| Relationship of Parties
You and we are independent contractors, and nothing in this
Agreement will create any partnership, joint venture, agency,
franchise, sales representative, or employment relationship
between the parties. You will have no authority to make or
accept any offers or representations on our behalf. You will
not make any statement, whether on your site or otherwise,
that reasonably would contradict anything in this Section.
Our Responsibilities
We will be responsible for providing all information necessary
to allow you to make appropriate Links from Your Site to Our
Site. We will be solely responsible for processing every application
placed by a customer following a Link from Your Site, for
tracking the number and amount of sales generated by the Link
from Your Site, and for providing information to you regarding
sales statistics. Also, we will be responsible for credit
card authorizations, payment processing, cancellations, returns,
and related customer service, it being understood that such
activities shall be for our account.
Responsibility for Your Site
You will
be solely responsible for the development, operation, and
maintenance of your site and for all materials that appear
on your site. For example, you will be solely responsible
for:
- The technical operation of your site
and all related equipment
- The accuracy and appropriateness of
materials posted on your site (including, among other things,
all product-related materials)
- Ensuring that materials posted on
your site do not violate or infringe
upon the rights of any third party (including, for example,
copyrights, trademarks, privacy, or other personal or proprietary
rights)
- Ensuring that materials posted on
your site are not libelous or otherwise illegal.
We disclaim all liability for these matters.
Further, you will indemnify and hold us harmless from all
claims, damages, and expenses (including, without limitation,
attorneys' fees) relating to the development, operation, maintenance,
and contents of your site.
Linking
As an Affiliate, we will make available to you a variety of
graphic and textual links (each of these links sometimes being
referred to herein as "Links" or, individually,
as a "Link"), which, subject to the terms and conditions
hereof, you may display as often and in as many areas on your
site as you desire. The Links will serve to identify your
site as a member of our Affiliate Program and will establish
a link from your site to ours.
a. Agreements Regarding Links: In utilizing
the Links, you agree that you will cooperate fully with
us in order to establish and maintain such Links. You also
agree that you will display in your site only those graphic
or textual images (indicating a Link) that are provided
by us, and you will substitute such images with any new
images provided by us from time to time throughout the term
of this Agreement. All Affiliate Sites shall display such
graphic and/or textual images prominently in relevant sections
of their site. All Links may be modified and/or expanded
from time to time throughout the term of this Agreement
pursuant to the mutual agreement of the parties hereto.
Each Link connecting users of your site to our site will
in no way alter the look, feel, or functionality of our
site.
b. We will refuse all applications
or signups from affiliates which we believe participate
in spyware, adware or parasiteware techniques for driving
traffic. We reserve the right to research and investigate
affiliates and their activities and, at our own discretion,
determine whether or not these practices are in place. Affiliates
found in violation of this policy will be immediately terminated
from the program and will forfeit all commissions.
Commission
Schedule
You will earn commissions (referral fees) based on revenues
according to the commissions schedules to be established by
us. The current commission schedule is:
- $6.50 per bottle sale. This does not apply to wholesale orders or personal orders placed from the affiliate or anyone in the affiliate household.
Bonus Commission Possibilities
A second tier payment is available to those first tier
affiliates who refer other affiliates. The referred affiliate
must sign up as an affiliate, using the standard process.
We will pay you in accordance with this schedule:
- $2 per bottle
on 2nd tier sales
Commission
Payment
We will pay you commissions on a monthly
basis. Approximately 15 days following the end of each calendar
month, we will send you a check for the referral fees commissions
earned on sales of Products that were purchased and paid during
that month. However, if the referral fees payable to you for
any calendar month are less than $25.00, we will hold those
referral fees until the total amount due is at least $25.00
or (if earlier) until this Agreement is terminated. If a Product
that generated a referral fee is not paid in complete by the
end customer or is purchased by the use of a fraudulent credit
card, we will deduct the corresponding referral fee from your
next payment. If there is no subsequent payment, we will send
you a bill for the commission paid on sales.
Commission
Eligibility
Affiliates are not eligible to earn commissions on their purchases
of any Syn-flex America products.
Tax Reporting Requirement
United States Affiliates (individual/resident/corporation/business)
must provide us with a completed W-9 Federal Tax form before
we will issue a check to the Affiliate. We agree to issue
a 1099 to Affiliates only if they reach the maximum payout
allowed under Federal tax law (currently $600 - 3/30/01).
