PLEASE READ THE ENTIRE AGREEMENT. YOU MAY PRINT THIS PAGE FOR YOUR RECORDS. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND SMILINISLANDFOODS.COM. BY SUBMITTING THE ONLINE APPLICATION, YOU AGREE THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in Smilinislandfoods.com’s Affiliate Program. The purpose of this Agreement is to allow HTML linking between your website and the Smilinislandfoods.com website. Please note that throughout this Agreement, “we,” “us,” and “our” refer to Smilinislandfoods.com, and “you,” “your,” and “yours” refer to the affiliate.
- AFFILIATE OBLIGATIONS
- 1. To begin the enrollment process, you will complete and submit the online application at http://smilinislandfoods.com/affiliate-area/. The fact that we auto-approve applications does not imply that we may not re-evaluate your application at a later time. We may reject your application at our sole discretion. We may cancel your application if we determine that your site is unsuitable for our Program, including if it:
- 1.1. Promotes sexually explicit materials
- 1.2. Promotes violence
- 1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- 1.4. Promotes illegal activities
- 1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
- 1.6. Includes “Merchant” or variations or misspellings thereof in its domain name
- 1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
- 1.8. Contains software downloads that potentially enable diversions of commission from other affiliates in our program.
- 1.9. You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are Smilinislandfoods.com or any other affiliated business.
- 2. As a member of Smilinislandfoods.com’s Affiliate Program, you will have access to Affiliate Membership Area. Here you will be able to review our Program’s details and previously-published affiliate newsletters, copy HTML code (that provides for links to the Smilinislandfoods.com website) and banner creatives, browse and get tracking codes for our coupons and deals. In order for us to accurately keep track of all guest visits from your site to ours, you must use the HTML code that we provide for each banner, text link, or other affiliate link we provide you with.
- 3. Smilinislandfoods.com reserves the right, at any time, to review your placement and approve the use of Your Links and require that you change the placement or use to comply with the guidelines provided to you.
- 4. The maintenance and the updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
- 5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person’s copyrighted material, whether it be a writing, an image or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third party rights.
- COM RIGHTS AND OBLIGATIONS
- 1. We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made, or to make sure that your links to our website are appropriate and to notify further you of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the Smilinislandfoods.com Affiliate Program.
- 2. Smilinislandfoods.com reserves the right to terminate this Agreement and your participation in the Smilinislandfoods.com Affiliate Program immediately and without notice to you should you commit fraud in your use of the Smilinislandfoods.com Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, Smilinislandfoods.com shall not be liable to you for any commissions for such fraudulent sales.
- 3. This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated hereunder.
Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email or fax. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you.
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and Smilinislandfoods.com’s Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in Smilinislandfoods.com’s Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
To begin the enrollment process, you will fill out a Smilinislandfoods.com’s Affiliate program application form and submit it. Smilinislandfoods.com will evaluate your application in good faith and notify you of your acceptance or rejection. Smilinislandfoods.com may reject your application (at our discretion) if it falls under the Non-Qualifying Sites listing. If Smilinislandfoods.com rejects your application, you are welcome to reapply to the program at any time. If Smilinislandfoods.com accepts your application and your site is thereafter determined to be unsuitable (at our discretion), we may end your enrollment in the program and terminate this Agreement immediately.
- NON-QUALIFYING SITES
Sites that are unsuitable and will not qualify for the Web Partners program include those that:
– Promote violence
– Promote sexually explicit material
– Discriminate based on race, sex, religion, national origin, disability, or sexual orientation
– Promote illegal activities. Do not apply if your site promotes one or more of these activities. By applying to our program, you are stating that your site (located at the URL you provide when filling out the application) does not promote or endorse these activities.
- UTILIZING OUR LINKS ON YOUR SITE
As a Smilinislandfoods.com’s Web Partner, we will make available to you Smilinislandfoods.com’s banner advertisements for your site and/or text links to our site (these links referred herein collectively as “links”, or individually as “link”), which, subject to the terms and conditions hereof, you may display on your site. In utilizing the Smilinislandfoods.com links, you agree to cooperate fully with us in order to establish and maintain the Smilinislandfoods.com link(s). You shall display Smilinislandfoods.com link(s) prominently on your site as you see fit, and with our consent. You shall not alter, modify or expand the links in any way.
- ORDER PROCESSING
com will process product orders placed by customers who follow links from your site to the Smilinislandfoods.com website. We reserve the right to reject orders that do not comply with any requirements that we establish (either existing or future requirements). We will handle all aspects of order processing and fulfillment, including order entry, payment processing, cancelations, returns, and related customer service. We will track the volume and amount of sales generated by your site and will make reports available to you. The form, content, and frequency of the reports may vary from time to time at our discretion. To permit accurate tracking, reporting, and fee accrual, you must ensure the links between your site and our site are properly formatted.
