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Affiliate Agreement

This agreement contains the complete terms and conditions that apply to your participation as an Affiliate in MyWorkTools.com Inc. Affiliate Program ("the Program"), and the establishment of links from your affiliate Web site to our Web site, "www.MyWorkTools.com". By submitting your Affiliate Application you are confirming that you have read this agreement and you agree to be bound by the terms and conditions contained in this Agreement.

DEFINITIONS: "US," "OUR," OR "WE" AS USED HEREIN REFERS COLLECTIVELY TO MYWORKTOOLS.COM INC., ITS SUBSIDIARIES AND AFFILIATES, THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SHAREHOLDERS, PARTNERS, MEMBERS, AND OTHER OWNERS. "AFFILIATE," "YOU," OR "YOUR" REFERS TO THE OTHER PARTY TO THIS AGREEMENT, WHETHER AS AN ENTITY OR AN INDIVIDUAL, AND DOES NOT EXTEND TO ANY SUBSIDIARY OR PARENT ENTITY, NOR TO INDIVIDUAL DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SHAREHOLDERS, PARTNERS, MEMBERS, OR OTHER OWNERS OF SUCH ENTITY.
  1. Enrollment in the Program: To begin the enrollment process, you must submit a complete Affiliate Application via our site. We will evaluate your application in good faith and will notify you of your acceptance or rejection in a timely manner. We may reject your application if we determine (in our sole and absolute discretion) that your site is unsuitable for the Program for any reason, including, but not limited to, inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethically, or otherwise objectionable. If we reject your application, you are welcome to reapply to the Program at any time after 90 days from the date of rejection of your prior application.

  2. Promotion of Our Affiliation: As an Affiliate Site, we will make available to you various MyWorkTools.com Inc.'s links, which, subject to the terms and conditions of this Agreement, you may display 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 the Program and will establish a link from your site to ours.

    1. Links:

      1. MyWorkTools.com Inc. Banner Ad Links: Subject to the terms of clause (B) below, we will also provide MyWorkTools.com Inc. Banner Ad Links, which will consist of graphic images provided by us (and subject to change from time to time in our sole and absolute discretion) which shall contain MyWorkTools.com Inc.'s logo and or graphics and animation, or similar graphics and text. This Link will connect your site with a designated area on our site or our site's home page.

    2. Agreements Regarding Links:

      1. Utilizing MyWorkTools.com Inc. Banner Ad Links: You agree that you will cooperate fully with us in order to establish and maintain such Links. You also agree that you will display in your site only those graphic images (indicating a Link) that are provided by us, and you will substitute such images with any new images provided by us from time to time throughout the term of this Agreement. You shall display such graphic images prominently in relevant sections of your site. Each Link connecting users of your site to the pertinent area of our site must in no way alter the look, feel or functionality of our site. In addition, we encourage (but do not require) you to include a Link to the home page of our site.

  3. Our Responsibilities: We will be responsible for providing all information necessary to allow you to make appropriate Links from your site to our site. We will also make available our search engine for you to use on your site. We will be solely responsible for processing every order placed by a customer following a special Link from your site, for tracking the volume and amount of sales generated by your site, and for providing information to you regarding sales statistics. We will be responsible for order entry, payment processing, shipping, cancellations, returns, and related customer service for orders placed on our site or to us through a link from your site.

  4. Other Responsibilities and Opportunities of Affiliate Sites:

    1. You may display the Links prominently throughout your site as you see fit and with our consent.

    2. Contests and Promotions: As an Affiliate Site, you will be entitled to participate in and promote on your site any sweepstakes, contests, and special promotions we may offer, and in connection therewith, we shall make any such contests and promotions available to users of your site. In addition, you will be entitled to earn commissions as set forth in Sections 6 and 7 below.

    3. Compliance with the Agreement: We have the right at our sole and absolute 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.

  5. Commission Determination: The purchase price of "tools" as well as "subscriptions" will count toward the total sales during each three-month period following the date of acceptance of your application in which such work tools are sold. Only subscriptions/work tools that are sold by us (to users of your site linked to our site), and for which we have received full payment will qualify for a commission.

    1. The commission rate is:

      1. Subject to Section 7 (B) below, commission rates will be 15% of the aggregate purchase price actually paid to us by users of your site who purchase work tools utilizing the Links between our site and your site, less credits for returned goods ("Net Sales").

  6. Commission Payment:

    1. Check Generation: Subject to clause (B) below, based on Net Sales, we will send a commission fee check for the applicable commission fee (less any taxes required to be withheld under applicable law) and a statement of activity to you approximately thirty (30) days after the end of each quarter with each quarter ending on the last day of March, June, September, and December respectively.

