IMPORTANT ACKNOWLEDGEMENT ‐ READ CAREFULLY
THIS IS A BINDING LEGAL AGREEMENT BETWEEN YOU (THE "AFFILIATE")
AND TMI WIRELESS ("TMI"). BY SIGNING UP FOR THE TMI WIRELESS AFFILIATE PROGRAM
YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF
THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY BOUND BY EACH AND EVERY STATED
TERM, CONDITION, AND NOTICE. FURTHER, YOU ACKNOWLEDGE AND AGREE TO BE LEGALLY BOUND
BY ANY AND ALL AMENDMENTS AND MODIFICATIONS MADE TO THE AGREEMENT, FROM TIME TO TIME
AS POSTED ON THE WEBSITE, AFTER YOUR ORIGINAL ACCEPTANCE. IF YOU DO NOT AGREE TO
THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU WILL NOT HAVE THE OPPORTUNITY
TO PARTICIPATE IN THE TMI WIRELESS AFFILIATE PROGRAM.
TMI WIRELESS, INC. AFFILIATE AGREEMENT TERMS, CONDITIONS AND NOTICES
SECTION 1: Basic Recitals and Definitions
"Acceptance" shall mean that the Affiliate has checked the box agreeing to the Terms and Conditions of the TMI Wireless Affiliate Program on the signup form, thereby agreeing to be legally bound by all the terms and conditions of the Agreement, as stated herein and as amended or modified from time to time hereafter. TMI reserves the right to reject the Affiliate's application at any time after the Affiliate has indicated an "Acceptance."
"Affiliate" shall mean a person or entity that submits an application to TMI Wireless in accordance with and subject to the terms of this Agreement, which is approved by TMI Wireless, and excludes any Affiliate who is later terminated from the TMI Wireless Affiliate Program (the "Affiliate Program") set forth in this Agreement. Please note that throughout this Agreement, "you," "your," and "yours" shall mean the Affiliate. The purpose of the Affiliate Program is to allow the Affiliate to create an HTML link between the Affiliate's web site and the TMI Wireless web site, subject to the terms and conditions of this Agreement. TMI reserves the right to accept or reject any Affiliate Application. An applicant for the Affiliate Program is not required to pay an application fee or purchase any of the products and services of TMI in order to qualify for the program.
"Affiliate Application" shall mean the form located on tmiWireless.com where a potential affiliate applies for acceptance into the Affiliate Program.
"Affiliate Control Panel" shall mean that portion of tmiWireless.com that is restricted by a TMI-provided login to and for internal use only by TMI and the Affiliate.
"Affiliate Profile" shall mean the web page accessed through the Affiliate Control Panel that contains certain data about the Affiliate including, but not limited to, Affiliate's (i) first and last name or business name; (ii) mailing address; (iii) telephone number; (iv) Social Security Number or Employer Tax Identification Number; and (v) desired Password and User Name.
"Affiliate Public Website" shall mean the website Affiliate publishes independently from Affiliate's relationship with TMI, and which has a separate and independent domain name that is owned by Affiliate. Such website is operated and maintained by Affiliate, or a representative or agent of Affiliate, and is the site on which Affiliate places the ID-Encoded Links to TMI websites or Products and Services.
"Agreement" shall mean this Affiliate Agreement, which contains the complete terms and conditions that apply to the relationship between TMI and the Affiliate related to the Affiliate Program, which excludes separate agreements between the parties for ancillary products or services, including without limitation, the parties' agreement related to the creation and operation of a Premium Website.
"ID-Encoded Link" shall mean the HTML code with special link formats that TMI provides to Affiliates for linking to a TMI website, and which enables TMI to identify the end user as having been directed to TMI from a specific Affiliate's web site. References to ID-Encoded Link shall also include HTML code that creates banners and graphics, in addition to HTML links.
"Licensed Materials" shall mean any and all information and materials, whether copyrighted or produced and published with or without copyright, that TMI provides to its Affiliates for use related to the Affiliate Program. The Licensed Materials include, but are not limited to, all information and materials on Affiliate's Personal Website, tmiwireless.com, Affiliate Control Panel, Premium Website and related links to other TMI data made available to the Affiliate by TMI.
"Personal Website" shall mean a TMI owned and activated website for the use (subject to this Agreement) of the Affiliate during the term of this Agreement; provided that TMI retains the sole authority and discretion to deactivate such Personal Website at any time, with or without notice or cause. To maintain a Personal Website, the Affiliate must comply with all of the terms and conditions of this Agreement. "Website" shall mean a URL web address on the Internet.
"Premium Website" shall mean any optional co-branded website service TMI offers to its Affiliates including, but not limited to, the TMI Private Label website service and any data feed service provided to affiliate through which affiliate is able to design and develop their own website featuring TMI products. Under the Premium Website option additional terms and conditions may apply.
"Product" or "Service" means any or all of the products or services offered on tmiWireless.com, tmicell.com, or and any TMI-owned website. The term "Product" means, where applicable, both the products and services offered on TMI websites.
"Proprietary Information" shall mean all confidential and proprietary information of TMI, including but not limited to, lists or other identification of Affiliates; pertinent facts or information about Affiliates, accumulated and stored by TMI, including Affiliate User Names, Website URL names and addresses, "dba" names, email addresses and phone numbers; TMI's Compensation Plan, as it presently exists or may be modified from time to time; TMI's accumulated information related to contacts and contractual agreements with Providers; and all other information obtained by or communicated to any Affiliate at any time as a consequence of or related to Affiliate's participation in the Affiliate Program. Affiliate agrees that it will not use, disclose or communicate, or permit, allow or acquiesce to the use, disclosure or communication of, any Proprietary Information, except only in accordance with this Agreement. Affiliate agrees to maintain the Proprietary Information in strict confidence and shall exercise all necessary precautions to safeguard the secrecy of the Proprietary Information and to prevent its unauthorized disclosure to others. All Proprietary Information remains the intellectual property of TMI. This Section shall survive termination under this Agreement.
