a valid email address and must notify Business if that address changes. Any information posted on our web site or emailed to the Affiliate’s email address of record is considered delivered to the Affiliate.

AFFILIATE SITES AND THEIR PROMOTION METHODS

13.   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 e-mail and shall not send e-mail 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 Web site any material that may be considered to be harassing, libelous, defamatory, legally obscene or pornographic, threatening, abusive or hateful.

If the Affiliate is using the sales material of Business, then Business remains responsible for the content.  However, Affiliates are charged with reasonable due diligence.  While Business cannot shirk its ultimate responsibility for content if the Affiliate uses copy prepared by Business, Affiliate remains fully liable for what it posts.  Keep this in mind as you become an affiliate.  You are charged with using common sense and performing “due diligence” on the Business – and disconnecting from it fast if anything “fishy” is going on.

14.   Business 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 Business. 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.

If the Affiliate website uses some copyright material of Business (with permission) but adds original content, then a separate copyright notice should be added by Affiliate to cover his own additions.

15.   Business shall have the right to monitor the Affiliate’s Web site at any time and from time to time to determine if it is in compliance with the terms and conditions on this Agreement.

16.  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 Business’s products, services or affiliate program. Predatory advertising is defined as any method that creates or overlays links or banners on web sites, spawns browser windows, or any method invented to generate traffic from a web site without that web site 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 web site dependent. Participation in predatory advertising programs will be cause for the Affiliate’s immediate termination and or litigations for damages.

17.  You agree to abide by the rules of the U.S. Federal Trade Commission as currently existing and as updated from time to time by federal authorities, and agree that any failure to abide by such rules constitutes proper grounds for immediate suspension or termination in the sole discretion of Business. You understand that earnings claims may not be posted on any page linked to any Business website. You acknowledge that an earnings claim is deceptive or misleading if it is false or there is no reasonable basis for making such a claim.

18.  You agree to comply with the laws of the various countries regarding the use and delivery of email messages. In particular, you agree to comply with the provisions of the United States CAN-SPAM Act of 2003, as amended from time to time. You understand that your failure to comply with these laws will be grounds for the immediate termination of your status as an affiliate, in the sole discretion of Business, and that all your commissions will be immediately forfeited. Further, Business, its officers and employees will cooperate fully with all governments and their agencies and have the right to release any and all information deemed necessary by Business.

19.  You agree that any promotional emails you send, or cause to be sent, to promote any of the Business products or services, or providing any mention or reference to any of them, will meet the following standards:

A. E-mails shall not contain or include a falsified sender domain name or non-responsive IP address;

B. E-mails shall not contain or include a false or misleading subject line that attempts to disguise or conceal the content of the e-mail;

C. All e-mails shall contain or include valid and responsive contact information of the sender, list manager or list owner; this includes your legal address and optionally your phone number.  All commercial emails must contain a “opt-out” method: a link to an opt-out webpage is best.  But it is still legal to ask recipients to put UNSUBSCRIBE in the subject line and email their request.  But some way that works MUST be included.

D. No e-mails shall be sent for the purpose (but not necessarily the sole purpose) of harvesting the e-mail addresses in order to send future unsolicited e-mails;

E. You shall be permitted to use brokers or third parties to deliver e-mails only if each acts in compliance with the terms of this Agreement, agrees to fully and completely indemnify you and Business for all damages arising from their breach of any of the obligations set forth herein and you have the ability to terminate distribution with or procurement by any such third party on not more than 24 hours notice. You shall be solely responsible for any breach of these obligations by any such third party;

F. Every e-mail shall contain a functioning return electronic mail address or other Internet-based mechanism clearly displayed that a recipient may use to submit in a manner specified in the message a reply electronic mail message or other form of Internet-based communication requesting not to receive future e-mail messages from you, a so-called “UNSUBSCRIBE” feature;

G. Every e-mail sent by you or by any broker on your behalf shall include a valid postal address of the entity principally responsible for sending the e-mail communication and such other parties as may be necessary in order to remain in compliance with applicable laws (post boxes are legal addresses),

H. You shall distribute such e-mails only to those recipients who have expressly agreed directly with you, in advance, to receive such transmissions from you (i.e., “opted-in”)

I. You shall process any and all opt-out requests within 5 business days, or less of the request and shall maintain electronic or tangible records evidencing the removal of such e-mails from your lists for verification.

