The I.M.S Agreement
Affiliates & Business Plans
Read and Print this Agreement
AFFILIATE PROGRAM AGREEMENT
This Affiliate Program Agreement (the "Agreement") is made and effective from the date you sign up as an IMS Affiliate or Business Affiliate;
BETWEEN:
INFOMERCHANT MARKETING SOLUTIONS (hereafter called I.M.S), a corporation organized and existing under the laws of SOUTH AFRICA, with its head office located in GREENHILLS, JOHANNESBURG, GAUTENG, SOUTH AFRICA.
AND:
(the "Applicant"), a Corporation, Sole Trader or Private Individual organized and existing under the laws of SOUTH AFRICA or other Countries.
In consideration of the terms and covenants of this agreement, and other valuable consideration, the parties agree as follows:
RECITALS:
The name of this affiliate program is the “I.M.S” Affiliate Business Plans Program (the “Affiliate Program”).
The Applicant represents and warrants I.M.S that the Applicant has read and understands the Privacy Policies and agrees to the terms set forth therein.
For purposes of this Agreement, the term “the Applicant” refers to the individual or legal entity that applies for and is accepted into the Affiliate Program. The term “I.M.S” refers to the sponsor of the Affiliate Program. The term “I.M.S’s website” refers to the website that I.M.S maintains at 135 Greenhills Ave, Greenhills Randfontein, Gauteng, South Africa. The term “the Applicant’s website” refers to the website on which the Applicant agrees to place a link to I.M.S’s website as specified in the Exhibit “B” hereof. “Merchandise” means all products, merchandise and stock that are offered by I.M.S for sale through its website.
AFFILIATE PROGRAM REGISTRATION:
To register for the Affiliate Program, the Applicant must complete and submit to I.M.S an Affiliate Program Application Form. The Affiliate Program Application Form is available and included on I.M.S’s website and can be completed and submitted through its website.
APPROVAL OR REJECTION OF AFFILIATE PROGRAM APPLICATION:
I.M.S reserves the right to approve or reject ANY Affiliate Program Application in its sole and absolute discretion. The Applicant will have no legal recourse against I.M.S for the rejection of the Applicant Affiliate Program Application.
REASONS FOR REJECTION:
Without limiting the right to reject any application for any reason whatsoever in I.M.S absolute discretion, the Applicant application will be rejected if it is non complete, if the Applicant's website contains images or content that is not acceptable to Owner or is inconsistent with the image that I.M.S wishes to create in association with its website
If the Applicant's website contains any illegal, immoral, repulsive, defamatory, derogatory, harassing, harmful, threatening, obscene, vulgar, pornographic, racial or ethnic objectionable materials, depicts sexual situations, promotes discrimination on the basis of race, sex, sexual preference, national origin, ethnicity, nationality, disability, religious preference,
If the Applicant's site contains any material that appears to Owner to violate any patent, trademark, copyright, trade secret, confidential information, or other property rights of any other party.
TERMINATION AFTER ACCEPTANCE:
Even after I.M.S has accepted the Applicant as an Affiliate Program member, I.M.S reserves the absolute right to rescind or terminate the Applicant affiliate status for any reason in its sole and absolute discretion, including but not limited to the reasons set forth above.
FINANCIAL RESPONSIBILITIES:
The Applicant will be fully responsible for all costs and expenses of maintaining and marketing the Affiliate Program, including but not limited to all costs associated with the creations, hosting, modification, and improvements to the Applicant’s website, costs of search engine placement and other Internet marketing, costs of inserting I.M.S’s links into its website, offline marketing costs, postage costs, and all other costs and expenses, and the Applicant hereby holds I.M.S harmless from or against the same.
NO REPRESENTATIONS REGARDING INCOME POTENTIAL:
I.M.S makes no representations and warranties regarding potential income that may result from participation in this Affiliate Program and specifically disclaims any and all warranties relative to earning potential from the Applicant affiliate status.
RESPONSIBILITY TO LINK TO I.M.S’s SITE:
As a Program Affiliate, the Applicant will have the obligations to place links on its site directing users to I.M.S’s site.
