Each participant in the
affiliate program offered by OnyaList - JAM
Marketing Inc. (the “Program Operator”) at
http://OnyaList.com/affiliates.html (the “website”)
expressly agrees to this affiliate agreement.
NOTICE: Please read this
agreement carefully. Unless you expressly agree and
consent to this agreement, you may NOT participate
in the affiliate program. By participating in the
affiliate program, you are agreeing to comply with
and be legally bound by the terms and conditions of
this contract. If you do not agree to all of the
terms of this agreement, please do not register for
the affiliate program.
This agreement
incorporates the Program Operator's Terms and
Conditions of Use (located on this website) herein
as if it were set forth in full.
Throughout this
agreement, “affiliate program” refers to the
affiliate program operated by the Program Operator
in part for the website.
AFFILIATES
Each affiliate is an
independent contractor of the Program Operator and
not an employee. Nothing herein is intended to
create an employer/employee relationship.
COMMISSIONS & REFERRAL
FEES
Whenever someone orders
through your affiliate link, your affiliate ID is
credited with a referral fee. When another affiliate
registers as an affiliate using your affiliate link,
your account is credited as the Sponsoring
affiliate. You do not earn a referral fee for any
other affiliate's registration. The commission/
referral fee amount varies from product, service or
opportunity. The rate at which your referral fee is
generated can be found on the website and is subject
to change at any time. If the website is silent as
to the commission rate, then the base rate is
varies.
Before any US affiliate
may be a sent a commission check, the affiliate must
submit to the Program Operator identification
information. Such identification information shall
include, at a minimum, a W9 form or business EIN
number. These documents shall be faxed to the
Program Operator as per the instructions sent in
your "Welcome, affiliate" email. You will not
receive any payment of commission/referral fees
until such time as you submit the required
documentation to the Program Operator.
Commissions on products
and services are paid at the rates as indicated on
the website. The Program Operator strives to pay
similar rates on further products, services, and
opportunities, but reserves the right to pay a
different scale if necessary.
INCOME TAX LIABILITIES
Each affiliate acts as an
independent contractor and as such is responsible
for any or all United States, state, or foreign
income taxes and any other tax liabilities that
affect or concern the sales of the products or
services, in your state or location. If you are NOT
a resident of the United States, the Program
Operator will withhold the appropriate U.S. income
tax applicable to foreign nationals, prior to your
receipt of any commissions. The Program Operator
does so pursuant to the United States Internal
Revenue Service laws (also known as the United
States Tax Code) and other applicable laws. It is
the affiliate's sole responsibility, and not the
responsibility of the Program Operator, to take any
steps necessary to recover these sums under the Tax
Code and other applicable laws.
EMBARGOED NATIONS &
SPECIALLY DESIGNATED NATIONALS
The United States
controls the export of products and information.
Each affiliate agrees to comply with such
restrictions and to not export or re-export the
materials (including software) to countries or
persons prohibited under the export control laws. By
becoming an affiliate, you are agreeing that you are
not in a country where such export is prohibited or
are not a person or entity to which export is
prohibited. You are responsible for compliance with
the laws of your local jurisdiction with regard to
the import, export, or re- export of the materials
(including software).
Each affiliate is
responsible for compliance with all applicable U.S.
laws and regulations, including but not limited to,
those laws pertaining to export control. By
registering as an affiliate, you warrant that you
are not a citizen or resident of a country
designated as having Embargoed Nation Status and
further, you also warrant that you are not on the
list of Specially Designated Nationals or Blocked
Persons maintained by the U.S. Treasury Department.
The products and/or services are exported from the
United States in accordance with the Export
Administration Regulations. Diversion to other
countries is contrary to U.S. law and is prohibited.
In compliance with the
United States Patriot Act, only those who have
provided appropriate identification information and
do not reside within an embargoed nation and who are
not listed on the Specially Designated Nationals
list may receive commission checks paid by either
the Program Operator.
COMMISSION SCHEDULE
Commissions are paid once
per week by payment processor, and are paid by the
Program Operator.
There is a minimum
commission amount of $50.00. This is the minimum
amount that you must earn before you will be paid
commissions by check. In any commission period, your
commission must exceed this amount before you will
receive any sums for that period. Commissions below
this minimum amount will be held until such time as
the commission equals or exceeds this amount.
Commissions are not paid
for any sales for which payment has not been
received, or for any transaction that has been
rejected for any reason.
