Viatekproducts.com Affiliate Program Agreement
Please read this document carefully.
This Agreement contains the complete terms and conditions that apply to your participation as an Affiliate in Viatekproducts.com's Affiliate Program ( "the Program"), and the establishment of links from your Web site to our Web site at www.viatekproducts.com. As used in this Agreement, Viatek Consumer Products Group Inc, and its parent and related entities (collectively, "Viatek"), and "you" and "your" mean the Affiliate applicant. By submitting your Affiliate Application and participating in the Program you are confirming that you have read this Agreement and you agree to be bound by these terms and conditions.
1. Enrollment in the Program: To begin the enrollment process, you must submit an email to us and fill out our Affiliate Application. We will evaluate your application and will notify you of your acceptance or rejection for participation in the Program. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Program for any reason. Unsuitable sites include, but are not limited to, those that:
* Promote sexually explicit materials.
* Promote violence or hate toward any persons or groups
* Promote discrimination based on race, sex, age, religion, nationality, disability or sexual orientation.
* Promote illegal activities.
* Promote tobacco or gambling.
* Contain, in our sole judgment, material that is defamatory, fraudulent or harassing
* Misrepresent themselves as a Viatek Web site by using the "look and feel" of or text from our site.
* Include "Viatek" or variations or misspellings thereof in their domain names
* Otherwise violate intellectual property rights of Viatek or its affiliates
* Require a user name and password to access.
* Are non-US based sites or are sites that primarily serve a non-US based audience.
* Are unable to direct a reasonable amount of traffic by way of sales volume, clicks and page views to our site.
* Otherwise are considered (in our sole judgment) offensive or inappropriate.
* Link to or provide a portion of their commission or affiliate benefits to sites or organizations that violate any of the above criteria.
Employees, family members of employees, or any entities directly or indirectly owned or controlled by employees or family members of Viatek Consumer Products Group or its subsidiaries, suppliers of Viatek and advertising, promotion and fulfillment agencies of Viatek are not permitted to be affiliates.
1.Our acceptance criteria are subject to change at any time without prior notice.
If your Application is not accepted, you may re-apply to the Program at any time; however, you may not link to our site unless you are approved for the Program. If you are accepted into the Program, you will be able to participate in the Program subject to the terms and conditions of this Agreement. You should also note that if you are accepted to participate in the Program and your site is thereafter determined (in our sole discretion) to be unsuitable based on our criteria for the Program, we may terminate this Agreement.
a. From time to time, we may post ("Offers") to pay members of The Program a specified referral fee on sales of Qualifying Products (as defined below) to third parties through a Qualifying Link. "Qualifying Link" means a link from your site to our site using one of the URLs or graphic links specified in the Offer and provided by Viatek for use in the Program if it is the last link to our site that the Customer uses before purchasing a product on our site.
b. The terms of an Offer, as posted on viatekproducts.com or otherwise communicated to you, shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Offer and the terms of this Agreement, the terms of the Offer shall govern.
c. At any time prior to you providing a Qualifying Link, we may with or without notice (a) change, suspend or discontinue any aspect of an Offer or (b) remove, alter, or modify any graphic or banner ad provided to you pursuant to an Offer. You agree to promptly implement any request from Viatek to remove, alter or modify any graphic or banner ad submitted by you that is being used in connection with an Offer.
3. Links on Your Site:
a. Links Provided by Viatek. Upon acceptance into the Program, we will make available to you Qualifying Links that, subject to the terms and conditions of this Agreement, you may display as often and in as many areas on your site as you desire. The Qualifying Links will serve to identify your site as a member of the Program and will establish a link from your site to ours. All Qualifying Links that you will use in the Program will be provided to you from Viatek's network servers or by other means selected by us. You also agree that you will display in your site only those graphic images (indicating a Qualifying 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. Only valid Qualifying Links will be tracked for purposes of determining referral fees that you may be eligible to receive on sales of Qualifying Products generated through your site.
b. Additional Requirements: As a condition to your acceptance and participation in the Program, you agree to not undertake or engage in the following practices, and any violation of this Section shall be deemed a material breach of this Agreement:
* use the Viatek name, or any variation thereof, in any manner not expressly authorized by this Agreement;
* use or otherwise incorporate the word "Viatek" or variations or misspellings thereof in the domain name(s) of your site(s), on any meta tags of Web pages comprising your site(s), in hidden text or source code, or in searchable keywords;
* engineer your site in such a manner that pulls Internet traffic away from viatekproducts.com;
* attempt to modify or alter our site in any way;
* make any representations, either express or implied, or create an appearance that a visitor to your site is visiting our site, e.g., "framing" the viatekproducts.com site, without our prior written approval; or
* "scrape" or "spider" the viatekproducts.com site or any other Viatek Web site for content (such as images, logos or text).