I.M.S will make available to the Applicant button links, text links, and banner advertisements to be placed on the Applicant’s website which will direct users to Owner’s website via hypertext link.
As a Program Affiliate, the Applicant is given a limited term license, during the term of the Applicant active participation as a Program Affiliate, to utilize I.M.S’s logo images provided to the Applicant on the website that the Applicant designates in the Applicant Affiliate Program Application.
I.M.S makes available to its Affiliates, links, banners, and other information advertising its site to be used subject to the terms of this Agreement. These materials will contain its trademarks and other proprietary property. The Applicant may display these materials on the Applicant’s website for the purpose of promoting I.M.S’s site and participating in this Affiliate Program. If the Applicant discontinues the Affiliate Program or if the Applicant participation is terminated for any reason, the Applicant will immediately cease using these materials and will delete all such materials from its website and from its computer. The Applicant must obtain I.M.S approval of all links to I.M.S’s site that the Applicant place on its website. The Applicant will cooperate with I.M.S in the establishment and placement of links on the Applicant’s website.
The Applicant will only be permitted to use the links that I.M.S provided to the Applicant on the website that the Applicant designate in the Affiliate Program Application. Any additional website's or entities will require additional submissions of Affiliate Program Applications and approval by I.M.S.
The Applicant consent to I.M.S including information relative to traffic from the Applicant’s site in I.M.S reports. This information may be provided to outside parties.
You may not place links to I.M.S's website or website content in newsgroups, message boards, unsolicited email and other types of spam, banner networks, counters, chat rooms, guest books, and IRC channels or through similar Internet resources.
ANTI-SPAM POLICY:
I.M.S strictly forbid the use of unsolicited commercial email (UCE) or SPAM campaigns. I.M.S maintain a Zero-Tolerance policy against SPAM, be it direct, third party or any affiliate (Applicant) or similar agent acting on the Applicant's behalf. As such, I.M.S reserves the right to terminate any violating Applicant’s account or any part thereof, without notice or compensation.
Any Applicant’s found to be involved in a SPAM/UCE campaign, including flooding newsgroups, distributing messages to Applicants that do not want the information or any other abuse contravening UCE legislation will be met as follows:
The Applicant’s account will be closed immediately, without burden of notice or compensation.
A R 1000 administration fee will be incurred against the offending Applicant.
Our Privacy Policy becomes forfeit, and all pertinent information will be provided to any investigating authorities or anti-Spam organizations.
The Applicant will be held accountable for any monetary damages suffered by I.M.S, sustained through contravention of this Affiliate Program Agreement. This will include, but not limit to punitive damages related to lost clients and brand deterioration.
CUSTOMER SERVICE:
I.M.S will be responsible for handling all customer inquiries, product orders, customer billing and collection, product shipment relative to customers that enter I.M.S’s site through the links from the Applicant’s site. Pricing of I.M.S products and services is totally within its discretion and I.M.S reserves the right to change the pricing structure, terminate any special offers, discontinue products or services, or change the terms under which products or services are offered at any time, without any advanced notice to the Applicant or users accessing I.M.S’s site. I.M.S’s only responsibility to the Applicant in this regard is to track customer orders that occur through links from the Applicant’s website and make reports to the Applicant of the Commission and Bonuses due to the Applicant as a result thereof. All such reports shall be un-audited. I.M.S will have no obligation to provide the Applicant with any specific information relative to any customer, regardless of whether they access I.M.S’s site through the link from the Applicant’s site.
I.M.S is not responsible for the failure to assign any sale or Commission and Bonuses to the Applicant if the same results from the improper formatting of the link from the Applicant’s website. The Applicant should assure at all times that the link is appropriately formatted and report any problems that the Applicant may have with the same to I.M.S immediately.
