Affiliate Sales Program Terms and Conditions
These terms and conditions constitute the contract
between TonerTopUp and our affiliates. You will be asked to agree to them
in applying to be an Affiliate.
I expect like most of us you find a load of terms
and conditions a real turn off! I am sorry but it is important to have
a clear contract laid down to avoid misunderstandings and problems cropping
up later on.
You can find a simple exposition of the Affiliate
Program on our page explaining it. We also save a full page of answers
asked questions (FAQ). These at least are in plain English!
Smith & Young Sales Ltd trading as TonerTopUp
This Agreement contains
the complete terms and conditions to which you (the "Affiliate")
agree to be bound by as a participant in the affiliate program (the "Program")
of Smith & Young Sales Ltd trading as TonerTopUp
("TonerTopUp") and which shall apply once your application to
participate in the Program has been accepted by TonerTopUp.
ARTICLE 1. INTRODUCTION
1.01 TonerTopUp is the sole and exclusive owner of all right, title and
interest including all intellectual property rights in and to the contents,
logos, style, design, look and feel, of the website at www.tonertopup.co.uk
and other associated URLs (the "Website") and the trade name
TonerTopUp (the "Tradename").
1.02 TonerTopUp intends to and does sell and distribute
the various products listed on the Website (the "Product(s)")
using, in part, third party affiliates who will establish links to the
Website where the Products will be offered for sale or otherwise promote
the sale of the Products.
1.03 If, in the future, TonerTopUp sells and distributes
any other goods or services through the Internet, it shall offer to its
affiliates at that time the opportunity to become vendor-affiliates of
such goods or services. Such goods or services shall be included in the
defined term "Products" and this Agreement shall then also apply
to such goods or services.
ARTICLE 2. PARTICIPATION & REPRESENTATION
2.01 TonerTopUp hereby grants to the Affiliate the non-exclusive and revocable
right to market and advertise the Products and to establish links to the
Website, the whole in accordance with this Agreement.
2.02 The Affiliate shall diligently and continuously
market and advertise the Product through the Internet or otherwise and
shall develop, operate and maintain links from its website to the Website
and or undertake such other marketing at its sole cost and expense.
2.03 The Affiliate represents and warrants to TonerTopUp
that this Agreement has been duly and validly executed and constitutes
and shall continue to constitute a legal obligation, enforceable in accordance
with its terms.
ARTICLE 3. AFFILIATE SALES COMMISSIONS
3.01 Other TonerTopUp affiliates appointed as a direct
result of referral by the Affiliate constitute the Affiliate's "First
Level Team". Other TonerTopUp affiliates appointed as a direct result
of referral by their First Level Team constitute the Affiliate's "Second
Level Team". The Affiliate's First Level Team and Second Level Team
together constitute his"Team". The Affiliate is a member of
other affiliates' Teams in the same relative relationship.
If, as a result of a direct advertising effort of
the Affiliate, a referred customer of the Affiliate, or of a member of
their Team, orders and pays for any of the Products sold by TonerTopUp
in the future, TonerTopUp shall pay the Affiliate a selling commission
determined in accordance with the Affiliate Compensation Schedule which
follows this Agreement and which forms an integral part of it. The commission
("Sales Commission") is based upon the paid selling price of
the purchased Products before tax and excluding returns and any charges
made for postage, packing or carriage.
3.02 An Affiliate can earn a Sales Commission as described
in the Affiliate Compensation Schedule. An Affiliate shall not receive
a Sales Commission for a Product purchase made, directly or indirectly
(for example, via an intermediary for the purpose of collecting a commission),
by him/herself without the approval of TonerTopUp. Such approval will
be given at TonerTopUp's sole discretion where the Affiliate has made
significant third party sales or, in the view of TonerTopUp, spent considerable
effort in marketing the Products to third parties.
In the event that more than one Affiliate claims
the same commission for a sale, TonerTopUp shall select the one who shall
receive the compensation.
3.03 The Affiliate shall be responsible for all taxes
and other similar levies applicable to the Sales Commission pursuant to
any law or regulation. The Affiliate shall report the Sales Commission
to his taxation authorities as required by law.
3.04 TonerTopUp shall post and maintain, on a monthly
basis, a designated password-protected Web page for each Affiliate showing
his participation in the Program including the number of potential customers
referred by him and an estimate of the Sales Commission owing to him.