    2. Minimum Payment: If during the first quarter of the term of this Agreement, or during any quarter following the payment of commissions to you, your commissions earned do not exceed two hundred fifty dollars ($250.00) then you shall not be entitled to receive any commissions during the applicable quarter. Thereafter, you will be paid commissions at the end of the quarter during which your aggregate commissions earned during such successive period exceed two hundred fifty dollars. At such time, you will be paid all commissions you would have otherwise been entitled to had your commissions exceeded $250.

  7. Reports of Sales: We will send you a monthly report detailing the products sold by us through your site the estimated commissions earned for the month. Approximately 30 days after each quarter following the date of acceptance of your application we will send you a statement of activity outlining net sales for the quarter attributable to your site.

  8. Your Responsibilities: You are solely responsible for ensuring that your site complies with all applicable copyright and other laws. You must have express permission to use another party's copyrighted or other proprietary material. We will not be responsible if you use another party's copyrighted or other proprietary material in violation of the law.

    1. No Agency Relationship: You and MyWorkTools.com Inc. 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. BY ENTERING INTO THIS AGREEMENT, NEITHER PARTY IS AGREEING OR AUTHORIZED TO ACT AS THE AGENT OF THE OTHER, AND NEITHER PARTY SHALL PURPORT TO ACT AS SUCH AN AGENT FOR THE OTHER. THIS AGREEMENT IS FOR MARKETING AND ADVERTISING PURPOSES ONLY. NEITHER PARTY EXPRESSES NOR IMPLIES ANY WARRANTY AS TO THE CONTENT, PRODUCTS OR SERVICES PROVIDED BY THE OTHER. EACH PARTY HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE OTHER PARTY FOR ANY AND ALL DAMAGES, ATTORNEYS' FEES, REASONABLE LITIGATION EXPENSES AND COSTS PERTAINING TO ANY CLAIM ARISING FROM A PURPORTED AGENCY RELATIONSHIP BETWEEN THE PARTIES, OR PREMISED UPON JOINT VENTURER, IMPUTED, OR VICARIOUS LIABILITY FOR THE ACTS OR OMISSIONS OF THE OTHER PARTY HERETO.

  9. Policies and Pricing: Customers who buy work tools or subscriptions through the Program will be deemed to be customers of MyWorkTools.com Inc. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and sales will apply to those customers. We may change our policies and operating procedures at any time in our sole and absolute discretion. For example, we will determine the prices to be charged for work tools sold under the Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. Because price changes may affect work tools that you already have listed on your site, you may not include price information in your site except in connection with promotions or contents, which may authorize from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.

  10. Publicity: You shall not create, publish, distribute, or permit any written material that makes reference to us without first submitting such material to us and receiving our prior written consent, which we may grant or withhold in our sole and absolute discretion.

  11. Licenses and Use of the MyWorkTools.com and MyWorkTools.com Inc Logos and Trademarks:

    1. Accessibility: We grant you a non-exclusive, non-transferable, revocable right to:

      1. access our site through the links solely in accordance with the terms of this agreement and:
      2. solely in connection with such links to use our logos, trade names, trademarks, and similar identifying material relating to us (collectively, the "licensed materials"), for the sole purpose of selling products on your site for MyWorkTools.com Inc. You may not alter, modify, or change the licensed materials in any way. THE LICENSED MATERIALS DO NOT INCLUDE ANY OF THE SUBSTANTIVE CONTENT OF OUR SITE, INCLUDING BUT NOT LIMITED TO THE WORK TOOLS THEMSELVES (WHICH MAY NOT BE COPIED OR REPRODUCED IN ANY MANNER WITHOUT OUR PRIOR WRITTEN AUTHORIZATION). We may terminate your right to use the licensed materials with or without cause at any time in our sole and absolute discretion. UPON REVOCATION OR TERMINATION OF THIS LICENSE, THE LICENSED MATERIALS SHALL BE REMOVED FROM YOUR SITE WITHIN TEN (10) CALENDAR DAYS OF YOUR RECEIPT OF ACTUAL NOTICE OF REVOCATION OR TERMINATION.

    2. Trademark Usage: You shall not make any specific use of any Licensed Materials for purposes other than selling work tools on your site for MyWorkTools.com Inc., without first submitting a sample of such to us and obtaining our prior written consent, which we may grant or withhold in our sole and absolute discretion. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light. We reserve all of our rights in the Licensed Materials and of our other proprietary rights. MYWORKTOOLS.COM INC., RESERVES ALL RIGHTS TO ITS LICENSED MATERIALS AND ALL OTHER PROPRIETARY INFORMATION AND/OR CONTENT FOUND ON OUR SITE, INCLUDING BUT NOT LIMITED TO ALL TRADEMARKS, LOGOS, IDENTIFYING MATERIALS, WORK TOOLS, AND OTHER PROPRIETARY CONTENT.

  12. Obligations Regarding Affiliate Web Site:

    Web Site Operations: You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. Such responsibilities include, but are not limited to, the technical operation of your site and all related equipment; creating and posting content, descriptions, and references on your site and linking those descriptions to our catalog; the accuracy and propriety of materials posted on your site (including, but not limited to, all Product-related materials); and ensuring that materials posted on your site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal.