COMPENSATION:
Commission and Bonuses will be paid to the Applicant based upon a percentage of sales made to users who access I.M.S’s site through the Applicant’s site. Commission and Bonuses will be calculated based upon the gross sales price, but not including any shipping and handling, sales tax, special service fees such as gift wrapping or packaging, late charges, collection costs, imports/export duties, and any other payment made to I.M.S that is not the purchase price for the product that is purchased. Commission and Bonuses will not be calculated based upon amounts that are attributable to credit card fraud, credits given to customers, bad debt right-off and returned goods. I.M.S reserve the right to deduct in subsequent months for any Commission and Bonuses that I.M.S paid that is for a product that is subsequently returned or refunded, or for any other reason if the previous monthly Commission and Bonuses was overpaid or later subject to reduction.
The percentages to be paid as Commission and Bonuses hereunder are currently as set forth in Schedule “A” at the end of this Agreement. I.M.S reserves the right to change and amend the Commission and Bonuses rate structure at any time, in I.M.S’s sole discretion.
Commissions and Bonuses will only be paid on sales that are tracked through I.M.S’s online tracking system and indicate the Applicant’s website’s link as the source. There is no right to Commission and Bonuses if a user later returns to I.M.S’s site and makes a purchase through another link or source other than through the Applicant’s website. The Applicant has no right to Commission and Bonuses based upon subsequent sales, even if the customer first arrived at I.M.S’s site through the link from the Applicant’s site. Commission and Bonuses will only be tracked and paid when the user makes a purchase on the same visit that the user visits I.M.S’s site from the link to its site on the Applicant’s site.
I.M.S will pay Commission and Bonuses only upon collection by I.M.S. The Applicant has no right to Commission and Bonuses until the applicable customer has paid I.M.S in full. Only purchases that are made through I.M.S’s online ordering process will count towards Commission and Bonuses calculations. For example, if a customer visits I.M.S’s website through the link from the Applicant’s website and instead of placing an online order calls and places an order via telephone, the Applicant will have no right to any Commission and Bonuses from that sale.
Commissions and Bonuses will be paid to the Applicant on a monthly basis on or about the 25th day of the subsequent month for amounts received by I.M.S during the previous month. I.M.S does not guarantee an exact date of calculation of Commission and Bonuses or payments. All payments will be made via Electronic Banking Transfer to the Banking Account that the Applicant supplied in the Affiliate Program Application. I.M.S does not send payment if the total Commission and Bonuses due to the Applicant is not at least R200. Amounts below R200 will accrue to the Applicant account and payment will be made for the month when the Applicant’s total Commission and Bonuses achieve the minimum of R200. I.M.S reserves the right to amend the minimum Commission and Bonuses payment amount at any time.
All Income Taxes shall be paid by the Applicant and shall also be declared to S.A.R.S by the Applicant. New Tax Laws Apply.
CUSTOMERS’ PROVENANCE:
All parties who make purchases through I.M.S’s website, regardless of whether they may have reached its website through the link from the Applicant’s website, are deemed to be I.M.S’s customers and not the Applicant’s customers relative to I.M.S’s products and services. I.M.S will have the right to contact these customers and send future marketing offers to them. The Applicant will have no right to Commission and Bonuses on subsequent purchases that may be made by these customers, except for subsequent purchases that may be traced at the time of purchase through a link from the Applicant’s website. Additionally, all such customers and purchases will be subject to I.M.S policies, procedures, rules and regulations and the Applicant has no right or authority to amend or offer any different offers relative to the purchase of products from I.M.S’s website. I.M.S however, reserves the right to amend any of its terms, conditions, policies, procedures, pricing, payment policies, collection policies, and all other items relative to I.M.S’s business and sale of products at any time in its sole discretion.
The Applicant will have a non-exclusive, limited term license to use the trademarks, logos, and copyrighted material that I.M.S provided to the Applicant for use solely on the home page that the Applicant designate in the Applicant Affiliate Program Application. The Applicant may only use the images that I.M.S specifically makes available to I.M.S Affiliate Members at the area of its website that is specifically designated as approved images for Affiliate Program Members. The Applicant may not distribute, reproduce, modify, and amend, these images in any way. The Applicant may use these images only for the purposes of promoting I.M.S’s website and products on the Applicant’s website in compliance with the Affiliate Program policies and procedures and the terms of this Agreement. The license so granted is subject to complete compliance with all terms and conditions of this Agreement and any policies I.M.S may create and amend from time to time regarding the Affiliate Program.