We are not responsible
for paying interest to affiliates for accrued but
not yet delivered commission payments.
If a transaction incurs a
charge-back, or if an online transaction is not
completed in every way, no commission payment is due
to the affiliate. If a commission has already been
paid, then it will be deducted from an active
affiliate's future commissions.
All commissions are paid
in US Dollars by PayPal, AlertPay or Business Check.
Affiliates requesting Business Checks will have a
processing fee of $3.00 deducted from the check.
This fee may change at any time.
Each affiliate is
responsible for selecting the payment processor,
through which to receive their commissions/referral
fees, from the payment processors supported by the
Program Operator. If you elect a payment processor
through which to receive your commissions and you
later terminate the account or the account becomes
unavailable for any reason, the Program Operator is
not responsible for your not receiving the money.
Each affiliate is responsible for always maintaining
the payment processor through which they receive
their commissions/referral fees OR selecting an
alternate method of payment supported by the Program
Operator. This election is entirely made by the
affiliate and the Program Operator assumes no
responsibility for non-receipt of payments made
according to the payment processor elected by the
affiliate, or the affiliate's lack of ability to
then conform to the payment processors or processes
supported by the Program Operator. The Program
Operator assumes no responsibility for an affiliate
not electing a payment processor. If an affiliate
fails to elect a payment processor, any sums due
will be paid via check and any fees applicable to
payments by check or bank draft will be deducted.
MIXING OF PRODUCTS
As an affiliate of the
Program Operator, your website on which you
advertise any products or services of the Program
Operator may only include products that are not
capable of being viewed by persons 13 years of age
or younger unless the Program Operator specifically
allows such products. Your website may NOT contain
any content or images that are NOT suitable for
being viewed by persons 13 years of age or younger
if you include any reference whatsoever to the
Program Operator, the website, the eBook(s), or your
affiliate Link. On any website on which you include
any reference whatsoever to the Program Operator,
its products, services, and eBooks, you may NOT
include any reference whatsoever to any form of
"Adult" content. Any violation of these requirements
will result in immediate termination of your
affiliate status and you shall forfeit any
commissions/referral fees that may be due. In the
event that any violation of these requirements
results in the suspension or termination of any
payment processor for or the Program Operator, you
shall be liable for liquidated damages in the amount
of $10,000 as well as actual and any consequential
or actual damages that or the Program Operator may
incur.
PAYMENT PROCESSOR FEES
All commissions are
calculated based on the net transaction. In other
words, all payment processor fees are first deducted
from the sums collected from the customer. Then, all
payment processor fees are deducted. The remaining
amount is a commissionable sale. The commission rate
listed on the website is then applied to determine
the amount due the affiliate. Any sums paid for
payment processor fees are not commissionable. The
Program Operator may also charge a per transaction
fee for every transaction processed. In the event
that a per-transaction fee is applied, the amount of
the fee can be seen on the website. Any such fee is
not commissionable and is also deducted from the
sums paid by the customer, prior to the calculation
of any commission.
SPAM & UNSOLICITED
COMMERCIAL EMAIL (UCE)
The Program Operator does
not tolerate the sending of unsolicited bulk emails
(UCE or SPAM) which promote, or make reference to
the Program Operator, or any of their associated
companies or websites, Partners, or employees, the
websites, products or services. The provisions of
the Terms and Conditions pertaining to UCE or SPAM
shall apply to each affiliate. Any affiliate who, in
the opinion of the Program Operator, breaches this
rule will have their affiliate status canceled and
any outstanding commissions will be forfeited.
UNPROFESSIONAL CONDUCT
The Program Operator and
their associated companies operate with the
strictest codes of professional conduct. Any
affiliate who brings the Program Operator or their
employees, partners, or associates into disrepute,
or who promotes any form of slander, racism, or
unfair business practices, will have their affiliate
status canceled and any outstanding commissions will
be forfeited.
The Program Operator
reserves the right to reject any affiliate
application if, in the Program Operator's opinion,
that person or entity violates established laws or
commonly held standards of decency. For example, we
will reject applications from any person or company
that promotes any form of violence, illegal
activities, or from applicants who the Program
Operator prefers not to be associated with.
AFFILIATE SALES &
TRACKING
After signing up for the
affiliate program, you will receive a unique
affiliate URL which you will use to advertise the
website. When someone clicks through this URL, a
cookie will be set in their browser with your
affiliate ID and their IP address may also be logged
with your affiliate ID. During that visit to the
website or any later visit, when a purchase is made
the commission will be given based on the existence
of the cookie.