3.05 TonerTopUp shall, on or before the 30th day following
each month end, transmit to the PayPal or Bank account of the Affiliate
the Sales Commission representing the amount payable for the orders completed
in that month. (TonerTopUp reserves the right to delay sending payment
for one month, in exceptional cases up to two months, to prevent suspected
cases of affiliate fraud.) Selling statistics of the referred transactions,
supporting the amount paid, shall be made available by TonerTopUp on the
Affiliate's private Web page. The Sales Commission will be paid in British
Pounds Sterling and any costs of conversion into the currency of the Affiliate's
account shall be at his expense. For administrative convenience, if the
Sales Commission is less than 50 British pounds in a month, it shall be
accumulated during subsequent months until it exceeds that amount. If
the Affiliate earns no commission during a period of 12 months the Affiliate's
membership of the program will be terminated by TonerTopUp without notice
and any balance of less than 10 pounds of the Sales Commission shall be
forfeited. Sales Commission overpayments may be deducted from future payments
or shall be reimbursed by the Affiliate upon the request of TonerTopUp.
3.06 Upon written request and upon the receipt by
TonerTopUp of a deposit of 1000 British pounds and at the Affiliate's
expense, the Affiliate may cause TonerTopUp's books and records to be
examined by an independent firm of chartered accountants to ensure compliance
with this Agreement. In the event that the examination reveals an underpayment
error of more than 5%, the underpayment and the reasonable cost of the
examination to a maximum of 5,000 British pounds shall be paid by TonerTopUp
and the deposit returned to The Affiliate. If the examination does not
reveal an underpayment as aforesaid, the Affiliate shall compensate TonerTopUp
for its reasonable cost to a maximum of 5,000 British pounds and a minimum
of 1000 British pounds. The firm of chartered accountants utilized shall
limit the scope of their examination to the relevant information regarding
the Sales Commission and shall keep private and confidential all information
obtained in the course of the said examination other than the amount of
ARTICLE 4. AFFILIATE SITES AND PROMOTION METHODS
4.01 The Affiliate shall be solely responsible for all materials that
appear on his website or other material, electronic or physical, which
contain mention of TonerTopUp or the Products. The Affiliate shall strictly
adhere to all applicable laws and regulations in conducting his business
and more specifically in marketing and advertising the Products. Without
restricting the generality of the foregoing, the Affiliate shall not send
unsolicited e-mail and shall not send e-mail or any other communication
to a recipient if the recipient has requested that he discontinue such
communication, nor shall he send or display on its Web site any material
that may be considered to be harassing, libelous, defamatory, legally
obscene or pornographic, threatening, abusive or hateful.
4.02 TonerTopUp shall have the right, but not the
obligation, to pre-approve the graphics and logos used on any Web site
which is linked to its site. Furthermore, the Affiliate shall annotate
its site with appropriate copyright, trademark and other similar notices,
which shall be approved by TonerTopUp. If the Affiliate specifies a price
point for the Products in its marketing and advertising, he shall ensure
that it is updated regularly to reflect all price changes.
4.03 TonerTopUp shall have the right to monitor the
Affiliate's Web site at any time and from time to time to determine if
it is in compliance with the terms and conditions on this Agreement.
4.04 TonerTopUp shall have the right, but not the
obligation, to help the Affiliate promote its Products more effectively
and to email him with information relating to TonerTopUp, the Products
and marketing thereof. He may unsubscribe from such emails by terminating
this Agreement at any time (see 9.02 of this Agreement).
4.05 The Affiliate agrees not to use any predatory
advertising methods designed to generate traffic from sites that they
have not contracted with in the online promotion of TonerTopUp's Products
or affiliate program. Predatory advertising is defined as any method that
creates or overlays links or banners on web sites, spawns browser windows,
or any method invented to generate traffic from a web site without that
web site owner's, knowledge, permission, and participation. Examples include,
but are not limited to, keyword parsing browser plugins, banner replacement
technology, and browser spawning technology that is not web site dependent.
Participation in predatory advertising programs will be cause for immediate
termination of this Agreement and forfeiture of any outstanding commission.
4.06 The Affiliate may not display on any website
that contains a link to the TonerTopUp Website any links to websites of
other companies selling bottled refill toner.
ARTICLE 5. ORDER PROCESSING
5.01 TonerTopUp shall establish the procedures of selling the Products
including, without limitation, the placement of orders, pricing, payment
terms, processing, delivery, returns etc. Without restricting the generality
of the foregoing, TonerTopUp shall have the right to cancel, suspend or
delay any order for the Products, including the right to discontinue to
sell the Products at any time.