The Applicant will only use such items in the form, size, content, and appearance that I.M.S provided them to the Applicant. The Applicant is not permitted to modify them. The Applicant agrees to display these items prominently on its website. These items may only be used in if they contain a hypertext link to I.M.S’s website. This license shall immediately terminate upon the termination from the Affiliate Program. I.M.S may also terminate this license upon notice to the Applicant in the event that the Applicant’s use of these items is contrary to or does not conform to its standards, such standards to be determined in its sole and absolute discretion. The Applicant agrees that I.M.S retains all right, title and interest in and to all such materials. I.M.S will retain all goodwill and other value associated with any of these materials. The Applicant will not gain any trademark, copyright or other proprietary rights to such materials. The Applicant agrees not to take any action that is contrary to or inconsistent with I.M.S rights to these materials. The Applicant will not use these materials in any way that is damaging, defamatory, disparaging, derogatory, or negative to I.M.S or that paints I.M.S in a false or negative light. I.M.S may revoke the limited license granted hereunder at any time in writing to the Applicant. Upon termination or revocation, the Applicant will immediately cease from any use this material.
The Applicant is not permitted to use any other proprietary materials, including but not limited to trademarks, copyrights, logos, text, and any other materials that belong to I.M.S or to any other party and which may appear on I.M.S’s website.
The Applicant grants to I.M.S a non-exclusive right and license to use the Applicant’s trademarks, trade names, service marks, business names, web page titles, slogans, logos, and copyrighted materials for the purposes of promoting, advertising, announcing, or marketing the Applicant participation in I.M.S Affiliate Program. The Applicant represents and warrants to I.M.S that no other party has any rights in and to any of these materials and that these materials do not infringe upon or otherwise interfere with the rights of any other party. The Applicant represents and warrants being the absolute, sole and exclusive owner of all such materials and I.M.S of all trademark rights, copyrights, and other proprietary rights in and to the same. The Applicant represents to have the right, power, and authority to license said materials to I.M.S as aforesaid and that the Applicant is not under any legal or contractually limitation on the right to so license these materials. I.M.S has no obligation to announce, advertise, market, or promote the Applicant participation in I.M.S Affiliate Program, but reserves the right to do the same at its sole discretion.
PRODUCT AVAILABILITY:
I.M.S cannot guarantee product availability or the term of any price or special promotion or offer.
RESPONSIBILITIES:
The Applicant is responsible for all matters pertaining to the Applicant own website including its development, maintenance, operation and placing links on the Applicant’s site in compliance with the terms of the Affiliate Program. The Applicant is completely responsible for all items that appear on its site and for assuring that such items do not infringe upon or violate the rights of any other party. I.M.S is not responsible for any matter pertaining to the Applicant’s site or the content thereof and the Applicant holds I.M.S harmless and indemnifies I.M.S from any and all claims, suits, threats, demands, liabilities, actions, causes of action related in any way to the Applicant’s website and business. Such indemnity includes I.M.S costs and attorney fees in defending any such matter. The Applicant represents and warrants to I.M.S that its site does not and will not contain any materials that are illegal and that the Applicant’s site is not operated for an illegal purpose or in an illegal manner.
REPRESENTATIONS AND WARRANTIES:
The Applicant hereby represents and warrants to I.M.S to have the complete power and authority to enter into this Agreement and that this Agreement constitutes a valid and legally enforceable agreement. The entry of this Agreement has been duly and validly authorized by all necessary corporate or other organizational actions and approvals. The Applicant’s entry of this Agreement is not prohibited by the terms of any document, is not contrary to any law, rule or regulations, and is not in violation of any court or administrative order.
TERM:
The effectiveness of this Agreement shall not commence until the Applicant Affiliate Program Application is accepted by I.M.S. The effectiveness hereof and binding effect shall occur upon I.M.S acceptance of the Applicant Affiliate Program Application. This Agreement shall remain in full force and effect until terminated by the Applicant or by I.M.S. Either I.M.S or the Applicant may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination in compliance with this Agreement. Notices sent hereunder shall be via Email to the Applicant at the Email address indicated in the Applicant Affiliate Program Application. Any and all notices to the Applicant via Email at such address shall be deemed to be effective notice to the Applicant for all purposes.
