THIS IS A LEGAL AGREEMENT BETWEEN YOU AND NEWGY INDUSTRIES. BY CLICKING ON THE “SUBMIT APPLICATION” BUTTON AT THE END OF THIS AFFILIATE ONLINE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS. AFFILIATES MUST HAVE A PHYSICAL LOCATION IN THE UNITED STATES, CANADA, OR PUERTO RICO. APPLICATIONS FROM OTHER COUNTRIES WILL NOT BE APPROVED.
This agreement contains the entire, integrated and complete terms and conditions between Newgy Industries, Inc. (“Newgy Industries”), a Tennessee corporation, and you, the applicant, regarding your application to participate in the Newgy Affiliate Program (the “Affiliate Program”). Upon Newgy Industries’ acceptance of your application, this will be a legally binding agreement between you and Newgy Industries.
1. Enrolling in the Affiliate Program. To apply for participation in the Affiliate Program, you must properly complete this Affiliate Program application (the “Application”) and submit the Application to us Newgy Industries via our web site. We will review the Application and will notify you of our decision whether to accept the Application or reject it. We reserve the right to accept, condition or reject the Application in our sole and exclusive discretion.
2. Links to your Newgy Web Store. After we have notified you of acceptance of the Application, we will provide you with links to your Newgy Web Store from either your website, email message, or other hyperlink-capable medium. We will provide you with instructions to personalize your store and to track your sales and request payment. We will process all orders that are placed on your Newgy Web Store. You are prohibited from altering our rebates, shipping policies, free gifts/merchandise or other sales options unless specifically authorized by Newgy in advance.
3. Affiliate Referral Fees. On a MONTHLY basis, we will pay a fee to you, in accordance with the Affiliate Referral Fee Schedule below (the “Affiliate Referral Fee”), based on the “Shipped” orders that have been referred to Newgy Industries from your Newgy Web Store (a “Referred Order”). For a Referred Order to generate an Affiliate Referral Fee, the Referred Order must meet the following conditions (a “Qualified Referred Order”):
A. The ordering customer must have linked to and used your Newgy Web Store;
B. The ordering customer must have chosen one or more products during that session on your Newgy Web Store;
C. The ordering customer must have ordered the products through our automated ordering system (“Shopping Cart”) during that same session;
D. Newgy Industries must have accepted the customer order submitted during that session and shipped products to the ordering customer; and
E. The ordering customer must have accepted delivery of, and paid Newgy Industries in full for that order.
You acknowledge and agree that orders are not final until accepted by Newgy Industries which acceptance may be withheld, conditioned or delayed in the sole and exclusive discretion of Newgy Industries.
Orders that are placed after a customer enters your Newgy Web Store site but visits our site(s) (www.Newgy.com, www.Robopong.com, www.tabletennis.com, or other sites operated by Newgy Industries (the “Newgy Industries’ Sites”) are not eligible for the Affiliate Referral Fee. Orders placed subsequent to a Referred Order must still use your Newgy Web Store to be eligible for future Affiliate Referral Fees.
All customers who purchase product from Newgy Industries shall be customers of Newgy Industries whether they purchase through your Newgy Web Store or otherwise. Accordingly, those customers and their transactions with Newgy Industries shall be governed by all the policies, terms and conditions to which customers of Newgy Industries are subject.
4. Affiliate Referral Fee Schedule. You will earn an Affiliate Referral Fee equal to a percentage of the sales revenue of “Shipped” Qualified Referral Orders less shipping and handling charges, taxes collected, service contract revenue, and any other non-product charges on that order (the “Referral Order Revenue”) as follows:
Referral fees shall be payable in an amount equal to twenty-three and three-quarters percent (23.75%) of Referral Order Revenue actually received by Newgy Industries. If a customer of yours has chosen to pay with the EZ Pay Plan we will credit your account at the time the customer’s payments are received. At our sole discretion, we may establish other special referral rates for special promotions. We do not pay referral fees on any couponed items as they have already been discounted substantially to increase the sale of the primary item. Due to international agreements, sales will be restricted to customers in the United States (including Puerto Rico) and Canada.