- REFERRAL FEES
We will pay you, in accordance with the Referral Fee Schedule, referral fees on Smilinislandfoods.com’s Product sales identified by the unique URL to third parties. For a sale to be eligible to earn a referral fee, the customer must follow one of the links from your website to the Smilinislandfoods.com’s website, select and purchase the product using our automated ordering system, and remit full payment to us. We will not pay referral fees on any products that are added to the customer’s shopping cart but are not purchased. However, we will we pay referral fees on purchases after the customer has re-entered our site if the customer previously followed a link from your site to our site. A referral fee will only be paid if the visitor to our site is tracked by the system to have originated from your affiliate link. No referral fee will be paid if the visitor to our site cannot be tracked by our system.
- REFERRAL FEE SCHEDULE
You will earn referral fees based on Qualifying Revenues according to the Referral Fee Schedule published by Smilinislandfoods.com. Qualifying Revenues are those derived by Smilinislandfoods.com from our sales of the Qualifying Products, excluding costs for shipping, handling, taxes, credit card processing fees, and bad debt.
The Referral Fee Schedule is as follows:
Type: Web Partners
Referral Fee: 5% of paid sales
Qualifying Products: all products
- REFERRAL FEE PAYMENT
com will pay referral fees on a calendar quarterly basis. Approximately 30 days following the end of each calendar quarter, Smilinislandfoods.com will issue payment via a check in US$ for the referral fees earned during the recently completed quarter, less any taxes that we are required to withhold by law. However, if the referral fee due to you is less than the Required Value shown below, we will hold payment until the total amount due has reached the Required Value. In such instances, Smilinislandfoods.com will issue payment within 30 days following the end of the current calendar quarter. Calculation of qualifying referral fees is based solely on sales recorded by Smilinislandfoods.com. In the event that your calculation of referral fees differs from ours, the amount shown in our records will prevail.
Should credit card fraud, bad debt or cancelation occurs for sales arising from your website link, the corresponding referral fee will not be paid. If credit card fraud, bad debt, or cancelation occurs after referral fees have been paid for the given quarter, the corresponding referral fee will be deducted from your next quarterly payment. If there is no subsequent payment, we will send you a bill for the referral fee .Required Values for referral fee payment are as follows:
Type: Web Partners
Required Value: US $100
- SALES REPORTS
You will be given a password and have the ability to enter a password-protected summary page to receive your sales statistics on a regular basis. This summary page will include information such as the price of the product sold, the quantity of product sold, date of sale, and accumulated referral fees.
- CUSTOMER POLICY
Customers who buy Products through the Web Partner Program will be deemed customers of Smilinislandfoods.com. Thus, Smilinislandfoods.com and Smilinislandfoods.com’s agreements and policies will apply to those customers. Smilinislandfoods.com will not provide customer names and contact information to you in order to protect customer privacy. However, Smilinislandfoods.com will provide access to an Affiliate summary page on the Smilinislandfoods.com’s website that includes the following information: price of product sold, quantity of product sold, date of sale, and accumulated referral fees.
- NON-EXCLUSIVE LIMITED LICENSE AND USE OF SMILINISLANDFOODS.COM’S LOGOS AND TRADEMARKS AND WEB PARTNER LOGOS AND TRADEMARKS
We grant you a non-exclusive, non-revocable, non-transferable right to:
- i) Access the Smilinislandfoods.com’s website in accordance with the terms of this Agreement; and
- ii) Use Smilinislandfoods.com’s graphics, logos, trade names, and trademarks in connection with such links in i), solely for selling the product on your site.
You may not alter or modify Smilinislandfoods.com’s graphics, logos, trade names, and trademarks in any way. You are entitled to use the graphics, logos, trade names, and trademarks to the extent that you are a member in good standing of the Smilinislandfoods.com’s Web Partner program.
You shall not make any specific use of any Smilinislandfoods.com’s graphics, logos, trade names, and trademarks for purposes other than selling product for Smilinislandfoods.com and Smilinislandfoods.com’s without first submitting a sample of such use to us and obtaining our prior written consent. You agree not to use the graphics, logos, trade names, and trademarks in a disparaging manner, or that portray Smilinislandfoods.com in a negative light. We reserve all our rights for the graphics, logos, trade names, and trademarks, and all other intellectual property rights. We may revoke the rights granted to you pursuant in this section at any time by providing written notice. You shall obtain no rights in and to our graphics, logos, trade names, and trademarks.