In order to receive
proper credit for sales, a person or entity must
purchase through your unique affiliate URL. Masking
or cloaking of the links (whether done by software
or by a script and sometimes referred to as
"affiliate link cloaking") may or may not work with
parts of the Sites. The Program Operator allows
masking or cloaking but you must provide a
repeatable process for our verification of the
cloaked link, otherwise the use of the masked or
cloaked link is disallowed.
TERM & TERMINATION
This agreement will begin
upon your sign-up with the affiliate program and
will end when either you or the Program Operator
terminates your affiliate status, or if your account
is inactive in any continuous twelve month period.
An affiliate may terminate this agreement at any
time, and for any reason, by writing to - or
emailing - the Program Operator at the email address
listed on the website. The affiliate may not
transfer this agreement, or any rights conveyed in
this agreement, to any third party whatsoever.
The Program Operator may
also terminate this agreement at any time, and for
any reason, by writing to affiliate at the email
address listed in the affiliate's Profile, with 30
days notice. The Program Operator may transfer this
agreement to any party whatsoever, at any time, and
this agreement shall remain in full force and
effect, without notice to affiliate. However, if
this agreement should terminate for cause due to
violation of this agreement or the Terms and
Conditions, this agreement shall terminate
immediately and affiliate shall forfeit all right to
any commissions then due.
RIGHTS TO MODIFY
AGREEMENT
The Program Operator, and
its associated companies may, in good faith, modify
any of this agreement and/or the Terms and
Conditions (including the affiliate Commission
Schedule), at any time and at its sole discretion,
by posting a change notice or a new agreement on the
website. These changes will come into force
immediately upon posting. The affiliate's continued
participation in the affiliate program following the
said posting of a change notice or new agreement
shall constitute binding acceptance by the affiliate
of the change.
If any modification to
this agreement is not acceptable to the affiliate,
the affiliate's only recourse is to terminate this
agreement. Upon termination of this agreement, the
former affiliate must remove all affiliate links and
graphics from its web site, and refrain from
publishing same in any manner whatsoever.
NO MISUSE
It is understood that any
individual that uses the Program Operator system
shall not use it in connection with obscene,
defamatory, slanderous, hateful, illegal or
politically disruptive material, the definition of
which shall be at the sole discretion of the Program
Operator. It is also understood that affiliates
shall not try to cheat the system in an effort to
increase their payments due. If such misuse is
detected, the affiliate will be immediately
terminated as an affiliate and any sums paid and any
sums payable as and for commissions will be
withheld. All affiliates further agree to refrain
from engaging in any hostile activity toward the
system. Any individual that engages in such hostile
activity, such as hacking, shall be held liable for
any loss sustained by the Program Operator, or its
associates due to such action.
AS-IS ONLY
There is no warranty or
guarantee of any kind with respect to the Program
Operator system as far as reliability, stability,
quality or dependability. This means that the
Program Operator, or its associates is not
responsible for any loss or damage incurred directly
or indirectly due to the use of the Program Operator
website, products, services, or any other facet of
the system. This shall include, but is not limited
to, any system malfunction, period of being
inoperative or unavailable, loss of data or
discontinuation of service, other inconveniences.
FEES
Affiliates shall be
charged NO FEE by the Program Operator for setting
up an account to join affiliate programs or to join
any program.
ELECTRONIC COMMUNICATIONS
& EMAIL
The Program Operator
requires your primary email address be listed in
your affiliate Profile. Affiliates will not be able
to use the website or participate in the affiliate
program until their email addresses are verified.
Those who fail to verify their email address or use
an email address that generates an error response
consistently (e.g., "User is over quota" or "Mailbox
full") will forfeit any commissions due and this
contract will be terminated immediately. You may not
use an email address with an auto responder as your
Program Operator email address. When you visit the
Program Operator's websites or send emails to, you
are communicating electronically. You consent to
receive communications from the Program Operator
electronically. The Program Operator will
communicate with you by email or by posting notices
on this site. You agree that all agreements,
notices, disclosures and other communications that
the Program Operator provides to you electronically
satisfy any legal requirement that such
communications be in writing. If you are an
affiliate, you understand that you may NOT opt out
of any emails that you receive from the Program
Operator.