ARTICLE 6. LICENSES AND GOODWILL PRESERVATION
6.01 TonerTopUp shall have the right, but not the obligation, to approve,
in its sole and absolute discretion and with due regard to the protection
and preservation of the goodwill of TonerTopUp and the Products any promotional,
advertising or marketing item used. All deletions and modifications required
by TonerTopUp must be made by the Affiliate on any site or material where
the Products are mentioned.
6.02 The Affiliate shall acknowledge and clearly identify
and respect that all proprietary information, trademarks, copyrights and
all other similar rights in and arising out of the Products are, and shall
continue to be, the exclusive property of TonerTopUp. In the event of
learning of any claim or allegation that the Products infringe upon or
violate any intellectual property or proprietary rights of a third party,
or contains any unlawful, libelous, or untrue statement, the Affiliate
shall immediately notify TonerTopUp so as to enable TonerTopUp to defend,
settle or otherwise resolve the claim or allegation in a manner that TonerTopUp
deems appropriate in its sole discretion.
6.03 Customers who purchase the Products through the
Program shall be deemed to be customers of TonerTopUp, and the Affiliate
shall refer all Product-related questions, requests or queries to TonerTopUp.
TonerTopUp shall have the right to utilize their name and logo to advertise,
market, promote and publicise in any manner the Products.
6.04 The Affiliate shall not make or give to a customer
or a potential customer any warranty, representation or other statement
concerning TonerTopUp or the Products whether verbal or in writing or
in any of his advertising media without first obtaining the written consent
of TonerTopUp unless such warranty, representation or other statement
appears on the TonerTopUp Website. He shall also specifically refrain
from showing any projection of the income that might be obtained by joining
the TonerTopUp Affiliate program.
ARTICLE 7. RELATIONSHIP OF PARTIES
7.01 While the parties shall work hand-in-hand for the benefit of both,
the parties acknowledge and agree that the Affiliate shall, from a legal
perspective, act as and shall be an independent contractor and not an
employee or agent of TonerTopUp. Nothing in this Agreement shall create
a partnership, joint venture, agency, or franchise between the parties
in the legal sense of these terms. The Affiliate shall not sign any document
in the name of or on behalf of TonerTopUp nor shall he hold himself out
as being an agent of TonerTopUp or as having apparent authority to contract
for or bind TonerTopUp.
ARTICLE 8. PRIVACY
8.01 TonerTopUp will not release the confidential information supplied
by the Affiliate to any third party unless required by law so to do or
with your consent or in the course of transfer of business ownership subject
always to the express agreement that the name, address and email address
of the Associate will be made available to those into whose Teams he has
been placed by referral.
ARTICLE 9. LIMITATION OF LIABILITY
9.01 In no event shall TonerTopUp be liable for special, incidental, consequential
or punitive damages, including, without limitation, any damages resulting
from loss of profits, loss of business or loss of goodwill arising out
of or in connection with this Agreement or the Products, whether or not
such party has been advised of the possibility of such damages. TonerTopUp
shall not be liable for any damages if, for any reason whatsoever, its
Web site fails or is non-operational for any reason whatsoever.
ARTICLE 10. TERM OF THE AGREEMENT
10 .01 In the event that the Affiliate breaches any of the undertakings
or obligations set forth in this Agreement and does not remedy same within
7 days notice from TonerTopUp, it shall automatically forfeit the selling
Commission then receivable or receivable at any time in the future. TonerTopUp
shall, in addition, have the right to terminate this Agreement and shall
retain all other rights and remedies available to it at law or in equity.
10.02 TonerTopUp shall have the right but not the
obligation to terminate this Agreement if the Affiliate ceases to actively
market the Products for a period of 90 days or does not maintain a valid
e-mail address with TonerTopUp and in these cases any outstanding commission
due is forfeit. (TonerTopUp tracks all bounces of communications and automatically
terminates those whose e-mail address is not valid)
10.3 TonerTopUp shall have the right to terminate
this Agreement at any time upon written notice to the current email registered
address for any reason other than under the paragraphs above in which
case the Sales Commission owing representing the sums earned to the date
of termination shall be paid even after termination of this Agreement.
The Affiliate shall have the right to terminate this Agreement at any
time upon written or emailed notice to TonerTopUp.