5. Affiliate Referral Fee Payment. Within approximately 7 days following the end of each month, we will send you a check for the Affiliate Referral Fee earned on the Referral Order revenue for products that were shipped during that calendar month. If the fees payable to you for any month are less than $100.00, we may hold payment until the next month in which the accumulated $100.00 minimum is met.
Affiliates will act as Independent Contractors and as such are responsible for reporting all referral fees received under this agreement on their state and/or federal income tax returns.
If a customer returns a Qualified Referral Order, the associated Affiliate Referral Fee will be deducted from the fees to be payable to you in the month the return is processed. If the Affiliate Referral Fees attributable to returned products exceed the balance of fees to be payable to you, you will be billed for that excess. Any such excess is due and payable upon receipt of Newgy Industries’ invoice.
6. Limited Licenses. During the Term (as defined below) of this agreement, we grant to you a nonexclusive, revocable, non-transferable, non-sublicenseable license to use (a) Newgy Web Store and (b) our other names, logos, marks or symbols (the “Licensed Marks”) for the sole purpose of advertising, promoting or marketing your affiliate relationship with Newgy Industries.
Prior to using any of the Licensed Marks, you will submit to us for approval a draft of all proposed material that incorporates the Licensed Marks (e.g., publicity copy, artwork and layout), together with a brief statement setting forth the proposed use of such materials and any other background or supporting material reasonably requested by us to allow us to make an informed judgment. All such materials will be submitted to us at least ten (10) days prior to the date of first intended use. We will notify you of our approval or disapproval of such materials within five (5) business days of our receipt of all information required to be submitted. The approval, conditional approval or disapproval of such materials will be in our sole and exclusive discretion. Any materials not receiving our specific written preliminary approval will be deemed disapproved.
You will use the Newgy Web Store and any Licensed Marks only in the exact form, style and type approved by Newgy Industries, and you will include with the Licensed Marks such copyright, trademark or other notices as may be required by law or requested by us. We will have the right to alter, modify or discontinue the use of any of the Newgy Web Store material or the Licensed Marks or the form, style or type thereof at any time at our sole discretion.
In addition to the foregoing control measures, we may implement additional control measures to protect our intellectual property rights in the Newgy Web Store and the Licensed Marks, and you agree to cooperate with us in our efforts to protect such intellectual property rights. You further agree to maintain a level of quality in connection with your use of the Newgy Web Store and the Licensed Marks that is consistent with general industry standards, and you acknowledge that we will periodically monitor your use of the Newgy Web Store and the Licensed Marks to confirm your maintenance of such quality levels.
You acknowledge that, except for the license expressly granted in this agreement, you have not acquired and will not acquire any right, interest or title to the Newgy Web Store or the Licensed Marks by reason of this agreement or through the exercise of any rights in the Newgy Web Store or the Licensed Marks granted to you hereunder. You further acknowledge that all proprietary rights in the Licensed Marks and the goodwill associated therewith are solely owned by and belong to us, and that use of the Newgy Web Store and the Licensed Marks by you will inure to the sole benefit of Newgy Industries.
As between you and us, Newgy Industries will be considered the creator of the Newgy Web Store and the Licensed Marks, and all rights in the Newgy Web Store and the Licensed Marks will be the sole and exclusive property of Newgy Industries. In addition, you hereby grant, assign and convey to us any and all rights you may now have or may be deemed to have in the future with respect to the Newgy Web Store and the Licensed Marks or any portion of them. You agree not to register or attempt to register any brand, names, marks, or other elements of the Newgy Web Store or the Licensed Marks as a trademark, service mark, Internet domain name, trade name, or any similar trademarks or name, with any domestic or foreign governmental or quasi-governmental authority which would be likely to cause confusion with any of the Newgy Web Store or the Licensed Marks. You further agree not to seek to cancel or otherwise contest or challenge Newgy Industries’ rights in and to the Newgy Web Store and the Licensed Marks. You agree not to commit any act that would cause any of the Newgy Web Store or the Licensed Marks to vest in the public domain anywhere in the United States or Canada.