"Proprietary Marks" shall mean the trademarks and service marks "TMI," "TMI Wireless," "tmiWireless.com" plus, any and all of TMI's names, trade names, trademarks, service marks and logos that presently exist and may be created, designed or otherwise originated from time to time for use in connection with TMI's marketing of products and services. All Proprietary Marks remain the intellectual property of TMI. This Section shall survive termination under this Agreement.
"Provider(s)" shall mean a vendor that has entered into an agreement with TMI to offer the vendor's products or services through tmiWireless.com and/or TMI's Affiliates.
"Recruiting Affiliate" shall mean an Affiliate through whose ID-Encoded Link or website another Affiliate applies to the Affiliate Program.
"Sub-Affiliate" shall mean any approved applicant of the Affiliate Program that submitted its Affiliate Application using another Affiliate's Id-Encoded Link, or links located on another Affiliate's Personal or Premium Website.
"TMI" or "TMI Wireless" shall mean TMI Wireless, Inc. Please note that throughout this Agreement, "we," "us," and "our" will mean TMI.
"TMIWireless.com," "tmiwireless.com," or "tmiWireless.com" shall mean the Internet Website of TMI Wireless, Inc. at URL www.tmiwireless.com and the collection of web pages under the tmiwireless.com domain name.
SECTION 2: Relationship; Services
Business Relationship; Services; Expenses. TMI has agreed to advertise certain Products and Services of its Providers through the use its websites. TMI has created the Affiliate Program to enhance its ability to advertise such Products and Services by entering into this Agreement with certain pre-approved and authorized Affiliates. The Affiliate will provide certain advertising services for the benefit of Providers in accordance with this Agreement (the "Advertising Services"). This Agreement creates a non-exclusive independent contractor relationship between TMI and Affiliate for the mutual benefit of TMI's Providers. In exchange for performing the Advertising Services, the Affiliate will receive commission payments as set forth herein. Affiliate shall be responsible for all expenses incurred by it in the performance of the Advertising Services.
Personal Guarantee. By joining the TMI Affiliate Program, individual Affiliate, or agent for Affiliate, if Affiliate is an entity, agrees to personally guarantee the performance of Affiliate's duties and obligations pursuant to this Agreement.
Independent Contractor Relationship.
- (1) Affiliate and TMI are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship, or the relationship of principal and agent, between the parties. TMI and Affiliate agree that Affiliate's business is a separate and independent enterprise from that of TMI. Affiliate shall determine the time, method and manner of advertising the Products and Services, provided that there is compliance with all the terms and conditions of this Agreement and any other policies and procedures established, from time to time, and published or announced by TMI. Affiliate and its employees shall exercise their own discretion and judgment as to the manner of performing the Advertising Services. Affiliate shall determine its own working schedule and location in light of the needs of the particular Provider being served.
- (2) As an independent contractor, Affiliate shall pay and report all expenses that it incurs in the performance of this Agreement, including, without limitation, expenses incurred for wages and related federal and state income taxes, social security taxes, unemployment insurance, self-employment taxes and employee benefits. Affiliate shall procure and maintain workers' compensation coverage sufficient to meet the statutory requirements of every state in which Affiliate's personnel are hired to perform Advertising Services.
- (3) Neither Affiliate, nor any of its personnel, are employees of TMI or the Providers or entitled to any benefits or rights guaranteed by TMI or the Providers, or by operation of law, to their employees, including, but not limited to, group insurance, liability insurance, paid vacation, sick leave or other leave, retirement plans, health plans, pension or welfare benefits, "overtime" pay, and the like. It is understood and agreed that since Affiliate is an independent contractor, TMI will make no deductions from fees paid to Affiliate for any federal or state taxes, including income taxes or social security, and TMI has no obligation to provide worker's compensation insurance coverage for Affiliate.
- (4) Affiliate does not have express, implied or apparent authority to enter into any contract on behalf of TMI or otherwise to bind TMI to any agreement. TMI will not be liable for any obligation incurred by Affiliate, except as otherwise provided herein.
- (5) Affiliate represents and warrants that it is a separate, independent, licensed business entity, duly authorized to perform Advertising Services under this Agreement, and that it makes its professional services generally available to a wide variety of other companies on a regular basis. During the term of this Agreement, Affiliate agrees that it will not perform any work for any other person or entity that is substantially similar to the Advertising Services if the performance of such work would have a material adverse impact upon the ability of the Affiliate to perform its obligations hereunder.
Professional Standards. Affiliate shall provide and perform the Advertising Services hereunder in accordance with (i) the highest applicable ethical and professional standards prevailing at the time such Advertising Services are rendered, and (ii) any general standards, rules, regulations, policies, security procedures, and other standards specified by TMI or the Providers.
Customer Service and Product Responsibility of Provider Products.
- (1) Fulfillment of Provider Products. Affiliate acknowledges that Provider-fulfilled Products and Services ("Provider Products"), including but not limited to post-paid wireless services and satellite television services, are ultimately supplied by one or more manufacturers or service providers through one or more fulfillment Providers, that TMI does not directly manage or fulfill customer orders of Provider Products, and that TMI does not have any contractual relationships with any customers who purchase Provider Products.
- (2) Customer Service of Provider Products. Affiliates shall direct customers to the appropriate Providers customer service contacts for Provider Products, and shall in no way represent that TMI is responsible for any customer service or related function including responding to order inquiries, billing inquiries, defective products, or product returns and service cancellation.
- (3) Provider Return Policies. Provider Products purchased through TMI are subject to the respective Provider's return policies. TMI is not responsible for a Provider's return policies and TMI shall not accept returns of Provider Products. Affiliates shall not represent that TMI is responsible in any way for returned Provider Products or cancelled Services.
- (4) Provider Product Defects. TMI is not responsible for defects in Provider Products, and Affiliate shall not represent that TMI makes any warranty or representation regarding such Products.
- (5) Provider Product Quality. TMI is not responsible for the quality of Provider Products, and Affiliate shall not represent that TMI makes any warranty regarding such Products.
