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Parties and Program Agreement This agreement (Agreement) is by and between Toys In Motion Inc., a Nevada Corporation (ˇ°Companyˇ±) and the individual or organization (ˇ°Affiliateˇ±) applying or accepted for membership in Company's affiliate program (ˇ°Programˇ±), the subject of this Agreement.
The individual applying for Program membership, whether acting for themselves or a named organization, warrants they are at least 18 years of age and have the authority to bind themselves and/or that organization to the terms of this Agreement.
Term of the Agreement The term of this Agreement will begin upon Company's acceptance of the Affiliate's application and will end when terminated by either party. Company or Affiliate may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Affiliates are only eligible to earn referral fees on sales occurring during the term.
Relationship of Parties Company and Affiliate are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate will have no authority to make any representations or accept any offers on Company's behalf. Affiliate agrees not to represent to any third party by any means that Company and Affiliate have any relationship other than that stipulated here.
Company Responsibilities Company will be responsible for providing all information necessary to allow Affiliate to link (the Links) Affiliate's Web site to Company's Web site. Company will be solely responsible for processing every order placed by a customer following a Link from Affiliate's site, for tracking the number and amount of sales generated by those Links, and for providing information to Affiliate regarding sales statistics and commissions generated by Affiliate Links. The Company is responsible for credit card authorizations, payment processing, cancellations, returns, and related customer service.
Responsibility of Affiliate Site Affiliate will be solely responsible for the development, operation, and maintenance of Affiliate's site and for all materials that appear on Affiliate's site. Affiliate will indemnify and hold Company harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of Affiliate site including possible content or materials provided to Affiliate by Company.
Linking As an Affiliate Company will provide Affiliate with Links, including URL addresses and appropriate graphics (the Link Materials), with which Affiliate may Link to Company's Web site. The Company grants Affiliate a non-exclusive limited license solely to reproduce and use these Link Materials, including our trademarks to the extent they are incorporated into these Link Materials, only while Affiliate is a Program member and only in accordance with the terms and conditions of this Agreement. Affiliate agrees to display the Link Materials appropriately on Affiliate's Web site and to respect our trademarks, service marks, and other rights in the Link Materials.
Agreements Regarding Links : In utilizing the Link Material, Affiliate agrees that Affiliate will cooperate fully with Company in order to establish and maintain such Links. Affiliate agrees that they will display only those graphic or textual images that are provided by or approved by Company, and Affiliate will substitute such images with any new images provided by Company from time to time. Each Link connecting users of Affiliate's site to Company's site will in no way alter the look, feel, or functionality of Company's site.
Tracking of Sales Company will be solely responsible for tracking sales using special software that operates using specially encoded URLs assigned to Affiliate. Company will provide its best effort to ensure accurate tracking of referrals made by Affiliate. Affiliate will themselves be solely responsible for ensuring that these special URLs are formatted properly, a necessary prerequisite to accurately tracking of referred sales. Notwithstanding the above statement of responsibility by Company to track sales, Affiliate hereby acknowledges and accepts that the tracking system employed by Company is not 100% fail-safe and that there may on occasion be instances of referral sales made that are not properly credited to the Affiliate. Failures can arise for many reasons including but not limited to: Failure by the affiliate to use the proper format of the specially assigned URL in promotions, webpage links, banner ads, and so on. Deliberate or accidental actions by customers to circumvent an affiliate's special URL so that Company's software is unable to accurately track that sale. Bugs, glitches or crashes of the tracking software that render it unable to accurately track sales for a period of time. Acts of nature that cause irretrievable data loss on the computers and back-up media that store the commission information. As such, Affiliate will not hold Company liable for commissions that were not tracked and recorded by the tracking software. Presently Company accounts for Affiliate referrals with our shopping cart's affiliate module, currently Miva Merchant.
Preventing Overstated Commissions From time to time Company engages in promotional sales. In some instances these promotions take the form of coupons and or discounts that result in a reduced sales price to the customer. The normal sales commission rates apply to these reduced totals. However, in some instances a sale takes the form of additional merchandise provided by Company and included without additional charge to the customer. Special reduced sales commission rates will apply to these sale items that reflect the value of the additional merchandise offered to customer as a purchase incentive. These rates are calculated such that the Affiliate's resultant commission will reflect their normal commission rate applied to the merchandise had that merchandise's price been reduced by the value of the included sale promotion item(s).
