| Agreement
Before joining the Referral or Affiliate Program, you must
first read the Referral and Affiliate Agreement below.
This Agreement is used for both Affiliates and
Referrers. Affiliates are parties who link to
Protica web site pages from their own web site. Referrers
are parties who send emails to friends and associates via
the Referral Page of the Protica web site. Completing an
approved Referral / Affiliate Application via the Join
page automatically entitles you to participate as an Affiliate
and a Referrer. For purposes of this Agreement, Referrers
and Affiliates are referred to collectively as "Affiliates".
Clicking the "Join Referral
/ Affiliate Program" button at the bottom of the Join
page acknowledges that you read, understand and agree to
all of the terms of the Referral and Affiliate Agreement.
Referrer
and Affiliate Agreement
THIS IS A LEGAL AGREEMENT WITH PROTICA,
INC. ("PROTICA"). BY CLICKING ON THE "JOIN
REFERRAL / AFFILIATE PROGRAM" BUTTON AT THE BOTTOM
OF THE JOIN PAGE (LOCATED AT HTTPS://WWW.PROTICA.COM/AFFILIATE/JOIN.ASP),
YOU AGREE THAT (a) YOU HAVE READ THIS AGREEMENT AND UNDERSTAND
ALL OF ITS CONTENTS AND (b) YOU WILL BE BOUND BY ALL OF
THE TERMS AND CONDITIONS IN THIS AGREEMENT.
1. Enrollment in the Protica Affiliate
Program
To begin the enrollment process, please submit a complete
Affiliate Application via our Web site. We will evaluate
your application in good faith and will notify you of your
acceptance or rejection. We may reject your application
if we determine, in our sole discretion, that your web site
is unsuitable for the Protica Affiliate for any reason.
Some of the reasons for rejection can include but are not
limited to images or content that is in any way unlawful,
harmful, threatening, defamatory, obscene, harassing, or
racially, ethically or otherwise objectionable.
2. Promotion of Affiliates
As an Affiliate Site, we will make available to you
banner advertisements, button links, and/or text links to
our site. These links shall contain Protica logos and words
identifying Protica (each of these links sometimes being
referred to herein as "Links" or, individually,
as a "Link"). Subject to the terms and conditions
herein, you may display these links as often and in as many
areas on your site as you desire. The Links will serve to
identify your site as a member of our Affiliate and will
establish a link from your site to ours.
3. Utilizing Protica Links on
Your Site
In utilizing Links, you agree to cooperate fully with
us in order to establish and maintain such Links. All Affiliates
shall display graphic images Links prominently throughout
their site as you see fit. You shall not alter, modify or
expand the Links in any way; however, a Link may be modified
and/or expanded with our prior written consent which will
not be unreasonably withheld. Each Link connecting users
of your site to Protica will in no way alter the look, feel,
or functionality of Protica. We have the right, in our sole
discretion, to monitor your site at any time and from time
to time to determine if you are in compliance with the terms
of this Agreement.
4. Order Processing
Protica will be responsible for providing all information
necessary to allow you to make appropriate Links from your
site to our site. We will process orders placed by customers
who follow the Links from your site to Protica. We reserve
the right to reject orders that do not comply with certain
requirements, which we periodically may establish. We will
be solely responsible for all aspects of order processing
and fulfillment, including order entry, payment processing,
shipping, cancellations, returns and related customer service.
We will track the volume and amount of sales generated by
your site and will make unaudited reports summarizing this
sales activity available to you through our site. The form,
content, and frequency of the reports may vary from time
to time at our discretion. To permit accurate tracking,
reporting, and fee accrual, you must ensure that the Links
between your site and our site are properly formatted.
5. Standard Commission Rates
The standard commission rates are as follow:
Tier 1: $.20 per Lead - A
lead is a unique new visitor who signs-up for a Protica
Account (referred to on the site as "My Account")
AND subscribes to the Protica Newsletter. Lead commissions
are paid only once per friend and are not available for
existing accounts.
