MRTOPTICK AFFILIATE PROGRAM
Terms & Conditions
Last Modified: November 1, 2019
This Affiliate Program Operating Agreement (the “Agreement”) is made and entered into by and between MRTOPTICK.COM. (“MRTOPTICK” or “we”), and you, (“you” or, if accepted into the Affiliate Program, “Affiliate”) the party submitting an application to become a MRTOPTICK. Affiliate). The terms and conditions contained in this Agreement apply to your participation in our Affiliate Program through the mrtoptick.com/affiliate-area link on our website (“Affiliate Program”). Each Affiliate Program offer (an “Offer”) may be for any offering by MRTOPTICK or a third party (each such third party a “Client”) and may link to a specific website for that particular Offer (“Program Website”). Furthermore, each Offer may have additional terms and conditions on pages within the Program Website which are incorporated as part of this Agreement. By submitting an application to become an affiliate or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement.
We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them and apply to the Affiliate Program and all access to and use of the Program Website thereafter.
Your continued use of the Program Website following the posting of a revised version of this Agreement means that you accept and agree to the changes. You are expected to check this page each time you access the Program Website so you are aware of any changes, as they are binding on you.
Enrollment in the Affiliate Program
You are eligible to participate in the Affiliate Program and earn Commissions (as defined below) if you are an Affiliate designated by us to participate in our Affiliate Program. You must submit an Affiliate Program application through our Program Website. You must accurately complete the application to become an Affiliate (and provide us with future updates as necessary to ensure that the information provided in the application is current and compete in all respects) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection of the Affiliate Program, generally within fifteen (15) business days. We may accept or reject your application at our sole discretion for any reason.
Obligations of the Parties
Subject to our acceptance of you as an Affiliate and your continued compliance with the terms and conditions of this Agreement, MRTOPTICK agrees as follows:
a. We will make available to you via the Affiliate Program graphic and textual links to the Program Website and/or other creative materials (collectively, the “Links”) which you may display on web sites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in online advertisements (collectively, “Media”). The Links will serve to identify you as a member of our Affiliate Program and will establish a link from your Media to the Program Website.
b. We will pay Affiliate a commission as provided herein (“Commission”) for each Qualified Action taken by a Qualified Referral. A “Qualified Referral” means an individual person who (i) accesses the Program Website via the Link, where the Link is the last link to the Program Website made by such individual prior to taking a Qualified Action, (ii) is not a computer-generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such Qualified Action within the time period allowed by MRTOPTICK and (v) is not later determined by MRTOPTICK to be fraudulent attempt to create a Qualified Referral, does not submit incomplete or false information relating to such individual or relating to the Qualified Action, is not otherwise unqualified to be a Qualified Referral or a duplicate of any other individual utilizing MRTOPTICK products or services. A “Qualified Action” is a paid subscription for MRTOPTICK services on a monthly or annual basis or such other transactions or transactions identified on the Program Website as a Qualified Action for purposes of the Affiliate Program by us from time to time.
c. We will pay Commissions specified in Schedule 1 attached to this Agreement (as such Schedule 1 shall be modified at the discretion of MRTOPTICK from time to time). Commissions for other Qualified Actions identified by us may be designated from time to time by us on our Program Website and set forth in Schedule 1(as such Schedule 1 shall be modified at the discretion of MRTOPTICK from time to time). We will pay you any Commissions earned quarterly, provided that your account is currently greater than $100. Accounts with a balance of less than $100 will roll over to the next month and will continue to roll over monthly until $100 is reached. We reserve the right to chargeback to your account any previously paid Commissions for Qualified Actions that are later determined to have not met the requirements to be a Qualified Action. Initial commission payment shall be made after the Affiliate commissions balance exceeds $600 AND a tax form W9 is filled out and on file with MRTOPTICK Affiliate Program administration.
d. Payment for Commissions is dependent upon Qualified Referrals providing such funds required for Qualified Actions to MRTOPTICK, and therefore, you agree that MRTOPTICK shall only be liable to you for Commissions to the extent that MRTOPTICK has received such funds from the Qualified Referrals. You hereby release MRTOPTICK from any claim for Commissions if MRTOPTICK has not received such funds from the Qualified Referrals.