TERMINATION:
The Applicant will forfeit all right to receive past Commission and Bonuses that may have accrued to the Applicant if this Agreement is terminated as a result of the Applicant failure to comply with the terms of this Agreement or any policies and procedures of Affiliate Program that may be established and amended by I.M.S in its discretion from time to time. If this Agreement is terminated for any other reason, the Applicant will have a right to receive its accrued Commission and Bonuses through the effective date of termination; provided, that if the Applicant total Commission and Bonuses due hereunder do not exceed R5000, such accrued Commission and Bonuses shall be forfeited. I.M.S has the right to withhold final Commission and Bonuses payments for sufficient time in order to assure that the amount paid to the Applicant is accurate and not subject to later adjustment for returns or any other reason. If following final payment I.M.S determines that the amount of Commission and Bonuses that the Applicant were paid was too high, as a result of subsequent returns or any other adjustment or reason, the differential shall be a debt from the Applicant to I.M.S and I.M.S shall have all legal right to receive a refund of such overpaid Commission and Bonuses from the Applicant.
MODIFICATIONS:
I.M.S reserves the right in its sole and absolute discretion, to modify any terms and conditions of the Affiliate Program and the terms and conditions of this Agreement upon notice to the Applicant. Notice of any changes may be given via Email to the Applicant or by posting such changes in the Affiliate Program sections of I.M.S’s website. Such changes and modifications will take effect upon transmission of Email or posting on I.M.S’s website. The Applicant may terminate participation in the Affiliate Program in the event that any of these modifications are unacceptable to the Applicant and such termination shall be the Applicant sole and exclusive remedy. In the event that the Applicant continues to participate in the Affiliate Program following such modifications, the Applicant will be deemed by the Applicant continued participation to accept any and all such changes.
LIABILITIES:
I.M.S HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND LIABILITY RELATED TO ANY DOWNTIME OR FAILURE FOR USERS TO BE ABLE TO ACCESS ITS WEBSITE OR TO ACCESS ITS WEBSITE USING THE LINK FROM THE APPLICANT’S WEBSITE. FURTHERMORE, I.M.S SHALL NOT BE RESPONSIBLE FOR AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES RELATED TO ITS WEBSITE, THE AFFILIATE PROGRAM, THE APPLICANT PARTICIPATION IN THE AFFILIATE PROGRAM, THE APPLICANT ABILITY TO MAKE ANY COMMISSIONS OR BONUS OR OTHERWISE PROFIT THROUGH PARTICIPATION IN THIS AFFILIATE PROGRAM, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTIBILITY, NON-INFRINGEMENT, OR ANY CLAIM MADE BASED UPON I.M.S’S COURSE OF DEALING OR USAGE OF TRADE. I.M.S DOES NOT REPRESENT OR WARRANT THAT ITS WEBSITE OR ANY APPLICATION, INCLUDING BUT NOT LIMITED TO ITS LINK TRACKING FEATURES, WILL BE ERROR FREE OR THAT THEY WILL FUNCTION WITHOUT INTERRUPTION.
I.M.S SHALL NOT BE RESPONSIBLE FOR ANY DIRECT OR INDIRECT DAMAGES OR LIABILITIES OF ANY NATURE, INCLUDING BUT NOT LIMITED TO INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, LOSS PROFITS, LOST BUSINESS OPPORTUNITY OR ANY OTHER DAMAGES; REGARDLESS OF WHETHER I.M.S WAS OR HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME AND TOOK NO ACTION TO PREVENT THE SAME.
Without limiting the forgoing, I.M.S total liability for any damages arising hereunder shall never exceed the total Commission and Bonuses paid and payable by I.M.S pursuant to the terms hereof.