- Compensation Eligibility. Eligibility of the Affiliate to receive commissions is conditioned upon compliance with TMI policies. Commissions will be paid for sales originated by an Affiliate during the Term pursuant to this Agreement. TMI reserves the right to terminate your account if it is idle for more than 30 days. Maintenance of existing customer accounts and acquisition of new customer accounts are of primary importance to TMI. Compensation eligibility of the Affiliate to receive commissions and bonuses is conditioned upon compliance with TMI policies, plus performance of the Affiliate to: (i) sell at least one TMI product or service within the first 60 days of becoming a Affiliate and to sell not less than one TMI product or service for each twelve months; (ii) maintain the monthly minimum volume requirements, by the sixth month (after being accepted as an Affiliate by TMI) and each month thereafter; and (iii) maintain supervisory responsibility requirements of Sub-Affiliates as outlined herein by TMI. TMI may revoke the Affiliate's eligibility for compensation in the event the Affiliate fails or neglects to comply with the terms and conditions of this Agreement.
- In exchange for the Advertising Services, TMI shall pay Affiliate for each Final Sale (defined herein) generated through the ID-Encoded Link of such Affiliate an amount calculated pursuant to the Commission Schedule referenced in Paragraph 2.6(4) (the "Commission"). A "Final Sale" means an order placed for a Product or Service that results in TMI receiving full and complete payment of a commission from the Provider related to such sale, and which does not result in a chargeback by the Provider. Commissions charged back to TMI by the Provider for any reason, including customer early termination, will likewise result in a chargeback to the Affiliate as set forth herein. The Affiliate will be subject to such chargebacks for a period of 180 days from date of customer acquisition.
Chargebacks. If a customer chargeback occurs, and:
- (a) TMI has not yet paid Affiliate a Commission based on such sale, no Commission will be paid related to such purchase;
- (b) TMI has already paid Affiliate a Commission based on the sale of that item, TMI will deduct the amount of the disputed Commission from Affiliate's next monthly Commission payment.
- (c) If there are no subsequent Commissions due to Affiliate, TMI will send Affiliate a bill for the amount of the disputed Commission, and Affiliate agrees that it will pay that bill no later than thirty (30) days after receipt.
- Chargeback Rate. Affiliates with a monthly Chargeback Rate above 10% are subject to termination and/or commission withholding. The monthly Chargeback Rate is defined as the percentage of units sold in any given calendar month that have resulted in a customer Chargeback. By way of example, if an Affiliate sells 50 phone activations in March and 6 of these activations result in a Chargeback, the affiliate has a 6/50, or 12%, Chargeback Rate and is subject to termination and/or withholding of commissions.
- Commission Schedule. Commissions are paid on the Products and Services and at the rates as posted under the "Compensation Plan" link on tmiWireless.com, as modified from time to time. Affiliates are responsible for continuously checking tmiWireless.com and the Affiliate Control Panel for changes to the Commission schedule.
- ID-encoded Link Required. Affiliate will not earn commissions on the purchases by customers who enter a TMI website by any means other than Affiliate's ID-Encoded Link.
- Pay Cycle. Commission payments will be mailed 35-45 days after the end of the subsequent month for Commissions earned during the current month (e.g., the Commission payment for sales made in August will be mailed between October 5 and October 15 of the same year). Affiliate must be entitled to receive at least $15 in Commissions before receiving a check. Upon termination of this Agreement, TMI may hold Affiliate's final Commission payment for a longer period of time to allow for the accrual of potential future charges; provided that TMI will not withhold payment of the final Commission for greater than 180 days.
- Right of Set-off. Affiliate authorizes TMI to offset against Commissions, expense reimbursement, or any other amounts due to Affiliate from TMI, any amounts that the Provider withholds from payment to TMI related to deficiencies in the Affiliate's Advertising Services or damages caused by Affiliate and any other amounts that Affiliate owes to TMI.
- Personal Use Sales. Commissions earned on sales made by Affiliate for Products or Services purchased from Providers directly by Affiliate will be held for 180 days from the date of activation.
Legal Capacity. Affiliates who are individuals represent that they have legal capacity and have attained legal age to work and enter into contracts in the state or other authoritative locale in which the Affiliate markets the Products and Services.
Changes to Products/Services and Pricing. TMI reserves the right to change Products and Services and related pricing from time to time without prior notice. Any such changes or modifications shall become effective immediately upon posting on tmiWireless.com unless another effective date is specified.
SECTION 3: Affiliate Duties, Representations and Warranties
Accurate & Truthful Profile. Affiliate warrants and agrees that data submitted on the Affiliate Profile is and must be kept current by the Affiliate to maintain communication integrity. All of the data supplied and entered in the Affiliate Profile by the Affiliate shall be truthful, factually accurate information. Misrepresentations or fraudulent statements supplied in connection with this Agreement shall cause immediate termination of this Agreement and a right of setoff against present or future compensation allegedly due to Affiliate hereunder in an amount no greater than damages incurred or to be incurred by TMI as a result of such conduct.
Identification Number. The Affiliate warrants that it shall provide TMI with a valid identification number (ID#). In the event the Affiliate is transacting business as an individual or in any other personal format, then that ID# shall be the Affiliate's Social Security Number (SS#). In the event the Affiliate is a corporation, limited liability company, or partnership, the ID# shall be the Federal Employee Identification Number ("F.E.I.N."). In the event the purported entity does not provide a F.E.I.N., then TMI shall interpret the "entity" as an individual or group of individuals and require the appropriate SS#s. In the event the Affiliate is located outside of the USA, then the appropriate governmental or other authoritative agency ID# or United States passport number shall be submitted to TMI. The Affiliate authorizes TMI to verify the ID# submitted. The ID# shall be used by TMI for tax reporting and other lawful purposes. TMI shall not pay and the Affiliate shall not be entitled to payment of any Commissions or bonuses on Products and Services marketed prior to the receipt by TMI of the following items: (1) A completed IRS form W9 (US-based affiliates). (2) A photocopy of Affiliate's drivers license or state ID. (3) Affiliate's SSN or Federal Tax ID number. Copies of these documents must be re-submitted each time Affiliate changes the "Payable to" recipient and/or address in the Affiliate's profile.