If your site donates any portion of its referral fees to any school, foundation or other charitable organization, you may not state or imply that Viatek endorses such activities or is responsible in any way for the inclusion and donation of funds to any of the schools, foundations or charities associated with your site.
c. Compliance with the Agreement: We have the right in our sole and absolute discretion to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement, and you agree to provide us with unrestricted access to your site for such purpose.
4. Your Responsibilities:
You will be solely responsible for the development, operation and maintenance of your site and for all content that appears on your site. For example, you will be solely responsible for:
* the technical operation of your site and all related equipment;
* the accuracy, timeliness and appropriateness of content posted on your site (including, among other things, all product-related materials);
* ensuring that your site complies with all applicable copyright and other laws;
* 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 content posted on your site is not libelous or otherwise illegal; and
* notifying Viatek of any malfunctioning of the Qualifying Links or other problems with your participation in the Program in accordance with the terms of the Offer and this Agreement.
We disclaim all liability for all such matters. Further, you agree to defend, indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys fees) relating to the development, operation, maintenance or content of your site.
5. Order Processing:
We will process product orders placed by customers who follow special links from your site to the viatekproducts.com site in accordance with applicable legal requirements. We reserve the right to reject orders that do not comply with any reasonable requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will (i) prepare order forms, (ii) process payments, cancellations and returns, and (iii) handle customer service. We will track sales made to customers who purchase products using Qualified Links, that you will generate, from your site to our site, and reports summarizing this sales activity will be available to you through viatekproducts.com. The form, content, and frequency of the reports are limited to those reports and capabilities available through viatekproducts.com and may vary from time to time in our and/or viatekproducts.com's reasonable discretion. Viatek is not responsible for any changes that third partiesmay make in their reporting format, timing, or types of reports available to Viatek's Affiliates. To permit accurate tracking, reporting and fee accrual, you must ensure that the links between your site and our site are properly formatted. Viatek will not be responsible for improperly formatted links regardless of whether you have made amendments to the code or not.
We will pay you 10% commission on MSRP product saleson viatekproducts.com Web site only. For a product sale to generate a referral fee, the customer must
* use a browser that has its cookies setting enabled;
* follow a Qualifying Link (in the format specified by Viatek) from your site to the tviatekproducts.com site (if it is the last link to our site that the customer uses before making the purchase);
* purchase the product using our automated online ordering system;
* accept delivery of the product at the shipping destination; and
* remit full payment to us.
Service invoice adjustments, reorders, Amazon.com products, and products under certain portions of our web site are not eligible to earn commissions. We will not pay commissions on any products that are added to a customer's Shopping Cart after the customer has re-entered our site (other than through a Qualifying Link from your site), even if the customer previously followed a link from your site to our site. Products that are entitled to earn commissions under the rules set forth above are hereinafter referred to as "Qualifying Products."
7. Commission Schedule:
You will earn commissions based on the Net Price of Qualifying Products, according to fee schedules to be established by us. "Net Price" means the sale price listed online on our site (less any coupon or customer discount) and excludes amounts collected by us for taxes, shipping, handling, rebates, gift-wrapping and similar ancillary services, and amounts due to credit card fraud and bad debt. The current commission schedule is:
* 10% of MSRP Price
8. Commission Payment:
We will pay you commissions on a monthly basis. Approximately 30 days following the end of each calendar month, you will receive a check for the referral fees earned on products that were shipped during the previous month, less any taxes that we are required by law to withhold. However, if the fees payable to you for any month are less than $50, we will hold those fees until the total amount due is at least $50 or (if earlier) until this Agreement is terminated. If a customer returns a Qualifying Product that generated a referral fee, we will deduct the corresponding referral fee from your next monthly payment; if there is no subsequent payment, we will send you an invoice for the referral fee payable within thirty (30) days of your receipt of the invoice. If the fees payable to you at the end of any calendar year starting in 2003 are $5 or less, your balance will be reduced to $0 and you forfeit your right to receive payments for those amounts. All determinations of Qualifying Links and whether a referral fee is payable will by made by Viatek and will be final and binding.