Identifying Return Customers Company will credit Affiliate for sales to customers who re-entered our site without transiting Affiliate's Link through the use of a cookie placed on the customer's computer. If, through no fault of Company, the cookie is removed or not allowed by the end user, that customer's purchase may be tracked only if customer re-enters Company's site directly through a link from Affiliate's site. If the cookie is permitted it will it will remain active on the customer's computer for 30 days.
Commission Schedule Affiliate will earn commissions (referral fees) based on revenues according to the commission schedules to be established by Company. All revenues and commissions are represented and reported in United States dollars. The current commission schedule is:
Referred Sales less than $1000 in a single calendar month
* 25% of revenues from sales of Toys In Motion products
* 10% of revenues from sales of all third party products
Referred Sales in excess of $1000 in a single calendar month applied retroactively to the beginning of that month
* 30% of revenues from sales of Toys In Motion products
* 12% of revenues from sales of all third party products
Commission Payment Company will pay Affiliate commissions on a monthly basis. On or about the 15 th of each calendar month, Company will transfer commissions earned on transactions completed during the prior month providing the amount due exceeds $100. Amounts less than $100 will be deferred to subsequent months until the total amount due exceeds $100 or (if earlier) until this agreement is terminated. Payment will be made by means mutually agreeable to the parties. If a transaction is not completed by Company's customer, is charged back or is found to involve the use of a fraudulent credit card, Company will deduct the corresponding commission from Affiliate's next payment. If there is no subsequent payment, Company will send Affiliate a bill for the commission paid on such sales.
Anti-SPAM Policy Company has a zero tolerance policy for SPAM. SPAM is any unsolicited advertising including, but not limited to, email, newsgroups, IRC posts or instant messaging clients. Some examples of SPAM include: Any non-verifiable non-opt-in emailing; Bulk emailing to persons listed on an email address lead list; Using any 3rd party bulk email service; Unsolicited messages through any media, including chat rooms and instant messages. Any Affiliate accused of SPAMMING will be immediately suspended while the Company, at its sole discretion, determines the validity of the SPAM complaint. Valid SPAM complaints will result in the immediate termination of Affiliate account and forfeiture of any commissions owed Affiliate. Affiliate affirms that without the clear permission of the addressees, Affiliate will not engage in any email programs, whether or not they include mention of Company.
Refusals and Terminations Company will refuse all applications and terminate current Program members which Company believes employ spyware , adware or parasitic software techniques, or found attempting to take credit for sales driven by other Affiliates, or engaging in any technique known as Cookie Stuffing, URL Jacking, Search Jacking or other similar forms of fraud. Company reserves the right to research and investigate affiliates and their activities to determine whether or not these practices are in employed. Affiliates found in violation of this policy will be immediately terminated from the Program and will forfeit all commissions.
Modification Company may modify any of the terms and conditions of this Agreement, at any time and at Company's sole discretion, by posting a change notice or a new agreement on this site. Modifications may include changes in the scope of available referral fees, fee schedules, payment procedures and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, AFFILIATE'S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. AFFILIATE'S 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 Company 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 Company has been advised of the possibility of such damages. Further, Company's aggregate liability arising with respect to this Agreement and the Program will never exceed the total referral fees earned and not already paid to Affiliate under to this Agreement.
Applicable Law and Dispute Resolution This Agreement shall be governed by and interpreted in accordance with the laws of the United States and the State of Nevada without reference to rules governing choice of laws. The parties agree to submit any dispute to binding arbitration in Las Vegas, Nevada as provided in Nevada law, and not by lawsuit or resort to court process except as Nevada law provides for judicial review of arbitration proceedings. Both parties to this Contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. Judgment upon the award rendered by the arbitration may be entered in any court with jurisdiction to do so. Company's failure to enforce Affiliate's strict performance of any provision of this Agreement will not constitute a waiver of Company's right to subsequently enforce such provision or any other provision of this Agreement.
Assignment Affiliate may not assign Affiliate rights or obligations under this Agreement to any party without the expressed permission of Company.
Severability 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 and the remainder of this agreement shall have full force and effect.
Notices Any notice required under this Agreement may be given by email, fax or written letter to the number(s) or address(s) Affiliate provides. Notice to Company can be provided similarly at those numbers and addresses maintained on Company's Web site.
Entire Agreement This Agreement constitutes and contains the entire agreement between the parties with respect to the subject matter. Each party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein. Specifically included is information that may appear elsewhere on Company's site summarizing the Program and this Agreement. AFFILIATE ACKNOWLEDGES THAT AFFILIATE HAS READ THIS AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. AFFILIATE UNDERSTANDS THAT COMPANY 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 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.
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