J. Unless otherwise directed by Business in writing, you shall not use our names (including any abbreviation thereof) or any trademark, trade name, service mark, logo or other Business identifying information in the originating or return e-mail address line, header or subject line of any e-mail transmission and that all e-mail transmissions shall contain language in the body and both the “from” line as well as the “re:” line that clearly announces that the offer embedded in the e-mail is being sent by you for the benefit of your users.

K. Business will review and post each advertisement (including all graphics and copy) of e-mail message prior to distribution and you shall not modify such message without the prior written consent of Business.

L. Upon request by Business, you shall promptly provide us with (i) a point of contact at your office for handling customer complaints received by us and (ii) information regarding consumer responses to the e-mail distribution and any and all records verifying that recipients consented to receive the e-mail transmissions in question

M. Upon notice from Business to you requesting that you terminate e-mail solicitations of one or more of our advertisements, you shall immediately stop sending any e-mail solicitations promoting such advertisements.

N. In the event of any breach of this agreement by you or and third party broker or licensee, Business shall, in addition to all other remedies available to it, have the right to refuse to make any payments to you as a result of your promotional efforts that cannot be verified by you as having complied with the terms and conditions hereof.

O. You shall indemnify, defend and hold Business, its officers, directors, shareholders and employees harmless from any cost, expense or liability arising out of any breach or alleged breach of your obligations under any part of this agreement.

PROCESSING AND PAYMENT

20.   Business 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, Business 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.

LICENSES AND GOODWILL PRESERVATION

21.   Business 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 Business on any site where the Product is mentioned.

22.   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 Business. 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 Business so as to enable Business to defend, settle or otherwise resolve the claim or allegation in a manner that Business deems appropriate in its sole discretion.

23.   Customers who purchase the Product through the Program shall be deemed to be customers of Business, and the Affiliate shall refer all Product-related questions, requests or queries to Business. Business shall have the right to utilize the Affiliate’s name and logo to advertise, market, promote and publicize in any manner the Product.

24.  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 Business.

RELATIONSHIP OF PARTIES

25.  While the parties intend to 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 Business. 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 Business nor shall it hold itself out as being an agent of Business or as having apparent authority to contract for or bind Business.

LIMITATION OF LIABILITY

26.   In no event shall Business 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. Business shall not be liable for any damages if, for any reason whatsoever, its Web site fails or is non-operational for any reason whatsoever.

TERM OF THE AGREEMENT

27.  The term of this Agreement shall be until revoked by either party.

WITHHOLDING OF PAYMENT

28.  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 Business, it shall automatically forfeit the Sales Commission then receivable or receivable at any time in the future. Business shall, in addition, have the right to terminate this Agreement and shall retain all other rights and remedies available to it at law.

MODIFICATION AND APPLICATION OF AGREEMENT

29.  Business 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 Web site. If any modification to this Agreement is not acceptable to the Affiliate, its only recourse is to terminate this Agreement. The Affiliates who continue 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, that is formal execution of a new Agreement is not necessary: continued activity shall constitute full acceptance.

30.  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.

31.  The Affiliate shall not assign, transfer or convey this Agreement or any part thereof to any other party without Business’s consent but consent shall not be unreasonably refused.

32.  This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, legatees, executors, legal representatives, successors and assigns.

33.  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 Business’s Web site(s);
  • E-mail communications between parties or from any of their employees, officers or directors;
  • Information in the Product, or in marketing/informational documents.

RESPONSIBILITY TO INVESTIGATE

34.   The Affiliate acknowledges that it has reviewed this Agreement and agrees to all its terms and conditions. The Affiliate understands that Business may at any time solicit customer referrals on terms that may differ from those contained in this Agreement or operate Web sites that are similar to or compete with the Affiliate’s Web site. 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.