You acknowledge that Newgy Industries holds the rights to distribution and sale of all merchandise and has established said rights by securing specific dealer agreements with each manufacturer they represent. You also acknowledge that all transactions for such merchandise must be handled by Newgy Industries and transacted at your Newgy Web Store.
7. Indemnification. You agree that you will be solely responsible for, and that you will defend, indemnify and hold us, our affiliates and the respective officers, directors, agents, employees and representatives harmless from and against, any and all claims, suits, damages, losses, liabilities, obligations, penalties and expenses, including legal fees and expenses, relating to or based on the development, operation and maintenance of your Newgy Web Store, including all materials that appear on your Newgy Web Store.
8. Term and Termination. The “Term” of this agreement will begin upon our acceptance of your Application and will end on the date this agreement is terminated by either party. Either you or we may terminate this agreement at any time, with or without cause, for any reason whatsoever, or for no reason, by giving the other party two days’ written notice of termination. Upon the termination of this agreement for any reason, you will immediately cease use of your Newgy Web Store, and remove from your site, all Links and Licensed Marks and any other names, marks, symbols, copyrights, logos, fanciful or other characters, designs, representations, figures, drawings, photographs, ideas or other proprietary designations or properties owned, developed, licensed or created by us and/or provided by or on behalf of us to you pursuant to this agreement or in connection with the Program. You will not receive any fees on product sales occurring following the end of the Term, and fees earned through the end of the Term will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid and as a reasonable reserve against returns.
9. Modification. We may modify any of the terms and conditions contained in this Affiliate Referral Agreement, at any time and at our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the fee schedule, 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.
10. Limitation of Liability. WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (OR LOSS OF REVENUE, PROFITS OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE REFERRAL 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 Referral Program will not exceed the total Affiliate Referral Fees paid or payable to you under this agreement.
11. Disclaimers. 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, NONINFRINGEMENT, 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 YOUR NEWGY WEB STORE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS CAUSED BY YOUR SERVICE PROVIDER, HARDWARE/SOFTWARE FAILURES OR OTHER INTERNET ISSUES RELATED TO YOUR NEWGY WEB STORE.
12. Links. Except as provided for in this Agreement, you understand that the links contemplated above to the Newgy Industries’ Sites may not be used in any manner to provide viewers access to the Newgy Industries’ Sites via any caching, framing, layering or other techniques that cause intermediate copying of the Newgy Industries’ Sites (or elements thereof) or display of the Newgy Industries’ Sites or portions thereof in any manner unintended by Newgy Industries, including without limitation, display of the Newgy Industries’ Sites with any materials posted by the linking party or any other party except as expressly permitted herein. Each party agrees that it will not in any way suggest or imply by the use of the other party’s Licensed Marks that its site or any of its products or service are affiliated with, endorsed or sponsored by, or created in association with the other party except to the extent of the limited relationship established under this Agreement.