Tier 1: 5% of each Completed Sale - A completed sale
is a unique, successfully processed sale at the Protica
web site. The percentage is based on the net total of the
sale, which is the amount of the order after all discounts
and gift certificates and before all taxes and shipping.
Tier 2: $.05 per Lead - A
lead is a unique new visitor who signs-up for a Protica
Account (referred to on the site as "My Account")
AND subscribes to the Protica Newsletter. Lead commissions
are paid only once per friend and are not available for
existing accounts.
Tier 2: 3% of each Completed Sale - A completed sale
is a unique, successfully processed sale at the Protica
web site. The percentage is based on the net total of the
sale, which is the amount of the order after all discounts
and gift certificates and before all taxes and shipping.
'Tier 1' commissions are commissions
generated directly from your promotional efforts (eg. banner
ads you place on your web site). 'Tier 2' commissions are
commissions generated from the promotional efforts of Affiliates
you referred to the Referral and Affiliate Program. An Affiliate
is only a 'Tier 2' affiliate of yours if they sign up as
an Affiliate via your referral link and if they are not
already an Affiliate.
From time to time, Protica may offer
adjusted commission rates to select Affiliates.
For a product sale to generate a
commission the customer must purchase a product or products
using our automated online ordering system within five (5)
years of the date they follow the special link from your
site or your email to the Protica web site ("First
Visit"), and as long as within that time the customer
does not (a) click on the link of another one of our Affiliates,
or (b) turn off or otherwise disabled the "cookie"
set when they clicked on the special link. Additioally,
in order to earn a commission on a future visit from the
customer, the customer must visit the Protica web site using
the same computer used on the First Visit.
You may purchase products during
sessions initiated through the links on your site for your
own use. However, you may not purchase products during sessions
initiated through the links on your site for resale or commercial
use of any kind; such purchases may result (in our sole
discretion) in the withholding of commissions or the termination
of this Agreement.
Commission on returned products will
be deducted from your next monthly payment after a refund
is generated. Protica has no obligation to pay Affiliate
for activities that do not otherwise fit the definition
of a Click-Through, Sale or Lead. If a customer accesses
the web site from more than one Affiliate, the most recent
previous Affiliate referral will receive the commission.
Terms: Protica will pay Affiliate
approximately forty-five days (45) after the end of each
month for all commissions earned during the prior month,
less any taxes we may be required to withhold, and less
any amount Protica determines, in its sole discretion, was
not validly earned from proper use of the Link on Referral's
Web Site. If commissions earned during any month are less
than $50, then Protica may hold those commissions until
the month in which the total amount due is at least $50
or (if earlier) until this Agreement is terminated. Protica
will provide Affiliate with the ability to obtain a password
that will enable the Affiliate to enter a password-protected
site or an area of a site communicated to Affiliate by Protica.
Affiliate may use the password to log in to that site to
access information about the number of times the Link(s)
on Affiliate's Web Site or links from a Referral Email has
generated a user transfer to our site. If Protica records
show activity from your site that we determine is inconsistent
with valid search requests, or is otherwise unusual, then
Protica reserves the right to withhold payment of commissions
for a reasonable time pending an investigation of that activity
and resolution of the dispute (if any). Protica will notify
you promptly in this event. The investigation will be performed
by a party selected by Protica, and the determination of
the investigation shall be final.
All commission payments are made
to Affiliates via PayPal's Mass Pay service. According to
PayPal's policy, which may change from time to time, an
Affiliate who does not have a PayPal account at the time
said Affiliate receives a payment from Protica must open
an account (at no cost to Affiliate) within thirty (30)
days else the commission monies will be removed from the
account. In this event, the monies are forfeited.
