Touchfon Affiliate Agreement
The following are the terms and conditions of participating in the Touchfon Reseller Program. "Affiliate" or “you” refers to yourself, and "Touchfon" refers to Touchfon International, Inc., dba Touchfon, located at 9052 Village Way, Victor ID 83455
1. Definitions
"Affiliate Link" means a unique URL designated by Touchfon which allows Touchfon to identify visitors from your web site as originating from you.
"Product" refers to the Touchfon product, which is more fully described at http://Touchfon.com.
"Buyer" means an individual or entity who purchases the Product.
2. Payments and Commissions
Touchfon will pay Affiliate a commission of 5% of the total amount received by Touchfon, less Expenses, for each sale of the Product which is identified by a visitor from Affiliate's web site using their unique Affiliate Link.
"Expenses" means taxes paid by customers, withholding taxes, discounts, bad debts and other write-offs, a reserve for returns, and currency exchange fees, if any.
Each Affiliate may sign up sub-Affiliates and receive a commission for each of such sub-Affiliate's sales. This commission will be 10% to Affiliate for of each such sub-Affiliate's sales.
Any revenue generated by custom work or paid support services performed by Touchfon beyond the normal monthly fees for customers of Affiliate's sales will be non-commissionable. All such revenues will be retained by Touchfon.
Affiliate Commissions shall be paid by Paypal to an email specified by Affiliate for this purpose, or by company check, mailed to the address indicated on the Affiliate sign up form, or as otherwise directed in writing. All Commissions earned during a monthly period will be paid out on the last day of the subsequent month. Touchfon reserves the right to delay issuance of Commission payments until the balance owed Affiliate reaches $100.00. Although the Affiliate Program is not limited to the United States, all payments will be made in U.S. dollars.
If a qualifying sale is canceled or refunded, the related Commission will be deducted from the next monthly payment. Affiliate will not be paid for its own orders of the Product.
All Affiliate applications are subject to approval by Touchfon.
3. Affiliate Link
You will be issued an "Affiliate Link", or unique URL, which allows Touchfon to identify visitors from your site as originating from you. These visitors are tracked with this unique URL and sales are recorded with your Affiliate Id. To receive commissions, you must use the provided Affiliate Link. The URL may be in various forms such as a banner, image, or text link.
Affiliate is solely responsible for insuring that its Affiliate Link is set up properly to qualify for commissions.
Touchfon reserves all rights in and to the Touchfon trademark (the "Trademark"). Touchfon grants to Affiliate a nonexclusive right to display the Trademark on Affiliate’s web site in connection with the Affiliate Link.
Before using the Trademark, Affiliate must have any materials on which the Trademark appears approved by Touchfon. Affiliate may not change the proportion, color or font of the Trademark, or otherwise alter the Trademark. Affiliate may not display the Trademark in any manner that implies sponsorship or endorsement by Touchfon, except of Affiliate’s involvement in the Affiliate Program described in this Agreement. The Trademark must appear by itself, with reasonable spacing (at least the height of the Trademark) between each side of the Trademark and other graphic or textual elements.
The Trademark may not be used to register internet domain names for any purpose. Affiliate may not use the Trademark to disparage Touchfon, its products or services, or in a manner which, in Touchfon’s reasonable judgment, may diminish or otherwise damage Touchfon’s goodwill in the Trademark. Affiliate acknowledges that all goodwill generated through Affiliate’s use of the Trademark will inure to the benefit of Touchfon and hereby assigns and shall assign to Touchfon any and all goodwill generated through Affiliate’s use of the Trademark, without any payment or other consideration of any kind to Affiliate, and Affiliate further agrees to take all actions necessary to effect such assignment. Upon termination of this Agreement, Affiliate shall cease to use the Trademark.
Affiliate may bid on keywords using their affiliate link EXCEPT affiliate may not bid on the company name, product names, website names, synonyms, or trademarks (registered or not) owned or operated by Touchfon or our joint ventures or partners. Doing so gives Touchfon the right to unilaterally end payments to that affiliate for previous, current or future purchases tracked to that affiliate or their subaffiliates.
4. Confidential Information
"Confidential Information" shall include any information, whether oral, written or observed, regarding the terms of this Agreement or sales of the Product. All Confidential Information shall remain the exclusive property of Touchfon and shall be immediately returned to Touchfon upon request, together with all copies thereof. Affiliate shall hold Confidential Information in trust and confidence for Touchfon and shall not disclose such Confidential Information or use it for any purpose other than to perform as required by this Agreement. Affiliate may not disclose Confidential Information to employees or third parties unless it is necessary for such employees or third parties to know such Confidential Information in order for Affiliate to perform its obligations and duties pursuant to this Agreement.
