AVN Foundation Affiliate & Reseller Terms & Conditions

Explanatory notes

1)  You register as an affiliate by completing the online/paper form.  By confirming your registration on the form/signing this document you agree to be bound by all the terms and conditions set out in this agreement.

2)  This agreement covers only our Affiliate Program.  When using our site or buying our AVN Foundation Products, you will be subject to our standard trading terms.

Now here is the agreement.  Your confirmation of these terms, binds you contractually to them. These are the agreed terms:

1. 1. Definitions which apply to this agreement

1.1.     “Affiliate” means a Visitor who joins our Affiliate Program directly from Your Site. It also includes you.

1.2.    “Reseller” means an Affiliate who has joined as reseller and runs AVN Foundation reseller edition from his/her own server to serve AVN Foundation services from his own server.

1.3.      “Affiliate Program” means the management system and software through which we operate.

1.4.     “Affiliate Tools” means any material in any medium supplied by us for use by you in promoting AVN Foundation Products or linking to Our Site.

1.5.    “Commission Period” means the period starting on the date a Visitor becomes a Tagged Visitor.

1.6.    “Commission” means the money paid by us to you under the terms of this agreement and includes, where the context so allows, Upper Level Commission.

1.7.   “AVN Foundation Products” means all of AVN Foundation Products offered for sale by us on Our Site.

1.8.   “Intellectual Property” means our intellectual property which we use in connection with Our Site.

1.9.  “Level one” and “Level one” refer to affiliates themselves or commission payments from sales made by Us as a result not of introductions direct from Your Website, but other affiliates who themselves were introduced from Your Website, and, at Level Three, sales as a result of introductions by Level one affiliates.

1.10.     “Member / Customer” means a Visitor who pays us for AVN Foundation  Products.

1.11.     “Our Site” means www.avnfoundation.ca

1.12.     “Pay Day” means the day each month on or before which we shall have paid Commission due to you.

1.13.     “Reports” means the reports automatically prepared on Our Site for the purpose of providing to you statistics relating to Tagged Visitors and sales.

1.14.     “Tagged Visitor” means a Visitor who at any time is recorded by us as having reached Our Site directly by way of a link from Your Site and with the intention of visiting Our Site.

1.15.     “Upper Level Commission” means the overriding commission calculated as a percentage of net sales after deduction of value added tax and any other applicable deductions at Level one and Level one.

1.16.     “Visitor” means a Visitor who visits Our Site.

1.17.     “Your Site” means the site on which you place one or more links to Our Site and through which we tag Visitors from you.

2. Applicable Values

2.1.       The Commission rate is (See web site for details).

2.2.       The Level Two Commission rate is (See web site for details)

2.3.       The Level Three Commission rate is (See web site for details).

2.4.       The Commission Period is 60 months.

2.5.       Pay Day is the 10th day of the month.

2.6.       Commission and Level Two Commission are payable only in respect of sales of AVN Foundation Products and not of services.

3. Relationship of Parties

3.1.       We and you are independent contractors, and nothing in this agreement creates any partnership, joint venture, agency, franchise, or employment relationship between us.

4. Commission calculation and payment

4.1.       Subject to this agreement, we will pay Commission and Upper Level Commission at the rates set out above, on or before the Pay Day in respect of all Commission credited in the previous month.

4.2.       Commission is calculated as a percentage of the net receipts arising from first sales after deduction of value added tax and any other applicable deductions.

4.3.       Commission is calculated in Canadian Dollars.  The rate of exchange (if applicable) is taken at the date of payment to you.

4.4.       Commission cheques in Canadian Dollars will be dispatched by  Pay Pal or before Pay Day each month in respect of Commission due for sales made in the previous month.

4.5.       At your request we will make payment to any bank account in your name in any currency, subject to payment by you of all costs associated with the payment.Must get approval from AVN Foundation.

4.6.       If the amount due to you is less than $25.00 in any month, the amount due will be carried forward to the following month repeatedly until the cumulative amount due exceeds $25.

4.7.       Commission shall not be payable in respect of a Visitor who is first tagged by us as having reached Our Site from a web site owned by some other person than you.

4.8.       Commission will not normally be payable on sums received other than through Our Site.

4.9.       If in our discretion, we believe that some person has interfered with the fair operation of our Affiliate Program, we may withhold payment of Commission.