Protica shall compensate each Affiliate
for actual sales and leads generated by the links, promotional
materials, and branding that are displayed on Affiliate's
web site(s) or Referral Email(s) in accordance with Protica's
then current commission schedule. Such commissions shall
be payable in U.S. dollars. Protica may offer different
forms of compensation in the future. Only persons who are
not subject to U.S. federal income tax withholding are eligible
to participate in the Affiliate Program.
If you are a U.S. citizen or resident
or other non-foreign person, participation in the Affiliate
Program and payment of commissions is conditioned upon your
satisfactory completion of Internal Revenue Service Form
W-9 and any other tax forms that Protica, in its sole discretion,
determines to be necessary or appropriate.
If you are a nonresident alien of
the United States or other foreign person (such as a foreign
corporation), participation in the Program and payment of
commissions is conditioned upon your satisfactory completion
of a Certification Form, the form of which shall be determined
by Protica, by which you certify that commissions you derive
from participation in the Program are not effectively connected
with the conduct of a trade or business in the United States.
If your commissions become effectively connected with the
conduct of a trade or business in the United States, you
will immediately become ineligible for participation in
the Affiliate Program and must notify Protica of this change
in status within 30 days of the change. If no date of change
is given in the notice, the change will be deemed to have
occurred 30 days prior to receipt by Protica of the notice.
Nonresident aliens participating
in the Affiliate Program who become a U.S. citizen or resident
will immediately become ineligible for participation in
the Affiliate Program and must notify Protica of their change
in status within 30 days of the change. If no date of change
is given in the notice, the change will be deemed to have
occurred 30 days prior to receipt by Protica of the notice.
A former nonresident alien will thereafter become entitled
to re-enter the Affiliate Program upon satisfactory completion
of Internal Revenue Service Form W-9 and any other tax forms
that Protica, in its sole discretion, determines to be necessary
or appropriate.
It is each Affiliate’s (and
not Protica’s) obligation to ensure that the Affiliate
obtains, completes in full and provides Protica with the
necessary and appropriate Internal Revenue Service or other
tax forms so that Protica may pay such Affiliate any commissions
due Affiliate. Protica shall not make any commission payments
to an Affiliate unless and until the Affiliate provides
Protica with the necessary and appropriate Internal Revenue
Service or other tax forms.
Click here for Internal Revenue Service
Form W-9 and here for W-9 instructions. Please print, complete
in full, and send to Protica at the following address the
necessary forms: Protica, Inc. 1002 MacArthur Rd, Whitehall,
PA 18052, Attention: Accounts Payable (Affiliate Program).
PLEASE WRITE THE URL OF YOUR SITE AND YOUR CONTACT EMAIL
ON THE TOP OF THE W-9 OR CERTIFICATION FORM.
Payments to a Affiliate shall be
sent to the address provided on the tax forms submitted
by Affiliate to Protica.
6. Policies and Pricing
Customers who buy Products through Affiliate will be
deemed to be customers of Protica. Accordingly, all of Protica
rules, policies, and operating procedures concerning customer
orders, customer service, and sales will apply to those
customers. We may change our policies, operating procedures,
terms and/or conditions at any time. For example, we will
determine the prices to be charged for Products sold under
Affiliates in accordance with our own pricing policies.
Product prices and availability may vary from time to time.
Because price changes may affect items that you already
have listed on your site, you may not include price information
in your descriptions. We will use commercially reasonable
efforts to present accurate information, but we cannot guarantee
the availability or price of any particular Product. You
will be notified of any prices changes via email at the
registered Affiliate email address you listed when registering.
Protica reserves the right to notify Affiliates of prices
changes at any time should pricing change.
7. Non-Exclusive Limited License
and Use of Protica Logos and Trademarks
We grant you a non-exclusive, non-transferable, revocable
right to access our site through links solely in accordance
with the terms of this Agreement, and solely in connection
with such links, to use our logos, trade names, trademarks
and similar identifying material (collectively "Licensed
Material") solely for the purpose of selling Products
on your site for Protica. You may not alter, modify or change
the Licensed Material in any way. You are only entitled
to use the Licensed Material to the extent you are a member,
in good standing, of the Affiliate Program.