e. MRTOPTICK shall automatically generate an invoice on behalf of Affiliate for all Commissions payable under this Agreement and shall remit payment of any Commissions due to Affiliate based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by MRTOPTICK in its sole discretion and all such determinations shall be the final absent manifest error. In the event that Affiliate disputes in good faith any portion of an invoice, Affiliate must submit that dispute to MRTOPTICK in writing and in sufficient detail within thirty (30) days of the date on the invoice. If the Affiliate does not dispute the invoice as set forth herein, then Affiliate agrees that it irrevocably waives any claims based upon that invoice.
f. If Affiliate has an outstanding balance due to MRTOPTICK under this Agreement or any other agreement between the Affiliate and MRTOPTICK, whether or not related to the Affiliate Program, Affiliate agrees that MRTOPTICK may offset any such amounts due to MRTOPTICK from amounts payable to Affiliate under this Agreement.
Affiliate also agrees and covenants to:
- Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media.
- Ensure that all materials posted on your Media or otherwise used in connection with the Affiliate Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that MRTOPTICK informs you that it considers objectionable (collectively, “Objectionable Content”).
- Not make any representations, warranties or other statements concerning MRTOPTICK or Clients or any of their respective products or services, except as expressly authorized herein.
- Make sure that your Media does not copy or resemble the look and feel of the Program Website or create the impression that your Media is endorsed by MRTOPTICK or Clients or a part of the Program Web site, without prior written permission from us.
- Comply with all (i) obligations, requirements, and restrictions under this Agreement and (ii) laws, rules, and regulations as they relate to your business, your Media, or your use of the Links.
- Comply with the terms, conditions, guidelines, and policies of any third-party services used by Affiliate in connection with the Affiliate Program, including but not limited to, email providers, social networking services and ad networks.
- Always prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by MRTOPTICK or Client, or as required by applicable laws regarding such Offers.
- Make sure to not place MRTOPTICK ads on any online auction platform (i.e. eBay, Amazon, etc).
- Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by MRTOPTICK in writing. Any pop-ups/unders used for the Affiliate Program shall be clearly identified as Affiliate served in the title bar of the window and any client-side ad serving software used by Affiliate shall only have been installed on an end user’s computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-English end user license agreement and the software be easily removed according to generally accepted methods.
- Affiliate Network Campaigns. For all Affiliates that maintain their own affiliate networks, Affiliate agrees to place the Links in its affiliate network (the “Network”) for access and use by those affiliates in Affiliate’s Network (each a “Third Party Affiliate”). Affiliate agrees that it will expressly forbid any Third Party Affiliate to modify the Links in any way. Affiliate agrees to maintain its Network according to the highest industry standards. Affiliate shall not permit any party to be a Third Party Affiliate whose web site or business model involves content containing Objectionable Content. All Third Party Affiliates must be in good standing with Affiliate. Affiliate must require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. Affiliate shall promptly terminate any Third Party Affiliate who takes or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Affiliate with respect to the Links, Affiliate shall promptly disclose to MRTOPTICK the identity and contact information for such Third Party Affiliate. Affiliate shall promptly remove any Third Party Affiliate from the Affiliate Program and terminate their access to future Offers of MRTOPTICK in the Network upon written notice from MRTOPTICK. Unless MRTOPTICK has been provided with all truthful and complete contact information for a Third Party Affiliate and such Third Party Affiliate has affirmatively accepted this Agreement as recorded by MRTOPTICK, Affiliate shall remain liable for all acts or omissions of any Third Party Affiliate.
Except as otherwise provided in this Agreement or with the consent of MRTOPTICK, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Affiliate shall not use any information obtained from the Affiliate Program to develop, enhance, or operate a service that competes with the Affiliate Program, or assist another party to do the same.
Limited License & Intellectual Property
We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Program Website.