9. Policies and Pricing:
Customers who buy products through the Program will be deemed to be customers of Viatek, without affecting their status as your customer. Accordingly, all of our rules, policies and operating procedures concerning customer orders, customer service and sales will apply to those customers. We may change our policies and operating procedures at any time in our sole discretion. For example, we will determine the prices to be charged for products sold under the Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. Because price changes may affect products that you already have listed on your site, you may not include price information in your site. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product or the error-free or uninterrupted operation of our site.
10. Term of the Agreement:
a. The term of this Agreement will begin upon our acceptance of your Program 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 five (5) days prior written notice of termination. In addition, we shall be entitled to terminate this Agreement immediately if you materially breach or violate any terms or conditions of this Agreement, or if we determine, in our sole discretion, that there are technical or operational issues (e.g. interruptions caused by or shifts in online/Internet technology) that adversely affect the implementation of the Program, or the orders/referrals were obtained fraudulently or through misrepresentation, in which case we reserve the right to withhold payment of associated referral fees pending an investigation of the suspected fraud or misrepresentation. Termination of this Agreement shall also terminate any outstanding Offer. However, all rights to payment, causes of action and any provisions that by their terms are intended to survive termination, shall survive termination of this Agreement.
b. Either party may terminate an Offer at any time by email Viatek your wish to terminate. Termination of a specific Offer shall not be deemed to terminate any other Offers.
c. Upon termination of this Agreement, you will immediately cease use of, and remove from your site, all links to our site and all Viatek related content.
d. You are only eligible to earn referral fees on sales of Qualifying Products occurring during the term of this Agreement, and referral fees earned through the date of termination will remain payable only if the related orders are not canceled or returned by a customer. In addition, we may invoice you for referral fees that were paid to you prior to termination if those referral fees relate to Qualifying Products that are subsequently canceled or returned by a customer. In the event any other overpayment is made by us, you agree to promptly remit such excess payment upon notification by us. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
You shall not create, publish, distribute, or permit any written material (e.g., press releases, marketing material or screen shots) that makes reference to us without first submitting such material to us and receiving our prior written consent, which we may withhold in our sole discretion.
12. Licenses and Use of the Viatek Logos and Trademarks:
a. We grant you a non-exclusive, non-transferable, revocable license to (i) access our site through the Qualifying 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 designated in the Offer (collectively, the "Licensed Materials"), only as provided to you through Viatek and solely for the purpose of generating the sale of Viatek products from your site. You acknowledge that this Agreement does not provide you with any intellectual property rights in the Licensed Materials other than the limited rights contained herein. We reserve all of our rights in the Licensed Materials and of our other proprietary rights. You may not sublicense, assign or transfer any such licenses for the use of the Licensed Materials, and any attempt at such sublicense, assignment or transfer is void. We may terminate your license to use the Licensed Materials for any reason at any time in our sole and absolute discretion.
b. You shall not make any specific use of any Licensed Materials for purposes other than generating the sale of Viatek products from your site, without first submitting a sample of such use to us and obtaining our prior written consent, which we may withhold in our sole and absolute discretion.
c. Your license to use the Licensed Materials is also subject to the following guidelines:
* You may use the Licensed Materials only for purposes expressly authorized by us.
* You may not alter, modify, or change the Licensed Materials in any way; for example, you may not change the proportion, color, or font of any trademark.
* You may not display the Licensed Materials in any manner that implies our sponsorship or endorsement of your products, services or site outside of your involvement in the Program.
* You may not use the Licensed Materials to disparage Viatek, its products or services, or in a manner which, in our sole judgment, may diminish or otherwise damage the goodwill in our name and the Licensed Materials.
* Each Viatek trademark must appear by itself and must be surrounded by sufficient empty space on all sides in order to avoid unintended associations with any other objects (including, without limitation, type, photography, borders and edges).