5. Sending Unsolicited Email or Spam
Affiliate agrees to not send unsolicited mail or SPAM mail to promote any of Touchfon’s products or services. This action WILL RESULT in immediate termination of your account with a cancellation of any pending Commissions. Affiliate will also be in violation of the Touchfon Reseller Agreement and subject to legal action.
6. Prohibited Sites
Web sites that promote sexually explicit material or violence are not eligible to be Affiliates. Sites that promote discrimination based on race, sex, religion, national origin, or physical disability shall not be accepted. Web sites that promote illegal activities shall not be accepted. Do not apply if your web site promotes these kinds of activities. By applying, you are stating that your web site does not directly promote or endorse such activities.
7. Term of Agreement
This agreement remains in affect until terminated by either party.
Within twenty-four (24) hours after termination (whether by Affiliate or Touchfon), Affiliate must remove all references to the Affiliate Link from Affiliate’s web site.
Commissions by Affiliate earned through the date of termination of this agreement will remain payable only if the qualifying sales are not canceled or refunded by the Buyers referred by Affiliate. Payment of the final Commission payment to Affiliate will be paid after the end of the current calendar quarter. The provisions of section 1, the last paragraph of section 3, and sections 4, 5, 7, 8, 11 and 12 shall survive termination of this Agreement.
8. Disclaimer
Touchfon will make every reasonable effort to track and pay Commissions for all sales that apply to Affiliate. However, Touchfon is not responsible for technical problems, acts by third parties, or other events outside our reasonable control which may temporarily disrupt or diminish this service.
Touchfon expressly disclaims any and all warranties, express, implied or statutory, and any and all warranties of merchantability, noninfringement or fitness for a particular purpose with respect to the Product. The warranties, if any, with respect to the Product will run directly from Company to Buyers.
9. Privacy
To protect Touchfon customer privacy, we cannot provide identifying Buyer names and contact information to you. However, we will provide an online report detailing price, service, date of sale, and certain other data for your records.
10. Independent Businesses
The relationship between Touchfon and Affiliate established by this Agreement is that of independent businesses in a contract, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales representative or employment relationship between Affiliate and Touchfon. Touchfon and Affiliate shall each conduct its respective business at its own initiative, responsibility and expense, and shall have no authority to incur any obligations on behalf of the other, except as otherwise provided herein.
The term "Affiliate" shall not be interpreted as a legal partner or affiliate, simply as an independent business doing marketing for Touchfon under this agreement. Affiliates are NOT employees of Touchfon, and are responsible for their own local, state, or country taxes. Affiliate understands that Affiliate does not have authority to make or accept any offers or make any representations on behalf of Touchfon. Affiliate shall not misrepresent Touchfon products or services.
11. Limitation of Liability
Touchfon shall not be held liable for any indirect, incidental, special or consequential damages or any loss of revenue or profits arising under or with respect to this agreement or program, even if Touchfon has been advised of the possibility of such damages. Touchfon aggregate liability arising under or with respect to this agreement or the program shall in no event exceed the total Commissions paid or payable by Touchfon to Affiliate under this agreement. In no event shall Touchfon be liable to any party for costs of procurement of substitute goods, lost profits or any other special, consequential, incidental, or indirect damages, losses, costs or expenses of any kind, however caused, and whether based in contract, tort (including negligence), or any other theory of liability regardless of whether Touchfon has been advised of the possibility of such damages, losses, costs or expenses.
Affiliate understands that Affiliate tracking can never be 100% accurate and Touchfon is not responsible for inaccuracies that might occur. Tracking of Affiliate sales depend on several factors which are out of the control of Touchfon. It is the goal of Touchfon to make Affiliate tracking as accurate as possible; however, Touchfon cannot guarantee 100% tracking for situations beyond its control.
12. Miscellaneous
This agreement shall be governed by the laws of the State of California and the United States, without regard to conflict of law principles. All disputes arising out of or related to this Agreement shall be subject to the exclusive jurisdiction and venue of the California state courts of Alameda County (or, if there is federal jurisdiction, a United States Northern District Court of California), and the parties consent to the personal and exclusive jurisdiction of these courts.
This is the entire Agreement between Affiliate and Touchfon with respect to the subject matter hereof. Affiliate may not assign this Agreement, by operation or law or otherwise, without Touchfon’s prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns. Touchfon’s failure to enforce Affiliate’s strict performance of any provision of this Agreement will not constitute a waiver of Touchfon’s right to subsequently enforce that provision, or any other provisions of this Agreement. No waiver of any provision hereof will be effective unless in writing and signed by the party against whom such waiver is sought to be enforced.