Multiple Affiliate Accounts. Affiliate may not create multiple Affiliate accounts for any purpose without prior written approval by TMI.
Compliance with Laws and Regulations. The Affiliate warrants that it shall comply with all federal, state and local taxes and regulations governing the sale of the Products and Services, and regarding the sending of e-mails, including, but not limited to the CAN-SPAM Act, effective January 1, 2004. Affiliate shall be responsible for the payment of income tax, self-employment tax and other tax of any nature, if any, due and owing to any federal, state, county, municipal, country, province, territory or any other governmental taxing authority for the Affiliate and Affiliate's employees, if any. Such taxes are the responsibility of the Affiliate, who shall indemnify and hold harmless TMI for payment of any such taxes.
Change of Status. Affiliate is required to report to TMI any change in status that may affect Affiliate's rights to receive any Commission or other compensation from TMI. Such change in status may include, a change of marital status or a change from individual to corporation, limited liability company, or partnership. This Agreement shall not be assigned or transferred without prior written approval of TMI.
Goodwill. The Affiliate shall at all times safeguard TMI's reputation and promote the good will of TMI and the Products and Services marketed. Affiliates shall refrain from any and all conduct that may be harmful to the reputation of TMI or the Provider(s). The Affiliate shall refrain from and avoid all deceptive, misleading, unethical or discourteous conduct or practice.
Unauthorized Products and Services. Affiliate shall not use Affiliate's Public Website to promote, market or sell, directly or indirectly, products or services that are not specifically authorized in advance by TMI. The terms, "directly or indirectly," include, but are not limited to, identification of such other products or services on the Affiliate Public Website wherein a symbol thereof is identified to provide linking to another website or multiple websites that promote, market or sell products and services other than the Products and Services, notwithstanding the fact that such products and services may not be competitive. TMI reserves the right to immediately require the Affiliate to remove any reference to TMI, the Providers, the Products or Services and/or any link to a TMI website from the Affiliate Public Website when, in TMI's opinion and sole discretion, TMI determines that the Affiliate has violated the permitted use of the Affiliate Public Website as stated herein.
Limited License of Licensed Materials and Proprietary Marks. TMI hereby grants Affiliate a non-exclusive, limited license, for the Term of this Agreement, to use the Licensed Materials and Proprietary Marks solely for the purpose of advertising the Products and/or Services, subject to the Affiliate Marketing Guide (the "Affiliate Marketing Guide") or other instructions regarding the use or display of the Propietary Marks, in the manner set forth in this Agreement. Affiliate warrants and represents that it will not, directly or indirectly, use, display, duplicate, produce, reproduce, market, offer for sale, sell or distribute, in whole or in part, and shall not replicate in a deceptively similar form or style, any Licensed Materials or Proprietary Marks, except as authorized by this Agreement or prior written approval by an officer of TMI. Any license to use the Licensed Materials or Proprietary Marks terminates concurrently with the termination of this Agreement. All Licensed Materials and Proprietary Marks remain the intellectual property of TMI. This Section shall survive termination under this Agreement.
Affiliate represents and warrants that it has the ability to fully and timely perform all Advertising Services and to undertake all risks it agrees to undertake hereunder. Affiliate will promptly notify TMI in writing of any event that may have or has a material adverse impact on Affiliate's ability to perform its obligations under this Agreement.
Affiliate represents and warrants that none of the Advertising Services rendered by Affiliate under this Agreement will violate or wrongfully interfere with any contract or other right of any third party. Affiliate further represents that it shall not disclose to TMI, nor use in connection with its retention hereunder, any confidential or proprietary information, technology, works, inventions, or other materials belonging to any third party.
Affiliate represents that it is not a party to any contract, or subject to any other obligation, that might restrict Affiliate from performing Advertising Services, including, but not limited to, any agreement not to compete or any agreement not to solicit. Affiliate agrees to disclose any such contract or obligation to TMI prior to rendering any Advertising Services.
Affiliate represents and warrants that all materials prepared or provided, and all Advertising Services rendered, by it under this Agreement will not violate or infringe on any patent, copyright, trademark, trade secret, contract, privacy, publicity, or other right of any third party, and will not contain defamatory matter. Affiliate further represents and warrants that all materials prepared or provided by it under this Agreement will be suitable for the use proposed by it without violating any statute, ordinance, or governmental regulation.
In case of breach of any of the foregoing warranties, Affiliate shall promptly take all actions necessary to fully cure the breach and indemnify and compensate TMI for any and all claims and resulting damage, at Affiliate's sole expense, including any reasonable attorney's fees and costs incurred by TMI related thereto.
SECTION 4: Website Use; Waivers; Disclaimers
Availability of Websites. Affiliate recognizes that the traffic of data through the Internet may cause delays while accessing any TMI website including without limitation, tmiwireless.com, tmicell.com, Personal Website, or Premium Website ("TMI Websites"). Affiliate shall not hold TMI liable for any inability to access or delays in the access of such websites, from whatever cause, whether or not in the ordinary course of Internet use. This paragraph shall in no way affect the limitation of liability as described in paragraph 4.4.
Scheduled Maintenance. TMI shall notify Affiliate by posting or e-mail of scheduled upgrades or maintenance work on TMI websites or the Affiliate Control Panel, and if available, an estimate of the length of time the site(s) will be unavailable.
Website Deactivation. TMI reserves the right to remove any statement, graphic image or other item, the presence of which violates the terms and condition of this Agreement, including without limitation paragraph 4.1.5, now in existence or as modified from time to time, particularly with respect to a Personal Website or Premium Website. TMI reserves the right, in the alternative, to immediately deactivate, or require the deactivation of, and terminate the use of any TMI Website by the Affiliate without prior notice, in the event the Affiliate violates any of the terms and condition of this Agreement, now in existence or as modified from time to time.
