Affiliate Agreement Terms

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Before submitting an application to participate in the BGM&M LLC, ColorTools.com (ColorTools™) Affiliate Program (the Program), the applicant must read this ColorTools Affiliate Agreement in its entirety. The agreement is a binding agreement between the individual or entity submitting the application to become an affiliate and ColorTools. This agreement contains the complete terms and conditions which you, the Affiliate, agree to be bound by as a participant in the Program and which shall apply once your application to participate in the Program has been accepted by ColorTools. 

1.    Enrollment in the Program

1.1.  To begin the enrollment process, you will submit a complete ColorTools Affiliate Program application. 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 discretion) that your site is unsuitable for the Program. Unsuitable sites include, but are not limited to, sites that promote any illegal activity, violence, sexually explicit material, discrimination; are libelous or defamatory; or any other material that we deem inappropriate. 

1.2.  Affiliates must provide the address(es) of the website(s) on which they intend to display the information about ColorTools’ products. 

1.3.  ColorTools shall have the right to monitor the Affiliate’s website(s) at any time to determine if it is in compliance with the terms and conditions of this agreement.  If the Affiliate’s website is determined by ColorTools at any point in time to be unsuitable for the Program, ColorTools may terminate this Agreement forthwith. 

 2.    Promotion and Recognition as a ColorTools Affiliate

2.1.  ColorTools will make marketing tools available to you. You will have your choice of the following: banners, text links, or graphics. Legal issues prohibit an affiliate from stating that they are representatives of ColorTools or any of the branded names used by our business. Affiliates may not state that they are part of, or work for, our business. 

2.2.  Affiliates who achieve consistent quarterly sales volumes above three-thousand ($3000.00) USD or maintain a web site attracting uniquely qualified cliental may request a customized ColorTools links page(s).  Evaluation criteria and the decision to act on the Affiliate’s request are at the sole discretion of ColorTools. 

3.    Order Processing 

3.1.  ColorTools will process product orders placed by customers who follow the Affiliate Identification Links from your site to the ColorTools online store. We reserve the right to reject orders that do not comply with any requirements that we may periodically establish. You must ensure that the Affiliate Identification Links between your site and our site are properly formatted.

3.2.  The Affiliate will automatically receive an email notification of purchases recorded with their Affiliate Identification Code. 

4.    Commissions 

4.1.  Only products 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. 

4.1.1.    Subject to Section 5.1, commission rates will be 15% of the net sales amount actually paid to us by users of your site who purchased products utilizing the links between your site and our site, excluding amounts collected by us for sales taxes, duties, shipping, handling, and related charges, amounts due to credit card fraud and bad debt, and credits for returned goods. 

4.1.2.    The affiliate acknowledges that no Affiliate Commission shall be payable to the Affiliate on any items sold through the Affiliate’s website that are returned pursuant to ColorTools ‘money back guarantee’. 

4.1.3.    If an item is paid for in part with one or more promotional gift certificates (gift certificates that ColorTools has distributed FREE for promotional purposes), the Affiliate Commission shall be based on the actual revenue received by ColorTools from the sale of the item(s). 

4.2.  Store Credit Commission Option 

4.2.1.    Subject to Section 4.1, an Affiliate may opt to receive ColorTools Store Credits at a commission rate of 20%, in lieu of the standard 15% rate. The commission credits are redeemable for ColorTools products and may not be used for purchases from third party affiliate links from our site. This option may be selected for all commissions earned, or for any particular quarter(s) specified by the Affiliate, but in no event will the Affiliate be allowed to change the agreed to form of payment during the then current quarter. 

4.2.1.1.   The accumulation of Store Credits will be treated as commission payments in accordance with Section 5, excepting the PayPal™ deposit described in clause 5.1. 

5.    Commission Payments

5.1.  Subject to clause 5.3 below, we will pay your commission fees on a quarterly basis. Approximately 30 days following the end of each quarter, you will be paid through direct deposit using PayPal™ for the commission fees earned on products that were shipped during the subject quarter. This policy has been instituted to allow time for purchase returns. Affiliates are not paid for merchandise returns, order cancellations or refunds.

5.2.  The tracking of Affiliate sales and Affiliate Commissions will be automated by ColorTools. All sales by the Affiliate will be identified electronically.