MISCELLANEOUS

35.  Any reference in this Agreement to gender includes all genders and words importing the singular number only shall include the plural and vice versa.

36.  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.

37.  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.

38.  Time shall be of essence of this Agreement.

39.  All notices, requests and other communications shall be deemed to have been received when posted by Business on its Web site and Affiliate agrees to accept the responsibility for routinely reviewing the posted Agreement for changes that could affect Affiliate. It shall also be deemed to have been received on the next business day if transmitted by Telecopier, e-mail or any other form of electronic mail to the last known electronic address of the intended recipient.  That is, the burden, as well as burden of proof, is on the Affiliate to update all contact information with Business.

DISPUTE, VENUE, CHANGE OF VENUE

40.   If a dispute arises under this agreement, Business and Affiliate agree to first try to resolve it with the help of a mutually agreed-upon mediator in the following location: Edinburgh, UK. Any costs and fees other than attorney fees associated with the mediation will be shared equally by each of us.  However, Business reserves the right to change the venue of the mediation by simple notice to the affiliate via email to the address provided by the Affiliate.  Affiliate changing postal or e-address is charged with proof that they have notified Business.

41.  If it proves impossible to arrive at a mutually satisfactory solution through mediation, Business and Affiliate agree to submit the dispute to binding arbitration at the following location: Edinburgh, UK, under the rules of the Arbitration Code, as provided by The Chartered Institute of Arbitrators. Judgement upon the award rendered by the arbitration may be entered in any court with jurisdiction to do so.

AFFILIATE COMPENSATION SCHEDULE

42.  Business retains the right to have different compensation schedules with different affiliates.  The following is the affiliate compensation schedule offered to the applying affiliate:

43.  It is the obligation of the Affiliate to make sure that his affiliate links are correct in his promotional material since the system is automatic and Business cannot re-create what may or may not have been sold by the Affiliate unless it comes through the automated system using the Affiliate ID provided to you upon acceptance of your application.  If you have questions or concerns, contact Business immediately.

44.  The compensation schedule offered to the applying affiliate is:   50% of the sales price.

PRODUCT(S)

  1. The WAAR Report priced at $17 before taxes
  2. Creative Words priced at $37 before taxes
  3. Creative Words – The Pitch Edition priced at $27 before taxes
  4. Variations of above may exist for limited time promotions

* Please note all prices are correct at the time of writing (9th October 2012), however we reserve the right to change any and all pricing at any time and without notice.

45.  The product consists of PDF documents. Depending on the product variant sold the purchased ‘package’ may also include audio files (mp3) and actions/exercise handouts.

TERMINATION

46.  Business reserves the right to cancel the Agreement with Affiliate for any reason, including but not limited to, inactivity.  Business 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 twenty (20%) percent of Sales Commission of all Affiliates in the calendar year in question, by giving the Affiliate ninety (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 Business.

47.   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 Business. Pending the completion of the foregoing, Business may hold in abeyance any Sales Commission due.

48.  This Affiliate Agreement may be terminated by either party without cause by simple notification via the email addresses by which the parties routinely contact each other or by mail or courier.  Business will terminate this Agreement if Affiliate, or Affiliate’s website, promotes violence; hate; uses illegal spam in any fashion; or uses marketing techniques that are inconsistent with the image which Business wishes associated with its product.  Business may simply “disconnect” Affiliate’s identification number and cease doing business with Affiliate for any reason or cause, without previous notification.

AGREEMENT BINDING PARTIES HERETO

49.  Agreement between Business and Affiliate shall be signified by Affiliate applying to be an affiliate which will be proof that Affiliate agrees to the terms herein; and Business accepting the application and providing an affiliate identification number.

COPYRIGHT AND LICENSE 

This “Affiliate Agreement” is copyrighted © 2002 www.InternetLawCompliance.com and is fully licensed for use by this website.  If you wish to lawfully use this Affiliate Agreement on your website, visit their website at http://www.internetlawcompliance.com.