You shall not make any specific use
of any Licensed Material for purposes other than selling
Products for Protica, without first submitting a sample
of such use to us and obtaining our prior written consent.
You agree not to use the Licensed Material in any manner
that is disparaging or that otherwise portrays Protica in
a negative light. We reserve all of our rights in the Licensed
Material, and all other intellectual property rights. We
may revoke the rights granted to you pursuant to this section
at any time by giving you written notice. You shall obtain
no rights in and to the Licensed Material. The rights granted
to you pursuant to this section shall terminate upon the
effective date of the expiration or termination of this
Agreement.
8. Non-exclusive Limited License
and Use of Affiliate Logos and Trademarks
You grant to us a non-exclusive license to utilize your
names, titles, logos, and trademarks (collectively the "Referral
Marks"), and to advertise, market, promote, and publicize
in any manner our rights hereunder; provided, that we shall
not be required to so advertise, market, promote, or publicize.
You hereby represent and warrant that you are the sole and
exclusive owner of the Affiliate Trademarks and have the
right and power to grant to us the license to use same in
the manner contemplated herein, and such grant does not
or will not breach, conflict with, or constitute a default
under any agreement or other instrument applicable to you
or binding upon you; or infringe upon any trademark, trade
name, service mark, copyright, or other proprietary right
of any other person or entity. This license shall terminate
upon the effective date of the expiration or termination
of this Agreement.
9. Obligations Regarding 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. You hereby represent and warrant
to us that materials posted on your site do not violate
or infringe upon the rights of any third party, and that
materials posted on your site are not libelous or otherwise
illegal. We disclaim all liability for all such matters.
Further, you will indemnify and hold us harmless from all
claims, damages, and expenses relating to the development,
operation, maintenance, and contents of your site.
10. Term of the Agreement
The term of this Agreement will begin upon our acceptance
of your Affiliate Application and will end when terminated
by either party. Either party may terminate this Agreement
at any time, with or without cause, by giving the other
party notice of termination. You are only eligible to earn
a commission on sales occurring during the term of the Agreement,
and commissions earned through the date of termination will
remain payable only if the related orders are not canceled
or returned. We reserve the right to withhold your final
payment for a reasonable time to ensure that the correct
amount is paid.
11. Modification
We may modify any of the terms and conditions contained
in this Agreement, at any time and in our sole discretion.
Notice of any change by e-mail, to your address on our records,
or the posting on our site of a change notice or a new agreement,
is considered sufficient notice to you of a modification
to the terms and conditions of this Agreement. Modifications
may include, but are not limited to, changes in the scope
of available commission fees, commission schedules, payment
procedures, and Affiliate rules. If any modification is
unacceptable to you, your recourse is to terminate this
Agreement. Your continued participation in the Affiliate
following our posting of a change notice or a new agreement
on our site will constitute binding acceptance of the change.
12. Relationship of Parties
You and Protica 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.
13. Disclaimers
We make no express or implied warranties or representations
with respect to the Affiliate Program or any product or
other items sold through the Affiliate Program (including,
without limitation, warranties of fitness, merchantability,
non-infringement, or any implied warranties arising out
of a course of performance, dealing, or trade usage). In
addition, we make no representation that the operation of
our site will be uninterrupted or error-free, and we will
not be liable for the consequences of any interruptions
or errors.
14. Representations and Warranties
You hereby represent and warrant to us as follows:
This Agreement has been duly and
validly executed and delivered by you and constitutes your
legal, valid, and binding obligation, enforceable against
you in accordance with its terms.