CONFIDENTIALITY:
In the event that any information is disclosed to the Applicant through the Applicant participation in the Affiliate Program related in any way to I.M.S company and business which I.M.S deem to be confidential and proprietary, the Applicant agrees to hold such information in the strictest of confidence and not to disclose such information to any other party or to use any such information for the Applicant own purposes. Confidential information will include any information regarding I.M.S changes or modifications to this Agreement or this Affiliate Program (which I.M.S shall have no obligation to make) or any special treatment that the Applicant may receive (which I.M.S reserves the right to provide in its sole discretion to any affiliate). Confidential information shall also include any and all information related to I.M.S’s business, business plans, marketing plans, user statistics, financial information, pricing, profits, membership information, affiliations, sales information, and all other information which I.M.S considers to be confidential and proprietary.
INDEMNIFICATION:
The Applicant hereby indemnifies and holds I.M.S, and all of I.M.S stockholders, officers, directors, employees, contractors, affiliates, agents, successors and assigns harmless from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto, that I.M.S may incur and which are based in whole or in part upon the Applicant participation in the Affiliate Program, any claims that any of the Applicant trademarks and other proprietary material infringe upon the rights of any other party, the Applicant breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies of participation in the Affiliate Program, or any claim related directly or indirectly to the Applicant use, operation or the content of the Applicant’s website.
GOVERNING LAW:
This Agreement shall be interpreted under the laws of South Africa. Any and all legal actions relative hereto shall be in the courts of South Africa in Gauteng Province...
RELATIONSHIP OF THE PARTIES:
The parties hereto are independent contractors and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint ventures, shareholders, employer/employee, and agent/servant. The Applicant has no power or authority to bind I.M.S to any obligation, agreement, debt or liability. The Applicant shall not hold itself out as an agent or representative of I.M.S.
NOTICES:
Notices to I.M.S shall be by certified mail, return receipt requested addressed to the address contained in this Agreement, or such other address that I.M.S provide notice of to the Applicant via Email or by posting the same on the Affiliates section of I.M.S website. Notices to the Applicant shall be by Email addressed to the Email address that the Applicant provided to I.M.S in the Applicant Affiliate Program Application or by posting such notices on the Affiliate section of I.M.S’s website. It shall be the Applicant responsibility to check the Affiliate section of I.M.S website periodically to monitor all notices set forth thereon.
ASSIGNMENT:
This Agreement is only for the benefit of the party that the Applicant list in the Affiliate Program Application. The Applicant shall have not right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void.
ENTIRE AGREEMENT:
This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof and supercedes any and all prior discussions, understandings, agreements, representations, warranties or covenants between the parties related to the subject matter hereof. This Agreement may only be amended by a writing signed by the authorized representative of each of the parties, except as otherwise set forth herein. Any waiver of a breach or default under this Agreement shall not constitute a waiver of any subsequent or other breach or default and shall not serve to modify the agreements set forth herein.
If any provision or term of this Agreement is held to be invalid for any reason, it shall not affect the enforceability of the remainder of this Agreement or any other term or condition of this Agreement.
SCHEDULE A:
COMMISSION AND BONUS RATE STRUCTURE
Commission and Bonuses shall be payable to Applicants as follows;
As New Applicant you have made your choice when applying for membership. The choice of membership selected will generate the Commission and Bonuses on a monthly basis on all paid memberships.
All IMS Business Affiliates will forfeit Commission and Bonuses if their membership fees were not received on or before the 4th of each month. (Payable in Advance)
R100 Subscriptions - 50% Commission on Sales + 50% Bonus - New IMS Affiliates
**** Please note that NO Commission and Bonuses will be payable on your Membership Application or original purchase of InfoMerchant Marketing Solutions Memberships or Products. In other words you cannot buy from yourself or be your first purchase for the sole purpose of discounting your own product purchase.
The total Commission and Bonuses earned up to date will be available 24/7 on the InfoMerchant Affiliate Web Site and will be updated every hour. Links to the Applicants Affiliate Control Panel will be emailed to all Applicants after successful application.
....... Selecting the following link, means that you have accepted the terms and conditions and would like to join as IMS-50 Business Affiliate.
I have Read And Accept The terms of Agreement
(Click Above Only if Accepted)
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