    1. DISCLAIMER: MYWORKTOOLS.COM INC. DISCLAIMS ALL LIABILITY FOR ANY DAMAGES, EXPENSES OR COSTS WITHOUT LIMITATION ARISING FROM THE DEVELOPMENT, MAINTENANCE OR OPERATION OF YOUR WEB SITE AND ANY RELATED EQUIPMENT, PRODUCTS OR SERVICES OFFERED BY OR THROUGH YOUR SITE (EXCEPT THOSE PRODUCTS AND SERVICES PROVIDED DIRECTLY BY MYWORKTOOLS.COM, INC.). YOU HEREBY AGREE TO DEFEND, INDEMNIFY, AND HOLD US HARMLESS FOR ANY SUCH DAMAGES, ATTORNEYS' FEES, EXPENSES OR COSTS PERTAINING TO ANY CLAIM ARISING FROM THE DEVELOPMENT, MAINTENANCE OR OPERATION OF YOUR SITE AND ANY RELATED EQUIPMENT, PRODUCTS OR SERVICES.

  13. Term of the Agreement: The term of this Agreement will begin upon our written acceptance of your Affiliate application and will end when terminated by either party upon receipt of actual notice by the affected party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn commission fees on sales completed during the term of this agreement, and commissions earned through the date of termination will remain payable only if the related sales are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.

  14. Modification: We may modify any of the terms and conditions contained in this Agreement, at any time in our sole and absolute discretion. You will be notified by email and a change notice will be posted on our site. Modifications may include, but are not limited to, changes in the scope of available commission fees, commission schedules, payment procedures, and Program rules. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Program following our posting of a change notice or new agreement on our site will constitute binding acceptance of the change.

  15. DISCLAIMER OF WARRANTY: We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of 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.

  16. Representations and Warranties: You hereby represent and warrant to us as follows:

    1. Accountability: This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable by and against you in accordance with its terms;

    2. Performance: 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:

      1. any provision of law, rule, or regulation to which you are subject,
      2. any order, judgment, or decree applicable to you or binding upon your assets or properties,
      3. any provision of your articles by-laws or certificate of incorporation, or
      4. any agreement or other instrument applicable to you or binding upon your assets or properties;

    3. Trademark Authority: 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 your trademarks in the manner contemplated herein, and that such grant does not and will not:

      1. breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or
      2. infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity;

    4. Third-Party Approval: 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 contemplated hereby, and;

    5. Current Litigation: There is no pending or 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.

  17. Confidentiality: Except as otherwise provided in this Agreement or with the prior written 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:

    1. to any person pursuant to a subpoena issued by any court or administrative agency,

    2. to its accountants, attorneys, or other agents on a confidential basis, and

    3. otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Act of 1933, as amended, and the rules and regulations promulgated there under, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated there under.

  18. Limited Liability: We will not be liable for indirect, special, or consequential damages, or any loss of revenue, profits, or data, arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total commission fees paid or payable to you under this Agreement.

  19. Indemnification: You further agree to indemnify, defend and hold us harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and litigation expenses (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:

    1. any claim that our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party,

    2. any misrepresentation of warranty or breach of a covenant made by you herein, or

    3. any claim related to your site, including, without limitation, content therein not attributable to us.

  20. Independent Investigation: YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT BY US EXCEPT AS SET FORTH IN THIS AGREEMENT.

  21. Governing Law: This Agreement will be governed by the laws of the United States and the State of California without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Contra Costa County, California and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns
"NO WAIVER": Our failure to enforce your strict performance of any provision of this Agreement shall not constitute a waiver of our right to subsequently enforce such provision or any other term of this Agreement.

ENTIRE AGREEMENT: EXCEPT AS STATED IN PARAGRAPH 15 HEREINABOVE, THIS CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES. NO OTHER MODIFICATION MAY BE MADE TO THIS AGREEMENT EXCEPT IN A WRITING SIGNED BY BOTH PARTIES HERETO AND EXPRESSLY REFERENCING THIS AGREEMENT.

SEVERABILITY: THE PROVISIONS OF THIS AGREEMENT ARE HEREBY DECLARED TO BE SEVERABLE. THE INVALIDATION OF ANY PROVISION HEREOF SHALL NOT AFFECT THE ENFORCEABILITY OF ANY REMAINING PROVISION. IF ANY PROVISION HEREOF IS HELD INVALID BY A COURT OF COMPETENT JURISDICTION, SUCH PROVISION WILL BE RESTATED TO REFLECT AS NEARLY AS POSSIBLE THE ORIGINAL INTENT OF THE PARTIES IN ACCORDANCE WITH APPLICABLE LAW, AND THE REMAINDER OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT.

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