You may not alter, modify, manipulate or create derivative works of the Links or any MRTOPTICK graphics, creative, copy, or other materials owned by, or licensed to, MRTOPTICK in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Affiliate Program. We may revoke your license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of MRTOPTICK’s trademarks, service marks, copyrights, patents, or trade secrets. You agree that MRTOPTICK may use any suggestion, comment, or recommendation you choose to provide to MRTOPTICK without compensation. All rights not expressly granted in this Agreement are reserved by MRTOPTICK.
This Agreement shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all MRTOPTICK or Client intellectual property, and will cease representing yourself as MRTOPTICK or Client affiliate for such one or more Offers. All rights to validly accrued payments, causes of action, and any provisions, which by their terms are intended to survive termination, shall survive any termination.
In addition to any other rights and remedies available to us under this Agreement, MRTOPTICK reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or chargeback paid Commissions to your account if (i) MRTOPTICK determines that you have violated this Agreement, (ii) MRTOPTICK receives any complaints about your participation in the Affiliate Program which MRTOPTICK reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program. Such withholding or freezing of Commissions, or chargebacks for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, MRTOPTICK reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
You must strictly comply with the federal CAN-SPAM Act of 2003 (the “Act”). All emails sent in connection with the Affiliate Program must include the appropriate party’s opt-out link. From time to time, we may request – prior to your sending emails containing linking or referencing the Affiliate Program that you submit the final version of your email to MRTOPTICK for approval by sending it to your MRTOPTICK administrator and upon receiving written approval from MRTOPTICK of your email the email may be transmitted to third parties.
It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon MRTOPTICK ‘s approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon MRTOPTICK ‘s approval.
You are expressly prohibited from using any persons, means, devices, or arrangements to commit fraud, violate any applicable law, interfere with other affiliates, or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using steAlware, cookie-stuffing, and other deceptive acts or click-fraud. MRTOPTICK shall make all determinations about fraudulent activity in its sole discretion.
Representations and Warranties
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, MRTOPTICK represents and warrants that it shall not knowingly violate any law, rule, or regulation which is applicable to MRTOPTICK ‘s own business operations or MRTOPTICK ‘s proprietary products or services.
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliate Program and each Offer and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement or on the Affiliate Program.
Affiliate hereby agrees to indemnify, defend and hold harmless MRTOPTICK and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Affiliate herein, (ii) any misuse by Affiliate, or by a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Links, Offers or MRTOPTICK or Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links).
MRTOPTICK hereby agrees to indemnify, defend and hold harmless Affiliate and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on a claim that MRTOPTICK is not authorized to provide you with the Links.
THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE “AS IS”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, MRTOPTICK EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. MRTOPTICK DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. MRTOPTICK EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. MRTOPTICK DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
Limitation of Liability
IN NO EVENT SHALL MRTOPTICK BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF MRTOPTICK. IN NO EVENT WILL MRTOPTICK BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT MRTOPTICK HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. MRTOPTICK ‘S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY MRTOPTICK IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
Governing Law & Miscellaneous
Affiliate shall be responsible for the payment of all attorneys fees and expenses incurred by MRTOPTICK to enforce the terms of this Agreement. This Agreement contains the entire agreement between MRTOPTICK and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Affiliate agrees that MRTOPTICK shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether MRTOPTICK “clicks through” or otherwise indicates its acceptance thereof. The affiliate may not assign all or any part of this Agreement without MRTOPTICK ‘s prior written consent. MRTOPTICK may assign this Agreement at any time with notice to Affiliate. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of Section 3, 4(b), 6, 7, 8, 11-14 and any accrued payment obligations shall survive the termination of this Agreement. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.
By submitting and application to Affiliate Program, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.
The Affiliate listed in this agreement is entitled to Commissions equal to 20% for each monthly subscription and 20% for each annual subscription Qualified Action taken by a Qualified Referral generated by an Affiliate. Commissions continue for each renewal of a Qualified Action subscription (i.e., if a Qualified Referral continues to subscribe on a consecutive monthly or annual basis, Commissions will continue to be paid for each subsequent renewal of a Qualified Action subscription).