Obligation to Monitor. Affiliate shall be obligated to continuously check tmiWireless.com and the Affiliate Control Panel for any changes in Affiliate Program rules or regulations.
Restrictions of Use. Affiliate warrants that it will not post, directly or indirectly on or by links to any other websites, any of the following material or information to the TMI Websites: (i) intellectual property copyrighted or trademarked by others; (ii) abusive, defamatory or inflammatory statements; (iii) statements which contain vulgar, obscene or indecent statements or graphical images; (iv) statements that threaten the person of others; (v) statements that are bigoted, hateful, racially offensive or endorse or advocate illegal or immoral activity; and (vi) statements of or about political issues or political campaign materials.
Not for Resale. Affiliate warrants that it will not resell any part of the TMI Affiliate Program opportunity including, but not limited to any TMI website or website service such as the TMI Private Label website program. If selling value-added services, affiliate agrees to transparently disclose all details of any component of its service that is provided by TMI so as not to obscure which entity is providing which services. For example, an affiliate that sells services that are built around a TMI Private Label Website, it must disclose that the TMI Private Label website is a free service offered by TMI Wireless to its approved affiliate members.
Affiliate Public Website Monitoring. TMI WILL NOT ACT AS A "CENSOR" OR "MONITOR" THE AFFILIATE PUBLIC WEBSITE. TMI DISCLAIMS ALL RESPONSIBILITY FOR ANY MATERIAL DISCUSSED OR POSTED ON THE AFFILIATE PUBLIC WEBSITE BY THE AFFILIATE, OR USERS OF THE AFFILIATE PUBLIC WEBSITE.
Affiliate Control Panel Privacy. TMI shall not disclose to third parties any personal information that the Affiliate submits to TMI through the Affiliate Profile. Such data shall be used for the sole purposes of TMI for the administration of the account of, notices to, periodic contact with the Affiliate or any other purpose TMI deems necessary. Due to the nature of a 2-tier affiliate program, Affiliate's name and email address will be visible on the "Sub-affiliate Report" of the Affiliate's "upline" or "parent affiliate" by default. Affiliate understands that this is solely for the purpose of encouraging affiliates to communicate and share ideas and strategies. Upon request, TMI will suppress this information.
Unauthorized Access to Affiliate Control Panel. Affiliate must protect the Affiliate's password. The Affiliate is solely responsible for use of the Affiliate Control Panel by any third party using the access information provided by the Affiliate. In the event that Affiliate determines that another party has improperly or wrongfully gained or should no longer maintain access to Affiliate's login and/or password, then upon written notice to TMI, Affiliate must request TMI to delete the old information and issue a new login and/or password to Affiliate.
Limitation of Liability: THE WEBSITE SERVICES PROVIDED BY TMI, INCLUDING ACCESS TO TMIWIRELESS.COM, AFFILIATE'S PERSONAL WEBSITE, OR THE OPTIONAL PREMIUM WEBSITE, ARE PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND TO AFFILIATE OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, EXPRESS OR IMPLIED WARRANTIES OF: (i) MERCHANTABILITY; (ii) FITNESS FOR A PARTICULAR PURPOSE; (iii) EFFORT TO ACHIEVE PURPOSE; (iv) QUALITY; (v) ACCURACY; (vi) NON-INFRINGEMENT; (vii) QUIET ENJOYMENT; AND (viii) TITLE. AFFILIATE AGREES THAT ANY EFFORTS BY TMI TO MODIFY ITS PRODUCTS OR SERVICES SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS, AND THAT ANY TMI WARRANTIES SHALL NOT BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. AFFILIATE FURTHER AGREES THAT TMI SHALL NOT BE LIABLE TO THE AFFILIATE OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES FOR ANY USE OF THE TMI WEBSITES OR ANY OTHER HYPER-LINKED WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, WHETHER UNDER THE TERMS AND CONDITIONS OF THIS AGREEMENT OR OTHERWISE, EVEN IN THE EVENT TMI WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WAS GROSSLY NEGLIGENT. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND, AS SUCH, SOME PORTION OF THE ABOVE LIMITATION MAY NOT APPLY TO AFFILIATE. IN SUCH JURISDICTIONS, TMI'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
SECTION 5: Business Practices
Ethical Conduct. It is the full responsibility of Affiliate to market the Products and Services in a legal, ethical and honest fashion, and Affiliate agrees to defend and hold TMI harmless from any and all claims, liabilities, causes of action, damages, and costs (including reasonable attorney's fees) asserted against TMI arising from or related to the actions or omissions of Affiliate. Affiliate shall at all times comply with all local and Federal spam, fax broadcast and telemarketing laws. Any Affiliate advertisement that does not comply with applicable local, state or federal laws is strictly forbidden and shall be expressly defined as "unauthorized use" of the respective Provider's trademarks, marks and names. Should action be brought against TMI for such activity by Affiliate, Affiliate agrees to bear all costs and penalties associated with such activity including, but not limited to TMI's legal costs for any alleged infraction of these laws.
Slamming and Spamming. The Affiliate shall not engage in or facilitate any form of illegal slamming or spamming in any way with any customers or potential customer of a Provider. In general, "Slamming" occurs when one party surreptitiously and fraudulently switches or causes the transfer of another party's long distance or local telephone service from one carrier to another without customer-user's knowledge or consent. The Affiliate shall not submit any order to switch long distance or local telephone service unless the transfer has been fully and knowingly authorized and verified by the customer-user in accordance with TMI and Provider's operating principles, procedure, and guidelines. Instances of forgeries or willful violations of applicable laws, rules and regulations shall result in the immediate termination and a permanent ban of Affiliate from any representation of TMI. "Spamming" occurs when a party uses any unauthorized or unsolicited communication or transmission of information or material by phone, facsimile, e-mail or other telecommunication equipment to another individual or entity not having a prior business or personal relationship with that sender. Specifically, unsolicited advertisements sent by telephone or facsimile are restricted by federal law. Legal action may be filed to recover actual monetary loss from such violation, with damages for each such violation, whichever is greater. This Section shall survive the termination of this Agreement.