You grant us a non-exclusive license to utilize your names, titles, logos, and trademarks, and to advertise, market, promote, and publicize in any manner. Notwithstanding herein to the contrary, we shall not be required to so advertise, market, promote, or publicize. You hereby represent and warrant that you are the sole and exclusive owner of your site and of your logos and trademarks, and have the right and power to grant to us the license to use the same in the manner contemplated herein, and such grant does not or will not:
- i) Breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon you; or
- ii) Infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
The rights granted to you pursuant to this section, and the license granted to us, shall terminate upon the effective date of the expiration or termination of this agreement.
You shall not create, publish, distribute, or permit any written material that makes reference to us, without first submitting such material to us and receiving our written consent.
- 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. We will have no responsibility for the development, operation, and maintenance of your site and for all the materials that appear on your site. You hereby represent and warrant to us that materials posted on your site do not infringe or violate on the rights of any third parties, including copyrights, trademarks, privacy, or proprietary rights. Material posted on your site must not be 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.
- TERM OF THE AGREEMENT
The term of this Agreement will begin upon our acceptance of your Web Partner Application Form 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. Upon the termination of this Agreement, you will immediately cease use of, and remove from your site, all links to our site, as well as all Smilinislandfoods.com’s graphics, logos, trade names, and trademarks, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the program. If this Agreement is terminated because you have violated the terms of this Agreement, or if this Agreement is terminated because your site becomes a Non-Qualifying Site (as set forth in Section 1), you are not eligible to receive any referral fees, even for referrals earned prior to the date of termination. If this Agreement is terminated for any other reason, you are only eligible to earn a commission on sales occurring during the term of the Agreement, and commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement, at any time and at our discretion. Notice of any change by e-mail to your address on our records, or the posting on our site of a change notice or a new agreement, is considered sufficient notice for notifying you of a modification to the terms and condition of this Agreement. Modifications may include, but are not limited to, changes in the scope of available referral fees, referral fee schedules, payment procedures, and program rules. All such modifications shall take effect 48 hours after we serve notice as provided above, unless we indicate otherwise. If any modification is unacceptable to you, your only recourse is to terminate this Agreement in writing. 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.
- 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 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.
- LIMITATION OF LIABILITY
We will not be liable for indirect, incidental, special, or consequential punitive or multiple damages, including without limitation any damages resulting from loss of use, loss of business, loss of revenue, loss of profits, or loss of 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 this Agreement.
We make no express or implied warranties or representations with respect to the Web Partners Program or any product sold through the Web Partners Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
- ACCESS TO AFFILIATE ACCOUNT INTERFACE
You will create a password so that you may enter Smilinislandfoods.com’s secure affiliate account interface. From their site you will be able to receive your reports that will describe our calculation of the commissions due to you.
- PROMOTION RESTRICTIONS
- 1. You are free to promote your own websites, but naturally any promotion that mentions Smilinislandfoods.com could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by Smilinislandfoods.com. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name. Other prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote Smilinislandfoods.com so long as the recipient is already a customer or subscriber of your services or website, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote Smilinislandfoods.com so long as the newsgroup specifically welcomes commercial messages. At all times, you must clearly represent yourself and your websites as independent from Smilinislandfoods.com. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Smilinislandfoods.com Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
- 2. Affiliates that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as Smilinislandfoods.com, merchant, www.merchant, www.Smilinislandfoods.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to re-directing it to ours, will be considered trademark violators, and will be banned from Merchant’s Affiliate Program. We will do everything possible to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior.
- 3. Affiliates are not prohibited from keying in prospect’s information into the lead form as long as the prospects’ information is real and true, and these are valid leads (i.e. sincerely interested in Merchant’s service).
- 4. Affiliate shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited Merchant’s site (i.e., no page from our site or any Smilinislandfoods.com’s content or branding is visible on the end-user’s screen). As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non-affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of Merchant site in IFrames, hidden links and automatic pop ups that open Smilinislandfoods.com’s site; (d) targets text on websites, other than those websites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on websites 100% owned by the owner of the application.
- GRANT OF LICENSES
- 1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of Smilinislandfoods.com’s Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of Smilinislandfoods.com and the good will associated therewith will inure to the sole benefit of Smilinislandfoods.com.
- 2. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
- REPRESENTATIONS AND WARRANTIES
You represent and warrant that:
- 1. 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;
- 2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
- 3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
- LIMITATIONS OF LIABILITY
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL SMILINISLANDFOODS.COM’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
You hereby agree to indemnify and hold harmless Smilinislandfoods.com, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked “Confidential,” 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 permission of the disclosing party.
- 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 Smilinislandfoods.com. 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 any other of Your Site or otherwise, that reasonably would contradict anything in this Section.
- 2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party.
- 3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida without regard to the conflicts of laws and principles thereof and venue for any dispute or cause of action shall be the courts of Dade County, Florida.
- 4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
- 5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
- 6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
- 7. 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