Affiliate Operating Agreement
This Affiliate Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Smallappliance.com Affiliate Program (the "Program"). As used in this Agreement, "we" means Smallappliance.com, and "you" means the applicant. "Site" means a World Wide Web site and, depending on the context, refers either to SmallAppliance.com's site or to the site that you will link to our site.
1. Application Process
To apply to the Program, you will submit a complete Program application on our site. We will evaluate your application in good faith and will notify you of its acceptance or rejection. We will reject your application if we determine, at our sole discretion, that your site is unsuitable for the Program. Unsuitable sites include but are not limited to those that: promote sexually explicit materials; promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; promote illegal activities; or violate intellectual property rights.
2. Order Tracking
We will track and process product orders placed by customers who follow special links from your site to our site. We will send you reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time at our discretion. To permit accurate tracking, reporting, and commission accrual, you must ensure that the special links between your site and our site are properly formatted. When a customer comes to our site from your links, our web server sends a client-side text string (cookie) containing your affiliate code to their computer. Our system uses those strings to identify your site. For customers whose web browsers have been set to reject text strings, our system will track the primary URL address the customer came from, and where possible match that address to your site for credit.
3. Qualifying Products
For a product sale to qualify for a commission, the customer must follow a link in the format specified by us from your site to ours; purchase the product using our online ordering system; accept delivery of the product at the shipping destination; and remit full payment to us. We reserve the right to reject orders that do not comply with requirements that we periodically may establish. We will credit your site for every qualifying purchase a customer makes, including repeat purchases, so long as your site was the last one to have made the referral and so long as the customer's purchases are completed within 30 days of having been referred.
You will earn commissions based on the sale price of Qualifying Products according to schedules we establish. "Sale price" means the price referred to in our catalog as "Sale" and excludes all other costs associated with an order. The current commission schedule is 7% for all Parts & Accessories and 4% for all appliances featured in the Appliance Store area of our site. We will pay commissions monthly approximately 30 days following the end of the calendar month in which they are earned. We will send you a check for the commissions earned on products that were shipped during that month, less any taxes that we are required by law to withhold. However, if the commissions payable to you for any month are less than $20.00, we will hold those commissions until the total amount due is at least $20.00 or, if earlier, until this Agreement is terminated. If a product that generated a commission is returned by a customer, we will deduct the corresponding commission from your next payment. If thereafter your site accrues no commissions during the following month, we will send you a bill for the overpayment.
5. Policies and Pricing
Customers who buy products through this Program will be deemed to be customers of Smallappliance.com. Accordingly, all Smallappliance.com 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 for products sold under this 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 product descriptions. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
6. 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. For example, you will be solely responsible for ensuring that materials posted on your site are legal and do not violate or infringe upon the rights of any third party including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights. 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.
7. Terms of the Agreements
The terms of this Agreement will begin upon our acceptance of your Program application and will end when terminated by you or us. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn commissions on sales of Qualifying Products occurring during the term, and 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 scope of available commissions, commission schedules, 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.
9. 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 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.
10. 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. Further, our aggregate liability arising with respect to this and the Program will not exceed the total commissions 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, 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.
12. Independent Investigation
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 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.
This Agreement will be governed by the laws of the United States and the State of New York, 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 Nassau County New York, 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.