4.10.     We will make payment to you or to any person nominated by you.  You may not change your nomination more than once in every year.

5. Commission Payable Ongoing

5.1.       For the purpose of this agreement a Tagged Visitor shall remain a Tagged Visitor throughout the Commission Period.

5.2.       Commission shall be payable by us to you in respect of the first sale to a Tagged Visitor within the Commission Period.

6. Merchant Tracking and Reports

We undertake to set up our affiliate Program so as to:

6.1.       Tag the identity of all Visitors from Your Site;

6.2.       Record all sales made to Tagged Visitors within the Commission Period;

6.3.       Record the cumulative amount of Commission due to you for any time period you choose;

6.4.       Record the history of payments of Commission made to you;

6.5.       Provide the Reports;

6.6.       Provide password protected access to you to the Reports.

7. Duration and Termination

    This agreement shall continue until terminated:

7.1.       By passing of time five years from date of execution; or

7.2.       By one month’s notice in writing by either of us to the other; or

7.3.       Immediately by us if we decide (in our sole discretion) that Your Site is or has become unsuitable. Unsuitable sites may include those that: are aimed at children, promote violence, promote discrimination based on race, sex, religion, nationality, disability, or sexual orientation; promote illegal activities, or violate intellectual property rights.  If we terminate the agreement under this paragraph we do not have to give you any reason; or

7.4.        Immediately by either of us if the other commits any material breach of any term of this agreement and which in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it.

8. Upon Termination

8.1.       You will remain entitled to all Commission earned on or before the date of termination.

8.2.       We will continue to pay you Commission on first sales made by us to Tagged Visitors for a period of one  years from the date of termination.

8.3.       We will continue to pay you Upper Level Commission for three years from the date of termination of your contract, provided Upper Level Commission paid to you in the immediately preceding 12 months exceeded $100.

8.4.       At our discretion, instead of keeping your account open and paying you on the basis set out above, we may choose instead to pay you a single lump sum equal to the total of the sums paid to you in the one year immediately preceding the termination of this agreement.

8.5.       All rights and licenses granted to you in this agreement shall immediately terminate, except that you will remain entitled to receive Commission payments as set out above.

8.6.       You will immediately stop using the Affiliate Tools and any other promotional materials and (where applicable) will remove them Your Site.

8.7.       If we continue to receive payments from Tagged Visitors after termination of this agreement, this will not constitute a continuation or renewal of this agreement or a waiver of termination.

8.8.       You will immediately return to us all copies of all confidential information in your possession and will cease to use the Intellectual Property.

8.9.       All claims or actions that one party has against the other shall remain intact despite termination.

8.10.     If at any time any person makes a claim against us in respect of activity undertaken by you or through your web site, we may deduct the amount of that claim from any payment otherwise due to you until the dispute has been resolved.

9. Refunds, Charges Back and Bad Cheques

9.1.       If a payment is later charged back by a merchant service provider or refunded to a customer or if a customer’s cheques does not clear, then Commission paid to you for that transaction will be repayable and will become a debt due by you.

10. Changes to This Agreement

10.1.     We reserve the right to change this agreement at any time and in any way.  A change will take effect when we post it on our web site.  No change will take effect to retrospectively reduce the amount of commission due to you.

10.2.     If you continue to send Visitors to Our Site, that will be taken as acceptance of the new terms.

10.3.     If we change the rate of Commission or Level Two Commission, we will give you 12 months’ notice or continue to pay you at the old rate for 12 months.

10.4.     We reserve the right to change the offer to prospective Customers at any time and without notice to you, even if this affects your earnings.  This includes change to prices, operating procedures and site layout and organization.

11. Spam

11.1.     If you send any form of spam we shall consider terminating your account immediately.  Any money due by us to any third party on account of messages sent by you immediately becomes a debt due by you to us.

12. Merchant Controls Visitor data

12.1.     We shall be solely responsible for order and payment processing, cancellations and refund processing, and all Customer services even when the link to Our Site is a co-branded page on Your Site.

12.2.     All personal information about Customers collected by us is owned solely and exclusively by us.

13. Confidentiality

13.1.     You are aware that in the course of working under the terms of this agreement you may have access to or happen to learn information about our Customers, our business, our way of doing business, our technology and all of our dealings, transactions and affairs.  All this information is strictly confidential.