13. Confidentiality. Except to the extent required by law, neither party will disclose or use, and will direct its representatives not to disclose or use to the detriment of the other party, any Confidential Information (as defined below) with respect to the business of the other party furnished, or to be furnished, by such party, or their respective representatives to the other party or its representatives at any time or in any manner other than disclosures to employees, financial advisors, attorneys and accountants on a need-to-know and confidential basis. For purposes of this Paragraph, “Confidential Information” means the specific terms of this Agreement and any information about the business or activities of either party stamped “confidential” or identified in writing as such by a party to the other party promptly following its disclosure. Disclosure of Confidential Information to employees and agents of the parties hereto will be limited to a need-to-know basis under circumstances where the employee or agent is advised of the confidential nature of the disclosure and is bound to keep said information confidential. Notwithstanding the foregoing, the following information shall not be deemed Confidential Information: (i) information that is already known to the recipient party or its representatives or to others not bound by a duty of confidentiality prior to disclosure; (ii) information that becomes publicly available through no fault of the recipient party or its representatives; (iii) information that is independently developed by a party without the use of or reference to the Confidential Information of the other party; or (iv) information that properly comes into the recipient’s possession from a third party who is not under an obligation to maintain the confidentiality of such information. Notwithstanding anything contained herein, it shall not be a breach of this provision for either party to disclose Confidential Information pursuant to any applicable subpoena or other legal or regulatory process or to its shareholders pursuant to regulatory requirement so long as the recipient notifies the disclosing party prior to making such disclosure. Upon the written request of the disclosing party, the recipient party will promptly return to the disclosing party or destroy any Confidential Information in its possession and certify in writing to the disclosing party that it has done so. Notwithstanding any other provision of this Paragraph, either party may, for purposes of filing legally required documents in connection with any SEC or other government rules or regulations, disclose the existence but not the financial terms of this Agreement.
14. Assignment. You may not assign or transfer this agreement or any interest herein, nor shall the same be assignable by operation of law, without our prior written consent. For this purpose, “assignment” shall include any sale of a majority of the voting power of your capital stock or any merger, consolidation or other comparable transaction following which you are not the surviving corporation.
15. Governing Law. This agreement shall be governed by, and construed in accordance with, the laws of the State of Tennessee. Any legal proceeding of any nature brought by either party against the other to enforce any right or obligation under this agreement, or arising out of any matter pertaining to this agreement, shall be submitted for trial, without jury, before the federal or state courts located in Sumner County, State of Tennessee. The parties consent and submit to the jurisdiction of any such court and agree to accept service of process inside or outside the State of Tennessee in any matter to be submitted to any such court pursuant hereto.
16. Miscellaneous. No release, discharge or waiver of any provision of this agreement will be enforceable against or binding upon either party unless in writing and executed by the party granting such release, discharge or waiver. Neither the failure to insist upon strict performance of any of the agreements, terms, covenants or conditions hereof, nor the acceptance of monies due hereunder with knowledge of a breach of this agreement, shall be deemed a waiver of any rights or remedies that either party may have or a waiver of any subsequent breach or default in any of such agreements, terms, covenants and conditions. If any term or provision of this agreement shall be found to be void or contrary to law, such term or provision shall, but only to the extent necessary to bring this agreement within the requirements of law, be deemed to be severable from the other terms and provisions hereof, and the remainder of this agreement shall be given effect as if the parties had not included the severed term herein.
17. Entire Agreement. The provisions contained in this agreement constitute the entire agreement between the parties with respect to the subject matter of this agreement, and no statement or inducement with respect to such subject matter by any party which is not contained in this agreement shall be valid or binding between the parties.
18. Independent Investigation. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, HAVE HAD AN OPPORTUNITY TO CONSULT WITH YOUR OWN LEGAL ADVISORS IF YOU SO DESIRED, AND AGREE TO ALL THE TERMS AND CONDITIONS SET FORTH HEREIN. YOU AGREE THAT, IN INTERPRETING THIS AGREEMENT, NO WEIGHT SHALL BE PLACED UPON THE FACT THAT THIS AGREEMENT HAS BEEN DRAFTED BY US, AND YOU SHALL NOT ASSERT THAT THIS AGREEMENT IS UNENFORCEABLE OR INVALID ON THE GROUNDS THAT IT IS A CONTRACT OF ADHESION, THAT IT IS UNCONSCIONABLE OR ANY SIMILAR THEORY. 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 OTHER THAN AS SET FORTH IN THIS AGREEMENT.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND NEWGY INDUSTRIES BY CLICKING ON THE ” SUBMIT APPLICATION ” BUTTON AT THE END OF THIS AFFILIATE ONLINE APPLICATION; YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS.
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