* You shall not use the Licensed Materials as a feature or design element of any other logo.
* Your use of the "Viatek" name or logo shall be in a manner that is clearly less prominent than that of your products, trademarks, logos and/or site name.
* You must include the following notice on any materials you create that include the "Viatek" logo: The V Design and Viatek are registered trademarks of Viatek Brands, Inc.
* No copying of any image on our site except for those links specifically provided to you under this Agreement.
We reserve the right in our sole discretion to modify these guidelines at any time upon prior written notice and the right to take action against any use that does not conform to these guidelines.
d. You understand and agree that Viatek Brands, Inc., a related company of Viatek, owns the Licensed Materials and may be a necessary party in any undertaking to enforce this Agreement.
WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF 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.
14. Representations and Warranties:
You hereby represent and warrant to us as follows:
a. This Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms, and you agree not to contest the validity or enforceability of this Agreement under the provisions of applicable law relating to whether certain agreements are to be in writing or signed by the party to be bound thereby.
b. Any material displayed on your site will not: (i) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, anti-discrimination or false advertising; (vi) promote violence or contain hate speech; (vii) promote discrimination based on race, age, sex, religion, nationality, sexual orientation or disability; or (viii) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
Except as otherwise provided in this Agreement or with our prior written consent, you agree that all information including, without limitation, the terms of this Agreement, our business and financial information, our customer lists, and our pricing and sales information, shall remain strictly confidential and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than you or your affiliates. Notwithstanding the foregoing, you may deliver a copy of any such information (a) pursuant to a subpoena issued by any court or administrative agency, (b) to your accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process.
16. Limitation of Liability:
We will not be liable for indirect, special, exemplary, consequential or incidental damages, or any loss of revenue, profits or data, arising in connection with this Agreement, the Program or Viatek, 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.
You acknowledge that by entering into this Agreement, we do not assume and should not be exposed to the business and operational risks associated with your business, or any aspects of the operation or content of your Web site(s). Accordingly, you hereby agree to indemnify and hold harmless us and our respective directors, officers, employees, agents, shareholders and members, from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses (including court costs and reasonable attorneys fees) even if such claims are groundless, fraudulent or false (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 breach or alleged breach of any representation or warranty or breach of a covenant or agreement made by you herein, (ii) any claim arising from or connected with any of the content or activities of your site (including without limitation any activities or aspects thereof or commerce conducted thereon) or related business, or (iii) your misuse, unauthorized modification or unauthorized use of the services or materials provided by us or hereunder.
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 Viatek or otherwise communicating such change to you. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures or 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 THE VIATEK WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
19. Independent Investigation:
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT. 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.
a. No Agency. You and Viatek are independent contractors, and nothing in this Agreement (including any Offer) 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.
b. Governing Law; Venue. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the United States and the State of Minnesota, 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 Hennepin County, Minnesota, and you irrevocably consent to the jurisdiction of such courts.
c. Notice. Any notices required or permitted by this Agreement must be delivered to Viatek via registered mail to:
Viatek Consumer Products Group Inc.
6881 Kingspointe Pkwy Ste 7
Orlando, FL 32819
Any notices required or permitted by this Agreement or communications in connection with the Program will be sent to you by Viatek via e-mail at the address you provided in your Affiliate Application.
d. Severability. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other provision may be invalid or unenforceable in whole or in part.
e. Assignment. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent, which may be withheld in our sole discretion. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
f. Waiver. 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.
g. Equitable Relief. The parties agree that any breach of either of the party's obligations regarding trademarks, service marks, trade names, confidentiality, links or the removal of links, and/or user data may result in irreparable injury for which there may be no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party's obligations regarding trademarks, service marks, trade names, confidentiality, links or the removal of links, and/or user data, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.
h. Force Majeure. You acknowledge that Viatek's servers, equipment, and services (e.g., tracking and reporting) may be subject to temporary modifications or shutdowns due to causes beyond VIatek's reasonable control. Such temporary service interruptions will not constitute a material breach of this Agreement.
i. Survival. Section 10 (Term), 15 (Confidentiality), 16 (Limitation of Liability), 17 (Indemnification) and 20 (General), including all subsections thereof, shall survive any termination of this Agreement.