5.3.  If the fees or credits payable to you for any quarter are less than $50.00 we will hold those fees until the end of the next quarter. If a product that generated a commission is returned by the customer, we will deduct the corresponding refund from your payment. If there is no subsequent payment, you will be liable for that amount and we will bill you the net amount of the refund that is due us. 

5.4.  The Affiliate shall be responsible for all taxes and other similar levies applicable to the Affiliate Commission pursuant to any law or regulation.

6.    Policies and Pricing 

6.1.  Customers who buy products through the Program will be deemed to be customers of ColorTools. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold under the Program in accordance with our own pricing policies.

6.1.1.    Product prices and availability may vary from time to time. Because price changes may affect products that you already have listed on your site, you may not want to include price information in your product descriptions. We will endeavor to notify Program members by email at least 30 days prior to implementing price changes, product offering or discontinuing products. 

6.2.  We will use commercially reasonable efforts to present accurate information, however we cannot guarantee the availability or price of any particular product. 

7.    Limited Licenses of the ColorTools Logos and Trademarks 

7.1.  ColorTools grants you a non-exclusive, non-transferable, revocable right to use any and all marketing material in Section 2.0 and such other images which we grant express permission, solely for the purpose of identifying your site as a Program participant. You may not modify our marketing materials or images in any way without our permission. We reserve all of our rights for marketing materials, banners, text links and any other images, our trade names and trademarks, and all other intellectual property rights. We may revoke your license at any time by giving you written notice. 

8.    Responsibility Regarding Your Site 

8.1.  The Affiliate will be solely responsible for the development, operation, and maintenance of their site and for all the materials that appear on their site. Such responsibilities include, but are not limited to, the technical operation of your site and all related equipment; creating and posting product reviews, descriptions, and references on your site and linking those descriptions to our online ordering; the accuracy and propriety of materials posted on your site (including, but not limited to, all product-related materials); ensuring that materials posted on your site do not violate or infringe upon rights of any third party and are not libelous or otherwise illegal. 

8.2.  ColorTools disclaims all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including without limitations, attorney’s fees) relating to development, operation, maintenance, and contents of your site. 

9.    Term of Agreement 

9.1.  The term of this agreement will begin upon our acceptance of your ColorTools Affiliate Program application and will end when terminated by either 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 occurring during the term, and fees earned through the date of termination will remain payable only if related product orders are not cancelled or returned. We may withhold your final payment for a reasonable time to ensure the correct amount is paid.   

10.  Modification 

10.1.  ColorTools may modify any of the terms and conditions contained in this Agreement, at any time, and in our sole discretion. The Affiliate will be notified by email and the change will be posted on our site. Modifications may include, but are not limited to, changes in available commission fees, 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 ColorTools Affiliate Program following our posting of a change or new agreement on our site will constitute binding acceptance of the change. 

11.  Relationship of parties 

11.1.  The Affiliate and ColorTools are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. The Affiliate will have no authority to make or accept any offers or representations on ColorTools’ behalf. The Affiliate will not make any statement, whether on their site or otherwise, that reasonably would contradict anything in this Section. 

12.  Publicity 

12.1.  The Affiliate shall not create, publish, distribute, or permit any written or non-written material that makes reference to ColorTools without first submitting such material to us and receiving our written consent. 

13.  Limitation of Liability 

13.1.  ColorTools 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. 

14.  Disclaimers 

14.1.  ColorTools makes 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, ColorTools makes no representation that the operation of our site will be uninterrupted or error free, and will not be liable for the consequences of any interruptions or errors. 

14.2.  ColorTools will make every effort to maintain an attractive, up to date website. ColorTools will not be liable for site downtime or interrupted transmissions.

15. Indemnification 

15.1.  The Affiliate hereby agrees to indemnify and hold harmless ColorTools, 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 (i) 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, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributed to us. 

15.2.  In the event the Affiliate learns of any claim or allegation concerning ColorTools products, the Affiliate shall immediately notify ColorTools so as to enable us to defend, settle, or otherwise resolve the claim or allegation in a manner that ColorTools deems appropriate in its sole discretion.

16. Independent Investigation

16.1.  YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT COLORTOOLS 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 COLORTOOLS AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

17. Governing Law 

17.1.  This Agreement will be governed by the laws of the United States and the State of Florida, 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 Brevard County Florida, 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, insure to the benefit of, and is enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.

I accept these terms and wish to become a ColorTools.com Affiliate.