As an affiliate, you must
continually have a valid email account on file with
the Program Operator or we reserve the right to
terminate your participation immediately, without
any refund of any license fees paid or payment of
any commission due.
UNAUTHORIZED CHARGING OR
RECEIPT OF PAYMENTS THROUGH THE SITES
No affiliate, or other
person or entity may use the website, or the Program
Operator payment processing system, for private
transactions. Any revenue collected through the
website or through the Program Operator payment
processing system may become the sole property of
the Program Operator. Any revenue collected through
the Program Operator payment processing system may
become the sole property of the Program Operator.
Specifically, affiliates may not link to the website
for processing of products or services that are not
wholly sponsored by the Program Operator and
authorized by the Program Operator and further, may
not link to the website for processing of any
products beyond what the Program Operator has
identified as salable products for the website and
specific affiliate sales. Should any affiliate of
the Program Operator or other person or entity
construct links that process orders through the
Program Operator payment processing system, the act
will be considered an attack of computing resources
with intent to damage the website and therefore
treated as a serious computer crime. Violators will
be prosecuted to the fullest extent of the law.
CHARGING OR RECEIVING ANY
PAYMENT FOR ASSISTING YOUR AFFILIATES
The progress of any
affiliate benefits the Program Operator in many
ways. If You recruit, sponsor, or obtain an
affiliate through the websites, by any means, You
should always be willing to assist such affiliate at
no charge to such affiliate. If you are unwilling to
assist such affiliates without charge, your
affiliate status with the Program Operator will be
terminated immediately and any commissions due will
be withheld permanently as partial compensation for
managing the associated
and impacted affiliates.
AFFILIATE IDENTIFICATION
NUMBERS
You will be provided an
affiliate identification number. Your affiliate ID
number may be numeric and/or CaSe sEnSitIvE. For
example, the code 'learn_more' is different from
'Learn_More'. You are responsible for maintaining
the secrecy and security of your affiliate ID number
and password. You agree to hold the Program Operator
harmless in the event that any such information is
shared by you with any other person or entity
whatsoever.
NO PREDATORY ADVERTISING
All affiliates in the
affiliate program agree to refrain from any type of
predatory advertising practices, the definition of
which shall be at the sole discretion of the Program
Operator, and shall include, but not be limited to,
dynamically replacing the affiliate ID of one
affiliate with that of another with the effect of
"stealing" the commission away from the affiliate
that earned it, whether this be intentional or not.
Affiliates may not adjust any of the supplied
affiliate links to reset cookies or bypass other
safeguards in the system. Affiliates understand that
engaging in such practices is grounds for immediate
termination and
forfeiture of any earned
commissions.
LIABILITY
The Program Operator will
not be liable for indirect or accidental damages
(loss of revenue, commissions) due to affiliate
system sale tracking failures, commission processing
system failures, losses of database files or backups
thereof, attacks on computing resources, computer
viruses, the continued viability of their products,
any results of "intents of harm" to the program, or
acts of God or Nature. The Program Operator makes no
claim that the operation of the websites or that the
Program Operator network will be error-free nor will
the Program Operator be held liable for any
interruptions or errors.
MISCELLANEOUS PROVISIONS
a) If any part of this
agreement or the Terms and Condition is declared
void, this agreement and the Terms and Conditions
shall, to the maximum practicable extent, be
construed without reference to that part. No term or
provision of the Agreement shall be waived unless in
writing and signed by the party waiving the
provision and any waiver shall apply only to the
specific event or situation which it describes and
shall not be continuing. No affiliate may assign or
sublicense this agreement without the Program
Operator's prior written consent.
b) All legal or other
fees incurred in collecting returned checks or
declined credit cards or any other lack of payment
related to a sale made by an affiliate will be
payable by the affiliate. Any sums not collected
from the affiliate or affiliate's customer are not
commissionable, and any fees incurred during
processing or handling of sales made by the
affiliate will be deducted in whole from any
commissions due to the affiliate. Further, in the
event that the commissions due the affiliate are
insufficient to cover any sums, the affiliate agrees
to pay the full amount to the Program Operator.
c) IF THE FOREGOING
LIMITATIONS OR THE LIMITATIONS WITHIN THE TERMS AND
CONDITIONS ARE HELD TO BE UNENFORCEABLE, THE PROGRAM
OPERATOR'S LIABILITY FOR DAMAGES UNDER THIS
AGREEMENT TO ANY PERSON OR ENTITY SHALL NOT EXCEED
THE AMOUNT OF FEES PAID BY THAT PERSON OR ENTITY FOR
THE PRODUCT, SERVICE, AND OR EBOOK OR SOFTWARE
(LICENSE).