Slamming or Spamming NO Tolerance Policy. It is acknowledged by the Affiliate that TMI prohibits and shall not tolerate any occurrence of Slamming or Spamming. Upon each and every occasion that the Affiliate endorses or negotiates the monthly compensation checks issued and delivered to the Affiliate by TMI, each Affiliate reaffirms that the Affiliate shall not engage in or facilitate any form of Slamming or Spamming in any way with any customers or potential customer of TMI or any of TMI Providers. TMI will take all action necessary to protect TMI customers against Slamming or Spamming, including, but without limitation, termination of the Affiliate. TMI prohibits the Affiliate from using any of TMI's Proprietary Information, Proprietary Materials and Licensed Materials on or through any automatic calling devises, "broiler room" operations or any other form or unsolicited advertising to generate prospective customers or for sponsoring new Affiliates.
No Telemarketing. The Affiliate shall not engage in or facilitate any form of outbound telemarketing sales of the Products or Services. Due to heavy carrier restrictions on telemarketing, Affiliate may not promote TMI's Affiliate Program, Products, Services or any of TMI's websites through any form of outbound telemarketing.
Violation of Laws and Regulations. Affiliate acknowledges that certain local, state and federal laws and regulations apply to Affiliate as an independent contractor and as an individual. Affiliate agrees to comply with all applicable local, state and federal laws. Further, Affiliate agrees to defend, indemnify, and hold harmless TMI, including TMI's affiliates, subsidiaries, agents, directors, officers and employees, against all claims, damages, losses, causes of action, liabilities and expenses of any kind or nature, including but not limited to reasonable attorney fees, which arise out of or relate to the failure of Affiliate to comply with such applicable local, state and federal laws and regulations in the performance of Affiliate's obligations under this Agreement. This Section shall survive termination under this Agreement.
FTC Rule. Federal Trade Commission ("FTC") Three-Day "Cooling Off" Rule requires specific statutory language and notice of the right of cancellation on the retail sales receipt. All retail sales must comply with the FTC Rule. Nothing in this paragraph shall be construed as to modify any provision of paragraph 2.4 hereof.
Misrepresentations. Affiliate is an independent entity and agrees not to falsely represent himself/itself as an employee, owner, or partner of TMI. Further, affiliate agrees not to register or submit links to any website using an email address containing "tmiwireless.com", "tmicell.com", or any misspelling of TMI web properties. This practice misleads the website operator into believing that TMI has registered with the website service.
Fraudulent Sales. Forged sales and applications or sales by any means other than legitimate customers will result in criminal prosecution and forfeit of all commissions owed.
Non-Circumvention. During the term of this Agreement, and for twelve (12) months after the expiration or termination of this Agreement for any reason, Affiliate shall not, except as an independent contractor for TMI, directly or indirectly, offer or provide, or assist others in offering or providing, to any Provider any Advertising Services. The term "Provider" for purposes of this paragraph shall mean those persons or entities that were Providers of TMI during the Term of this Agreement.
Acceptable Methods of Promoting Links. Affiliate may promote its ID-Encoded Links via the banners, text links, buttons, and other graphics provided by TMI. Affiliate may promote its ID-Encoded Links to opt-in email lists owned by Affiliate, but may not promote to email lists rented by Affiliate. Affiliate may not promote to "harvested" emails.
Affiliate Printed Material and Advertising. All electronic or printed advertisements of the Products or Services, or Affiliate's links or websites that relate to the Affiliate Program, must be submitted by Affiliate to TMI for review and approval by written consent of an officer of TMI prior to distribution. Affiliate business cards, stationary and any printed material proposing to use any Proprietary Marks, must be submitted by the Affiliate to TMI for review and approval by written consent of an officer of TMI prior to printing and distribution. All material shall include a disclaimer stating that Affiliate is an independent contractor and not an agent of TMI.
Affiliate Business Phones. The Affiliate's business-telephone(s) may not use, be listed under or make reference to TMI's name.
Press Inquiries. Any inquiries by the news media about TMI or Provider(s) must be referred immediately to TMI to ensure presentation of factual information, plus an accurate and consistent public image. Affiliate shall not make representations to the press regarding TMI or Provider(s) without prior written consent from TMI or Provider(s), respectively.
Disclaimers. Affiliate shall place on all its websites and printed material a disclaimer stating that Affiliate is an independent contractor and not an agent of TMI.
SECTION 6: Marketing Materials
Representations Regarding TMI or Products. Affiliate agrees not to make any oral or written statements regarding TMI, its products, its services, the products and services of its Providers and TMI marketing program that are not expressly contained in the materials supplied by TMI directly to the Affiliate. The Affiliate agrees to indemnify and hold harmless TMI from any and all liability including judgments, civil penalties, refund, attorney fees, court cost or lost business incurred by TMI as a result of Affiliate's unauthorized representations. This Section shall survive termination under this Agreement.
Reporting. TMI will provide, as and when available, computer reports to the Affiliates on the Affiliate Control Panel. The reports may include information regarding Affiliate's sales organization, product purchases and product mix. The Affiliate acknowledges that such reports are TMI's Proprietary Information. The use of such reports is provided by TMI for use the Affiliate, solely, during the term of this Agreement and not afterwards. The Affiliate shall not, directly or indirectly, disclose the Proprietary Information to any third party. The Affiliate and TMI agree that, but for this agreement of confidentiality and nondisclosure, TMI would not provide the Proprietary Information to the Affiliate. This Section shall survive termination under this Agreement.
Proprietary Marks. The Proprietary Marks of TMI and Providers have significant value and the Affiliate may use the Proprietary Marks only as authorized and pursuant to this Agreement. The Affiliate shall use the Proprietary Marks only in the form and format provided by TMI, and must conform to the guidelines set forth in the Affiliate Marketing Guide, as well as any Provider policies. The Affiliate shall obtain prior written permission from an officer of TMI for any other use of the Proprietary Marks. Such prohibited use includes, but not limited, to advertising or promotional materials individually procured by the Affiliate for marketing of the products and services of TMI or its Providers. The Affiliate shall not use any written, printed, recorded material, or any other material in advertising, promoting or describing the products and services of TMI's marketing and sponsoring program, unless such materials have been submitted to TMI for approval and such approval is granted, in writing, by an officer of TMI prior to dissemination, publication, displayed or use by the Affiliate.