The execution, delivery, and performance
by you of this Agreement and the consummation by you of
the transactions contemplated hereby will not, with or without
the giving of notice, the lapse of time, or both, conflict
with or violate: any provision of law, rule, or regulation
to which you are subject; any order, judgment, or decree
applicable to you or binding upon your assets or properties;
any provision of your by-laws or certificate of incorporation,
or any agreement or other instrument applicable to you or
binding upon your assets or properties.
No consent, approval, or authorization
of, or exemption by, or filing with, any governmental authority
or any third party is required to be obtained or made by
you in connection with the execution, delivery, and performance
of this Agreement or the taking by you of any other action
discussed herein.
There is no pending or, to the best
of your knowledge, threatened claim, action, or proceeding
against you, or any affiliate of yours, with respect to
the execution, delivery, or consummation of this Agreement,
or with respect to your trademarks, and, to the best of
your knowledge, there is no basis for any such claim, action
or proceeding.
15. Confidentiality
Except as otherwise provided in this Agreement or with
the consent of the other party hereto, each of the parties
hereto agrees that all information including, without limitation,
the terms of this Agreement, business and financial information,
customer and vendor lists, and pricing and sales information,
concerning us or you, respectively, or any of our affiliates
provided by or on behalf of any of them shall remain strictly
confidential and secret and shall not be utilized, directly
or indirectly, by such party for its own business purposes
or for any other purpose except and solely to the extent
that any such information is generally known or available
to the public through a source or sources other than such
party hereto or its affiliates. Notwithstanding the foregoing,
each party is hereby authorized to deliver a copy of any
such information (a) to any person pursuant to a subpoena
issued by any court or administrative agency, (b) to its
accountants, attorneys, or other agents on a confidential
basis, and (c) otherwise as required by applicable law,
rule, regulation, or legal. Notwithstanding the aforementioned,
the following information will not be held confidential
if: it is now public knowledge or subsequently becomes public
through no breach of this Agreement; it is rightfully in
the non-disclosing party's possession prior to receiving
it from the party claiming it as confidential or proprietary;
a third party discloses the information through no breach
of this Agreement; or it is independently developed by or
for a party to this Agreement without reliance upon confidential
information received from the party claiming confidentiality.
16. Limitations 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 Affiliate Program,
even if we have been advised of the possibility of such
damages. Further, our aggregate liability arising with respect
to this Agreement and the Affiliate will not exceed the
total commission fees paid or payable to you under this
Agreement.
17. Indemnification
You hereby agree to indemnify, defend, and hold harmless
Protica, its subsidiaries, parent company, and affiliates,
and their directors, officers, employees, agents, shareholders,
partners, members, and other owners, against any and all
claims, actions, demands, liabilities, losses, damages,
judgments, settlements, costs, and expenses (including reasonable
attorneys' fees) (any or all of the foregoing hereinafter
referred to as "Losses") insofar as such Losses
(or actions in respect thereof) arise out of or are based
on (a) any claim that our use of the Affiliate Trademarks
infringes on any trademark, trade name, service mark, copyright,
license, intellectual property, or another proprietary right
of any third party, (b) any misrepresentation of a representation
or warranty or breach of a covenant and agreement made by
you herein, or (c) any claim related to your site including,
without limitation, content therein not attributable to
us.
18. 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 AFFILIATE
PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE,
OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
19. Governing Law
This Agreement will be governed by the laws of the United
States and the state of Delaware, without reference to rules
governing choice of laws.
20. Arbitration
If a dispute arises under this Agreement, the parties
agree to first try to resolve the dispute with the help
of a mutually agreed upon mediator in the following location:
Philadelphia, PA. The parties shall share any costs and
fees other than attorney fees associated with the mediation
equally. If it proves impossible to arrive at a mutually
satisfactory solution through mediation, the parties agree
to submit the dispute to binding arbitration in the following
location: Philadelphia, PA. The parties agree that the binding
arbitration will be conducted under the rules of the American
Arbitration Association. Judgment upon the award rendered
by the arbitrator may be entered in any court with jurisdiction
to do so.
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