We will provide you with the necessary form.
Anti-SPAM
Policy
We do not and will not tolerate the sending of unsolicited
email messages and will prosecute all offenders to the fullest
extent of the law. By agreeing to the terms and conditions
of this agreement, you also agree to the following.
a) e-mails promoting
Syn-flex America shall not contain or include a falsified
sender domain name or falsified IP address;
b) e-mails promoting
the Syn-flex America dvertisements shall not be routed or
relayed through servers that the sender does not have explicit
authorization to use
c) e-mails promoting
the Syn-flex America advertisements shall not contain or
include a false or misleading subject line that attempts
to disguise or conceal the content of the e-mail;
d) all e-mails
shall contain or include valid and responsive contact information
of the sender, list manager or list owner; This includes
your physical address.
e) no e-mails promoting
Syn-flex America shall be sent for the purpose of harvesting
the e-mail addresses in order to send future unsolicited
e-mails;
f) all e-mails
promoting Syn-flex America will be sent to individuals who
have given you their “Affirmative Consent” as
defined in Sec. 3.1 of the “CAN-SPAM Act of 2003”
(viewable at GPOAccess.gov) which by its reference is incorporated
into this document.
g) every e-mail
promoting Syn-flex America advertisements 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.
h) you shall process
any and all opt-out requests within 5 business days, or
less of the request.
i) unless otherwise
directed by Syn-flex American writing, you shall not use
Syn-flex America, or it's represented advertisers names
(including any abbreviation thereof) or any trademark, trade
name, service mark, logo or other Syn-flex America entifying
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.
j) you agree and
affirm to comply with all the rules and regulations set
forth in the “CAN-SPAM Act of 2003” as well
as all obligations and provisions herein.
Terms of the Agreement
The terms of this Agreement will begin upon our acceptance
of your Affiliate application and will end when terminated
by either party. Either you or we may terminate this Agreement
at any time, with or without cause, by giving the other party
written notice of termination. You are only eligible to earn
referral fees on sales occurring during the term.
Modification
We may
modify any of the terms and conditions contained in this Agreement,
at any time and in our sole discretion, by posting a change
notice or a new agreement on this site. Modifications may
include, for example, changes in the scope of available referral
fees, fee schedules, payment procedures and Program rules.
IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE
IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION
IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR
NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE
OF THE CHANGE.
Limitation of Liability
We will not be liable for indirect, special or consequential
damages, or any loss of revenue, profits or data, arising
in connection with this Agreement or the Program, even if
we have been advised of the possibility of such damages. Further,
our aggregate liability arising with respect to this Agreement
and the Program will not exceed the total referral fees paid
or payable to you under to this Agreement.
Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE
TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY
AT ANY TIME (DIRECTLY OR INDIRECTLY) 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 YOUR
WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY
OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY
REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH
IN THIS AGREEMENT.
Miscellaneous
This Agreement will be governed by the laws of the United
States and the State of Florida,
without reference to rules governing choice of laws.
Any action relating to this Agreement must be brought
in the federal or state courts located in Holmes Beach,
Florida, and you irrevocably consent to the jurisdiction
of such courts. You may not assign this Agreement, by
operation of law or otherwise, without our prior written
consent. Subject to that restriction, this Agreement
will be binding on, inure to the benefit of and be enforceable
against the parties and their respective successors
and assigns. Our failure to enforce your strict performance
of any provision of this Agreement will not constitute
a waiver of our right to subsequently enforce such provision
or any other provision of this Agreement.
SPYWARE
AND OTHER PARASITES:
Any affiliate suspected of a relationship, formal or
informal, with any provider of spyware or parasitic
software (as judged by any interference with the operation
by design of MERCHANT and/or its partner sites) is subject
to punitive actions by MERCHANT, without notice, including
but not limited to: suspension of affiliate account;
termination of affiliate account; withholding of payments
to affiliate; and public notification of affiliate's
suspected malfeasance. MERCHANT encourages affiliates
to report suspicions of such relationships; and, should
substantial proof, as judged by MERCHANT, be provided,
MERCHANT reserves the right to assign a value equal
to unpaid monies earned by the offending affiliate (or
a part thereof) to the reporting affiliate as a bounty.
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