Licensed Materials. The Licensed Materials of TMI and Providers have significant value and the Affiliate shall not advertise the Licensed Materials of TMI and Providers, except when and as authorized by prior written consent by an officer of TMI. Any display, institutional, trademark, television, radio, Internet, direct mail or newspaper advertising copy, other than that originated, produced and disseminated by TMI, must be submitted by the Affiliate to TMI for analysis, review and approved by written consent of an officer of TMI prior to dissemination, use or publication, privately or publicly.
SECTION 7: Sub-Affiliates
Sub-Affiliate. Each prospective affiliate that applies to become an affiliate through a link encoded to Affiliate, and who is accepted by TMI at TMI's sole discretion is a Sub-Affiliate. Affiliate will be compensated for Qualifying Sales of the Sub-Affiliate according to the Compensation Plan posted on tmiwireless.com. Affiliate must provide the prospective Affiliate with information to identify how and where the prospect would login to review the opportunity and make application with TMI for the marketing of the products and services offered by TMI. To assure that Affiliate is credited with a Sub-Affiliate, the Affiliate shall have the prospective Sub-Affiliate sign up through the Affiliate's Public Website using the Affiliate Recruiting Links and Banners provided on the Affiliate Control Panel. Failure to instruct the prospect on the sign-up procedure may invalidate the credit of the Sub-Affiliate to the Affiliate.
Income Claims. Affiliates shall not represent hypothetical income figures as actual income projections, based upon the alleged inherent power of network marketing. TMI holds the position that such statements are false and misleading. Such representations about hypothetical income projections are considered misrepresentations and thereby are prohibited in any sponsorship or recruiting presentation.
Recruiting Affiliate Conflicts. In the event two Recruiting Affiliates claim to be the recruiter of the same new Sub-Affiliate, the Sub-Affiliate may elect to select which Affiliate shall be the Recruiting Affiliate. Unless otherwise designated by the Sub-Affiliate, TMI shall regard the first application received by the corporate office as being the binding choice of the Sub-Affiliate. It is the responsibility of the Recruiting Affiliate to ensure that the prospective Affiliate has made contact and application to TMI through the Affiliate's Public Website, Personal Website, or Premium Website.
Signing Up as Your Own Sub-Affiliate. Affiliates may not sign up as a sub-affiliate under their own affiliate account. Sub-affiliate commissions will not be paid to affiliates that create one or more sub-affiliate accounts with the intention of earning both commission tier payouts. To be fair to all affiliates that put effort into recruiting sub-affiliates, you may not sign up as your own sub-affiliate. TMI may withhold any commission earnings that, at its own discretion, are deemed to be earned in violation of this section 7.4.
SECTION 8: Term; Termination
The term of this Agreement ("Term") shall commence on the date TMI accepts your Affiliate Application and shall continue until this Agreement is terminated pursuant to the provisions contained herein. Certain identified Sections herein shall survive termination under this Agreement.
The Affiliate may terminate the relationship with TMI at any time and for any reason, simply by written or e-mail notification delivered to TMI. In the event the Affiliate elects to terminate this Agreement and the relationship with TMI, all rights to receipt of compensation, including but not limited to all commissions, override commission, bonuses, stipends or discounts on products and services theretofore purchased by the Affiliate, shall terminate immediately.
TMI reserves the right to terminate the relationship with the Affiliate at any time in the event that in TMI's sole opinion that TMI determines that the Affiliate has violated: (i) any of the terms and conditions of this Agreement, as it presently exists or as it may be amended or modified from time to time; (ii) any provision of applicable laws, rules or regulations; (iii) any standards of fair and honest dealing, including but not limited to the Affiliate dealing in any secret arrangement, deceitful tactic, collusion or apparent conspiracy with any third-party to circumvent any existing prohibitive provision or non-compete agreement by and between that third-party and a respective contracting-party to which the third-party has an apparent binding obligation; (iv) any TMI policy or procedure; or (v) the Affiliate's neglect or failure to maintain and provide TMI with a current email address, mailing address, phone number(s) or other pertinent data deemed necessary at the sole discretion of TMI. The act of termination of an Affiliate carries with it the corresponding termination of any and all current or future compensation that may be attributed to products and services marketed on behalf of TMI by the subject Affiliate or the Sub-Affiliates thereof, while acting in the Affiliate capacity.
In the event of such termination of the Affiliate, the sole obligation of TMI shall be to notify the Affiliate at the last known e-mail address provided by the Affiliate to TMI. The termination shall be effective immediately, unless otherwise stated in the notice.
TMI's decision shall be final and subject to no further review.
SECTION 9: Miscellaneous
Waiver. No course of dealing between TMI and the Affiliate shall modify, amend, waive or terminate any of the terms and conditions herein or any obligations of the Affiliate under or by reason of this Agreement, without prior written consent of an officer of TMI.
Dispute Resolution. This Agreement is governed under the laws of the Commonwealth of Virginia. Affiliate agrees that during and after the term or any extension of the term of this Agreement, any dispute, controversy or claim arising out of or relating to this Agreement, or the breach thereof between TMI and Affiliate ("Arbitral Claims") shall be settled by arbitration or mediation in Fairfax County, Virginia, at TMI's sole option. This clause shall not be construed to limit TMI from bringing any action for injunctive or other provisional relief as TMI deems necessary or appropriate to compel Affiliate to comply with its obligations hereunder or to protect TMI's intellectual property rights in any court of competent jurisdiction in the Commonwealth of Virginia. ?Should TMI prefer formal legal process rather than arbitration or mediation, Affiliate agrees that the legal venue shall be the Fairfax County General District Court for disputes up to the court's subject matter jurisdictional amount in controversy, and for disputes greater than the Fairfax County, Virginia, General District Court's jurisdictional limit, the sole venue shall be the Fairfax County, Virginia, Circuit Court.
