MerchantsBay Affiliate Agreement
This Affiliate Program Agreement (the "Agreement") contains the terms and conditions that apply to your participation in the MerchantsBay Affiliate Program (the "Program"). By checking the agreement box on the end of the affiliate application, you acknowledge that you have read and understand the terms and conditions of the Agreement and you agree to be legally bound by the Agreement. As used in this Agreement, "we" means MerchantsBay, and "you" means the affiliate. "Site" means a World Wide Web site and, depending on the context, refers either to MerchantsBay's site located at the URL www.merchantsbay.com, or to the site that you will link to our site (which you will identify in your Program application).
Joining The Affiliate Program
To become an affiliate you must be 18 years of age or older. To become an affiliate, you must submit a Program application and IRS tax form 1199 Form W-9 Request for Taxpayer Identification Number and Certification. You must send these to MerchantsBay via fax or US mail. Fax information to: 856-608-0721. Mail information to:
BCC High Tech Incubator
900 Briggs Road
Mt. Laurel NJ 08054
Upon receipt of these documents, you will automatically be enrolled into our program. We reserve the right to reject your application upon review if we determine (in our sole discretion) that your site is unsuitable for the Program. We prohibit sites such as, but not limited to, adult content sites, gambling sites, sites with any racial content, or any other content we feel is not suitable to be affiliated with MerchantsBay. If we reject your application, you are welcome to reapply to the Program at any time.
We DO NOT permit SPAM (mass unsolicited email, posting ads to irrelevant newsgroups, or any other online marketing methods we feel may be offensive to others).
If you live outside of The United States and do not have a United States Social Security Number you may be subject to withholding of income tax equivalent to the amount you would be required to pay as an independent contractor living in The United States.
Linking To MerchantsBay
We will provide you with your own unique Captainís Code which your referred buyers will need to enter upon checkout (either through the web site or through our Customer Service toll free number). Linking Banners will be provided to you once you enter the Program. This Linking Banner can be used, but is not limited to, linking via banner images, text links or links from emails or newsletters.
After signing up for the Program you may refer potential customers to MerchantsBay and earn a commission equal to 10% of gross sales (less taxes and shipping) upon their approval of a purchase made by the customer on the MerchantsBay web site. You will not get commissions for purchases that do not have your Captainís Code. You will not get commissions for purchases that are canceled. Buyers can pay MerchantsBay by credit card, check or PayPal. You will not receive commissions on purchases that MerchantsBay did not get paid for (where credit card payment has been denied, checks, checks bounced or were not received and /or buyers that did not have valid PayPal accounts). Credit card chargebacks (purchase reversals) and returned merchandise will be deducted from the commissions due you.
Commissions will be paid every month for a minimum of $25. If the $25 minimum commission has not been reached, the outstanding commission will roll over to the next month until the minimum has been met.
Policies and Pricing
We will process orders placed by customers who visit MerchantsBayusing your link page and will be responsible for all aspects of order processing and fulfillment. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. Customers who buy products through this Program will be deemed to be customers of MerchantsBay. Accordingly, all MerchantsBay rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged in accordance with our own pricing policies. Product prices and availability may vary from time to time. Because the price of any product is subject to change at any time, you may not include price information on your site. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
We grant you a nonexclusive, revocable right to use any graphic image and text necessary to establish links to MerchantsBay from your site, other online or offline marketing materials and such other images for which we grant express permission, solely for the purpose of identifying you as an affiliate and to assist in generating sales. You may not modify any graphic image or text, or any other of our images, in any way. We reserve all of our rights in the graphic image and text, any other images, our trade names and trademarks, and all other intellectual property rights. You agree to follow our Trademark Guidelines, as those guidelines may change from time to time. We may revoke your license at any time by giving you written notice via e-mail or postal mail.
You will be responsible for both online and offline marketing efforts. You will be responsible for creating all offline marketing materials including, but not limited to, newspaper and magazine ads, television and radio ads, brochures, business cards, or any other offline marketing materials. If you market via a website 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
Ensuring that materials posted on your site and/or distributed through your sales efforts 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 and/or distributed through your sales efforts 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 and offline marketing efforts.
Termination of Your Participation in the Affiliate Program
You will become an affiliate immediately upon our acceptance of your Program application and will remain an affiliate until either party terminates the Agreement. You may terminate this agreement with or without cause by giving MerchantsBay written notice via email or regular mail. We may terminate this agreement via termination of the affiliate program. We may also terminate your participation in the Affiliate Program at any time if we determine (in our sole discretion) that your site and sales campaigns are unsuitable for the Program.
We may also terminate your participation in the Affiliate Program if you engage in any form of spamming or unsolicited mass faxing.
We may also terminate your participation in the Affiliate Program if we find that you have acted in an unprofessional or unethical way as an Affiliate of MerchantsBay or if we find that you have breached this agreement in any way. We will strive to give all affiliates fair treatment and will only terminate an affiliate's participation in the agreement if we feel it is absolutely necessary in order to maintain integrity of the Program. Upon the termination of this Agreement or your participation in the Affiliate Program, you must immediately cease use of and remove from your site and sales campaigns, all links to the MerchantsBay web site, and all MerchantsBay trademarks, trade dress and logos, and all other materials provided by or on behalf of us to you in connection with the Program. You are only eligible to earn sales commissions on sales occurring during the term, and sales commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may 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 in our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the marketing fee schedule, 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.
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 us. 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, 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 marketing fees paid or payable to you under 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 a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site and Customer Service telephone number will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
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 independent contractor marketing efforts and/or website. 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.
This Agreement will be governed by the laws of the United States and the state of New Jersey, 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 Trenton, New Jersey 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 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.