d) To the extent you have
in any manner violated or threatened to violate the
Program Operator’s intellectual property rights, the
Program Operator may seek injunctive or other
appropriate relief in any court located in
Manhattan, New York, USA and you consent to
exclusive jurisdiction and venue in such courts. Use
of the Program Operator website is unauthorized in
any jurisdiction that does not give effect to all
provisions of these terms and conditions, including
without limitation this paragraph. You agree that no
joint venture, partnership, employment, or agency
relationship exists between you and the Program
Operator as a result of this agreement or use of the
website, products, and/or services. The Program
Operator's performance of this agreement is subject
to existing laws and legal process, and nothing
contained in this agreement is in derogation of the
Program Operator's right to comply with
governmental, court and law enforcement determined
to be invalid or unenforceable pursuant to
applicable law including, but not limited to, the
warranty disclaimers and liability limitations set
forth above, then the invalid or unenforceable
provision will be deemed superseded by a valid,
enforceable provision that most closely matches the
intent of the original provision and the remainder
of the agreement shall continue in effect.
e) This Agreement shall
be governed and construed in accordance with the
laws of New York, USA applicable to agreements made
and to be performed in New York, USA. You agree that
any legal action or proceeding between the Program
Operator and you for any purpose concerning this
agreement or the parties' obligations hereunder,
will first attempt to be resolved with the help of a
mutually agreed-upon online mediator. Any costs and
fees (other than attorney fees) associated with the
mediation will be shared equally by each of us.
f) If it proves
impossible to arrive at a mutually satisfactory
solution through online mediation, we agree to
submit the dispute to binding arbitration at the
following location: for legal actions or proceedings
between the Program Operator and you, in Manhattan,
New York, USA under the commercial rules of the
American Arbitration Association. Judgment upon the
award rendered by the arbitration may be entered in
any court with jurisdiction to do so.
In no case shall you have
the right to go to court or have a jury trial. You
will not have the right to engage in pre-trial
discovery except as provided in the rules; you will
not have the right to participate as a
representative or member of any class of claimants
pertaining to any claim subject to arbitration; the
arbitrator's decision will be final and binding with
limited rights of appeal.
g) Any cause of action or
claim you may have with respect to the website, the
products, the services, or the eBook(s), must be
commenced within ninety (90 days after the claim or
cause of action arises or such claim or cause of
action is barred. The Program Operator’s failure to
insist upon or enforce strict performance of any
provision of this agreement shall not be construed
as a waiver of any provision or right. Neither the
course of conduct between the parties nor trade
practice shall act to modify any provision of this
agreement. The Program Operator may assign its
rights and duties under this agreement to any party
at any time without notice to you. Use of headings
in this document is for convenience only and does
not identify legal boundaries or terms explicitly.
h) The Program Operator
may modify this agreement, and the agreement this
creates, at any time, simply by updating this
posting and without notice to you. This is the
ENTIRE agreement regarding all the matters that have
been discussed.
i) The Program Operator
may transfer any rights or responsibility that it
may have to any person or entity whatsoever. Nothing
herein shall alter or encumber the right of the
Program Operator to transfer any such rights or
responsibilities. Any transfer by the Program
Operator shall cause this agreement, and any other
agreement then in effect (as well as any other
contract between you and the transferring party) to
transfer simultaneously, all without permission.
j) Should this affiliate
program be deemed illegal in any jurisdiction, the
Program Operator has the right to immediately
terminate this program, without recourse. If the
payment processors utilized by the Program Operator
determine that sales made through affiliates cannot
be processed through the payment processor, then the
Program Operator has the right to immediately
terminate this Program, without recourse. Nothing
herein is intended to imply that the Program
Operator will always offer any affiliate program, or
this affiliate program, for all products, services,
and/or opportunities sold by the Program Operator on
the websites or that the Program Operator will offer
any affiliate program whatsoever.
Any rights not expressly
granted herein are reserved.
Copyright © 2008-2013 Law
Office of Michael E. Young PLLC, and licensed for
use by the owner of this website at
http://OnyaList.com. All Rights Reserved. No portion
of this document may be copied or used by anyone
other than the licensee without the express written
permission of the copyright owner. |