10.03 As soon as notice of termination of this Agreement
is given or upon termination as herein provided, the Affiliate shall immediately
cease its marketing and advertising of the Products and shall forthwith
eliminate all mention and references to the Products and all links to
TonerTopUp. Pending the completion of the foregoing, TonerTopUp may hold
in abeyance the selling Commission due.
ARTICLE 11. MODIFICATION AND APPLICATION OF AGREEMENT
11.01 TonerTopUp may, in good faith, modify any of the terms and conditions
contained in this Agreement (including the Compensation Schedule), at
any time and in its sole discretion, by posting a change notice or a new
agreement on its Web site. If any modification to this Agreement is not
acceptable, the Affiliate's only recourse is to terminate this Agreement.
Continued participation following the said posting of a change notice
or new agreement shall constitute binding acceptance of the change.
11.02 If any of the provisions of this Agreement are
determined by a court to be unenforceable, they shall be severed from
this Agreement, and the remaining provisions shall remain in full force
11.03 This Agreement or any part thereof shall not
be assigned, transferred or conveyed to any other party without TonerTopUp's
consent which shall not be unreasonably refused.
11.04 This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, legatees,
executors, legal representatives, successors and assigns.
11.05 This Agreement represents the entire agreement between the parties
and supersedes all prior negotiations, agreements and understandings,
if any. For greater certainty but without restricting the aforementioned,
information contained in any of the following shall not form part of this
Agreement, namely: descriptions of the scheme (including the descriptions
of selling Commission payable) on TonerTopUp's Web site(s); e-mail communications
from TonerTopUp or from any of its employees, officers or directors; in
the Products, or in marketing / informational documents.
ARTICLE 12. INDEPENDENT INVESTIGATION
12.01 The Affiliate acknowledges that he has reviewed this Agreement and
agrees to all its terms and conditions. He understands that TonerTopUp
may at any time 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 his Web site. He has independently evaluated the desirability
of participating in the scheme and is not relying on any representation,
guarantee or statement other than as set forth in this Agreement.
ARTICLE 13. MISCELLANEOUS PROVISIONS
13.01 Any reference in this Agreement to gender includes all genders and
words importing the singular number only shall include the plural and
13.02 The insertion of headings and the division of
this Agreement into Articles and Sections are for convenience reference
only and are not to affect its interpretation.
13.03 Each of the parties hereto covenants and agrees that it shall execute
and deliver such additional agreements and documents and do such acts
and things as may be reasonably necessary fully and effectually to carry
out the intent and purpose of this Agreement.
13.04 Time shall be of essence of this Agreement.
13.05 All notices, requests and other communications
shall be deemed to have been received when posted by TonerTopUp on its
Web site. It shall also be deemed to have been received on the next business
day if transmitted by fax, e-mail or any other form of electronic mail
to the last known electronic address of the intended recipient.
13.06 This Agreement shall be governed by and construed
in accordance with the laws of England and all disputes concerning this
Agreement and the obligations assumed by the parties shall be resolved
before such courts. The parties have required that this Agreement and
related documents be drafted in English.
ARTICLE 14. AFFILIATE COMPENSATION SCHEDULE
This Compensation Schedule is in effect.
14.01 The Affiliate can earn 3 separate levels of commissions for referred
orders as follows:
All commissions are paid as percentage of the goods
sold value, scaled by the appropriate scale factor for each Product sold.
The scale factors are calculated by a formula from the gross profit margin
on each product and will have one of four values. 100%, 75%, 50% or 25%.
About 70% of the bottled toner refills sold by TonerTopUp are at the 100%
scale factor level and so carry the full rate commissions. Scale factors
may be changed from time to time when the cost or selling prices of the
Products change. Scale factors allow us to pay high commissions on Products
with good margins and still make a profit on Products with lower margins.
a) First Level Sales Commission
This is paid to the Affiliate whose code is recorded against the customer
as the introducing affiliate at a rate of 12% of the scaled value of the
b) Second Level Sales Commission
This is paid to the Affiliate whose code is recorded
against the customer in the second level position at a rate of 8% of the
scaled value of the order. He will have introduced the Affiliate whose
code is recorded as the introducing affiliate against the customer. He
will be paid this level of commission on the sales of his First Level
c) Third Level Sales Commission
This is paid to the Affiliate whose code is recorded
against the customer in the third level position at a rate of 2% of the
scaled value of the order. He will have introduced the Affiliate who introduced
the Affiliate whose code is recorded as the introducing affiliate against
the customer. He will be paid this level of commission on the sales of
his Second Level Team.