Severability. If all or part of any term or condition of this Agreement, or the application of any term or condition of this Agreement, is determined by any court of competent jurisdiction to be invalid or unenforceable to any extent, the remainder of the terms and conditions of this Agreement (other than those portions determined to be invalid or unenforceable) shall not be affected, and the remaining terms and conditions (or portions of terms or conditions) shall be valid and enforceable to the fullest extent permitted by law. If a judicial determination prevents the accomplishment of the purpose of this Agreement, the invalid term or condition (or portions of terms or conditions) shall be restated to conform with applicable law and to reflect as nearly as possible the original intention of the parties.
Waiver or Forbearance. Any delay or failure of either party to insist upon strict performance of any obligation under this Agreement or to exercise any right or remedy provided under this Agreement shall not be a waiver of that party's right to demand strict compliance, irrespective of the number or duration of any delay(s) or failure(s). No term or condition imposed on either party under this Agreement shall be waived and no breach by either party shall be excused unless that waiver or excuse of a breach has been put in writing and signed by both parties. No waiver in any instance of any right or remedy shall constitute waiver of any other right or remedy under this Agreement. No consent to or forbearance of any breach or substandard performance of any obligation under this Agreement shall constitute consent to modification or reduction of the other obligations or forbearance of any other breach.
Headings. The headings used in this Agreement are merely for reference. The headings have no independent legal meaning and impose no obligations or conditions on the parties.
Choice of Law. This Agreement shall be interpreted and governed by the laws of the Commonwealth of Virginia.
Indemnification. Affiliate agrees to defend and indemnify TMI, the Providers for which Affiliate is engaged to perform Advertising Services, and their respective stockholders, directors, officers, agents, and employees, against all claims, actions, demands, judgments, settlements, damages, liabilities, losses, and costs of any kind, including but not limited to reasonable fees of attorneys and experts, arising from or related to any of the following actions or omissions by the Affiliate or its officers, employees, contractors, or agents: (1) a negligent or wrongful act or omission; (2) a violation or infringement of any patent, trademark, copyright, trade secret, contract, or other right of any third party; (3) an unauthorized use or disclosure of Confidential Information; or (4) other breach of any of Affiliate's representations, warranties, or covenants under this Agreement; provided that TMI shall (i) promptly notify Affiliate of each such claim when and as it comes to the attention of TMI; (ii) cooperate with Affiliate in the defense and resolution of such claim; and (iii) not settle or otherwise dispose of such claim without Affiliate's prior written consent, such consent not to be unreasonably withheld.
Exclusive Liability. Affiliate's sole and exclusive remedy for a breach of this Agreement, or any other claim arising from this Agreement, shall be the compensation specified for Advertising Services satisfactorily performed and approved and paid by the Providers, and reimbursement for pre-approved expenses actually incurred. Affiliate shall not have a right to recover indirect, consequential, incidental, special or exemplary damages from TMI or its Providers for claims related to this Agreement.
Modifications of Agreement. TMI reserves the right to amend and modify the terms and conditions of this Agreement, from time to time without prior notice. Any such amendments or modifications shall become effective immediately upon TMI's posting of a notice or a new version of the Agreement on tmiWireless.com or on the Affiliate Control Panel unless another effective date is specified. Modifications may include changes in commission rates and payout structure, payment procedures, and affiliate program rules. Affiliate reaffirms the Acceptance of this Agreement with TMI, as modified, by Affiliate's continued participation in the affiliate program. Such continued participation shall include, but not be limited to, continued use of ID-Encoded Links, use of Affiliate Control Panel, use of Personal or Premium Website, and when accepting, endorsing or negotiating the monthly compensation payments issued and delivered by TMI to the Affiliate.
Entire Agreement. This Affiliate Terms and Conditions Agreement, as stated herein and as amended or modified from time to time hereinafter, supersede any and all other agreements, either oral or in writing, between TMI and the Affiliate with respect to the matters stated herein. This Agreement, including any and all other documents incorporated herein by reference, contains all of the covenants and agreements between the parties with respect thereto. The terms and conditions of this Agreement may be amended or modified by TMI at any time. Any such amendments or modifications shall become effective immediately upon TMI's posting on the Affiliates' Website unless another effective date is specified. Each and every Affiliate reaffirms the Acceptance of this Agreement with TMI upon each and every occasion that the Affiliate exercises use of the Personal Website and, specifically, when the Affiliate endorses or negotiates the monthly compensation checks issued and delivered by TMI to the Affiliate.
I HAVE READ AND UNDERSTAND THE TERMS CONDITIONS AND NOTICES OF THIS AGREEMENT. IN THE EVENT I DO NOT CHECK THE BOX INDICATING MY AGREEMENT TO THE TERMS AND CONDITIIONS, MY APPLICATION SHALL BE NULL, VOID AND OF NO EFFECT AND I WILL HAVE NO RIGHTS UNDER THE TERMS CONDITIONS AND NOTICES OF THIS AGREEMENT. I ACKNOWLEDGE THAT I KNOWINGLY ACCEPT AND AGREE TO BECOME LEGALLY BOUND BY THE TERMS AND CONDITIONS STATED HEREINABOVE. FURTHER, I ACKNOWLEDGE MY ACCEPTANCE BY PHYSICALLY CHECKING THE BOX INDICATING MY AGREEMENT TO THE TERMS AND CONDITIIONS, WHICH ALSO REPRESENTS MY "ELECTRONIC SIGNATURE" AFFIRMING MY ACCEPTANCE. ACTIVATION OF THIS CHECKBOX ALLOWS ME TO HAVE ACCESS TO THE INFORMATION ENTRY PAGE TO PROCEED WITH ENTRY OF THE REQUISITE DATA TO BECOME AN AFFILIATE FOR TMI, SHOULD TMI ACCEPT MY APPLICATION.