13.2.     You now undertake that you will not divulge to any person whatever or otherwise make use of (and shall use your best endeavors to prevent the publication or disclosure of) any trade secret or confidential information.

14. Indemnity

               You agree to indemnify us against all costs claims and expense arising directly or indirectly from:

14.1.      Any claim representation or warranty made by you in connection with us or AVN Foundation; or

14.2.     Your failure to comply with the law of any country; or

14.3.     The posting by you of any content on Your Site; or

14.4.     the sending by you of any messages from your site which are of an objectionable nature whether or not you define them as “spam”; or

  14.5.     Any use of Your Site for a purpose forbidden by this agreement;

15. Interruption to the Service

15.1.     We are not liable to you for loss of business arising from any interruption to our service or technical problem with our web site.

16. Publicity and Affiliate Tools

16.1.     You will not create, publish, distribute or permit any written material that makes reference to us without first having obtained our written consent.

16.2.     You agree that you will not without our prior approval in writing use any written or other means of promoting referrals to us except the material comprising Affiliate Tools or promotions supplied by us.

16.3.     Affiliate Tools consisting of text may be changed with our permission.  Tools comprising graphics may not be changed.

16.4.     We are under no obligation to provide additional marketing material or assistance to you but if we do so that shall not make us liable in any way to you or to any third party for that or any material on Your Site.

16.5.     You are responsible for the correct formatting and presentation of the dynamic links to Our Site through which

Commission will be recorded.

17. License to use Intellectual Property

17.1.     We hereby grant to you a non-exclusive, non-transferable license, during the term of this agreement, to use the Intellectual Property solely to promote the sale of AVN Foundation Products while this agreement lasts.

17.2.     This license cannot be sub-licensed, assigned or otherwise transferred by you.

17.3.     You agree that you will not do or omit any action that has the result of prejudicing or damaging the Intellectual Property.

18. Limitation of liability

18.1.     You agree that we are not liable to you in any circumstances for any sum of money except the Commission due under this agreement.  But if, and only if, in any jurisdiction, this sub-paragraph is deemed to be void, then the following sub- paragraphs shall apply in its place.

18.2.     The following provisions set out our entire liability (including any liability for the acts and omissions of our staff/employees) to you in respect of:

18.3.     Any breach of our contractual obligations arising under this agreement; and

18.4.     Any representation statement or tortious act or omission including negligence arising under or in connection with this agreement.

18.5.     Any act or omission on our part falling within this paragraph shall be known as an ‘Event of Default’.

18.6.     Our entire liability in respect of any Event of Default shall be limited to damages of an amount equal to the total Commission paid or payable by us under this agreement for the last previous one year.

18.7.     We shall not be liable to you in respect of any Event of Default for loss of profits, goodwill or any type of special indirect or consequential loss (including loss or damage suffered by you as a result of an action brought by a third party) even if such loss was reasonably foreseeable or we had been advised of the possibility of you incurring it.

18.8.     If a number of Events of Default give rise to substantially the same loss then they shall be regarded as giving rise to only one claim under this agreement.

18.9.     You agree to give us not less than 28 days in which to remedy any Event of Default.

18.10.   Nothing in this paragraph shall give you any right or remedy to which you would not otherwise be legally entitled.

18.11.   We shall not be liable to you for loss arising from or in connection with any representations agreements statements or undertakings we may have made prior to the date of this agreement.

19. Miscellaneous matters

19.1.     Nothing in this agreement or on our web site shall confer on any third party any benefit under the provisions of the Contracts (Rights of Third Parties).

19.2.     You may not assign this agreement without our consent.

19.3.     Each sub paragraph in this agreement is independent and severable from each other paragraph and enforceable accordingly.  If any restriction is unenforceable for any reason but would be enforceable if part of the wording were deleted, it will apply with such deletions as may be necessary to make it valid and enforceable.

19.4.     Any notice to be served on either of us by the other shall be sent by e-mail to the last known e-mail address of the other and is deemed to have been properly sent without proof of receipt.

19.5.     Our failure to enforce at any time or for any period any one or more of the terms or conditions of this contract shall not be interpreted as a waiver of them or of the right at any time subsequently to enforce all terms and conditions.

19.6.     This contract shall be interpreted according to the laws of Ontario, Canada.

20. IN WITNESS WHEREOF, the parties hereto have executed this

               agreement as of the dates set forth below: