THIS IS A BINDING LEGAL AGREEMENT BETWEEN YOU (THE "AFFILIATE") AND TMI WIRELESS (“TMI”). BY SIGNING UP FOR THE TMI WIRELESS AFFILIATE PROGRAM YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY BOUND BY  EACH AND EVERY STATED TERM, CONDITION, AND NOTICE. FURTHER, YOU ACKNOWLEDGE AND AGREE TO BE LEGALLY BOUND BY ANY AND ALL AMENDMENTS AND MODIFICATIONS MADE TO THE AGREEMENT, FROM TIME TO TIME AS POSTED ON THE WEBSITE, AFTER YOUR ORIGINAL ACCEPTANCE.  IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU WILL NOT HAVE THE OPPORTUNITY TO PARTICIPATE IN THE TMI WIRELESS AFFILIATE PROGRAM.

 

TMI WIRELESS, INC. AFFILIATE AGREEMENT

TERMS, CONDITIONS AND NOTICES

 

SECTION 1:  Basic Recitals and Definitions

 

1.1 “Acceptance” shall mean that the Affiliate has checked the box agreeing to the Terms and Conditions of the TMI Wireless Affiliate Program on the signup form, thereby agreeing to be legally bound by all the terms and conditions of the Agreement, as stated herein and as amended or modified from time to time hereafter.  TMI reserves the right to reject the Affiliate’s application at any time after the Affiliate has indicated an “Acceptance.”

 

1.2 “Affiliate” shall mean a person or entity that submits an application to TMI Wireless in accordance with and subject to the terms of this Agreement, which is approved by TMI Wireless, and excludes any Affiliate who is later terminated from the TMI Wireless Affiliate Program (the “Affiliate Program”) set forth in this Agreement.  Please note that throughout this Agreement, "you," "your," and "yours" shall mean the Affiliate.  The purpose of the Affiliate Program is to allow the Affiliate to create an HTML link between the Affiliate’s web site and the TMI Wireless web site, subject to the terms and conditions of this Agreement. TMI reserves the right to accept or reject any Affiliate Application.  An applicant for the Affiliate Program is not required to pay an application fee or purchase any of the products and services of TMI in order to qualify for the program.

 

1.3 “Affiliate Application” shall mean the form located on tmiWireless.com where a potential affiliate applies for acceptance into the Affiliate Program.

 

1.4 “Affiliate Control Panel” shall mean that portion of tmiWireless.com that is restricted by a TMI-provided login to and for internal use only by TMI and the Affiliate.

 

1.5 “Affiliate Profile” shall mean the web page accessed through the Affiliate Control Panel that contains certain data about the Affiliate including, but not limited to, Affiliate's (i) first and last name or business name; (ii) mailing address; (iii) telephone number; (iv) Social Security Number or Employer Tax Identification Number; and (v) desired Password and User Name. 

 

1.6 “Affiliate Public Website” shall mean the website Affiliate publishes independently from Affiliate’s relationship with TMI, and which has a separate and independent domain name that is owned by Affiliate.  Such website is operated and maintained by Affiliate, or a representative or agent of Affiliate, and is the site on which Affiliate places the ID-Encoded Links to tmiWireless.com or Products and Services.

 

1.7 “Agreement” shall mean this Affiliate Agreement, which contains the complete terms and conditions that apply to the relationship between TMI and the Affiliate related to the Affiliate Program, which excludes separate agreements between the parties for ancillary products or services, including without limitation, the parties’ agreement related to the creation and operation of a Premium Website.

 

1.8 “ID-Encoded Link” shall mean the HTML code with special link formats that TMI provides to Affiliates for linking to tmiWireless.com, and which enables TMI to identify the end user as having been directed to TMI from a specific Affiliate’s web site.  References to ID-Encoded Link shall also include HTML code that creates banners and graphics, in addition to HTML links.

 

1.9 "Licensed Materials" shall mean any and all information and materials, whether copyrighted or produced and published with or without copyright, that TMI provides to its Affiliates for use related to the Affiliate Program. The Licensed Materials include, but are not limited to, all information and materials on Affiliate’s Personal Website, tmiwireless.com, Affiliate Control Panel, Premium Website and related links to other TMI data made available to the Affiliate by TMI.

 

1.10 “Personal Website” shall mean a TMI owned and activated website for the use (subject to this Agreement) of the Affiliate during the term of this Agreement; provided that TMI retains the sole authority and discretion to deactivate such Personal Website at any time, with or without notice or cause.  To maintain a Personal Website, the Affiliate must comply with all of the terms and conditions of this Agreement.  "Website" shall mean a URL web address on the Internet.

 

1.11 “Premium Website” shall mean the optional website service TMI offers to its Affiliates for an additional fee.  Under the Premium Website option, Affiliate owns the domain name and TMI owns, creates and edits the content.  Affiliate submits a separate application for this option, and additional terms and conditions apply.

 

1.12 “Product” or “Service” means any or all of the products or services offered on tmiWireless.com.  The term “Product” means, where applicable, both the products and services offered on tmiWireless.com. 

 

1.13 “Proprietary Information” shall mean all confidential and proprietary information of TMI, including but not limited to, lists or other identification of Affiliates; pertinent facts or information about Affiliates, accumulated and stored by TMI, including Affiliate User Names, Website URL names and addresses, "dba" names, email addresses and phone numbers; TMI’s Compensation Plan, as it presently exists or may be modified from time to time; TMI's accumulated information related to contacts and contractual agreements with Providers; and all other information obtained by or communicated to any Affiliate at any time as a consequence of or related to Affiliate’s participation in the Affiliate Program. Affiliate agrees that it will not use, disclose or communicate, or permit, allow or acquiesce to the use, disclosure or communication of, any Proprietary Information, except only in accordance with this Agreement. Affiliate agrees to maintain the Proprietary Information in strict confidence and shall exercise all necessary precautions to safeguard the secrecy of the Proprietary Information and to prevent its unauthorized disclosure to others. All Proprietary Information remains the intellectual property of TMI. This Section shall survive termination under this Agreement.

 

1.14 “Proprietary Marks” shall mean the trademarks and service marks “TMI,” “TMI Wireless,” “tmiWireless.com” plus, any and all of TMI’s names, trade names, trademarks, service marks and logos that presently exist and may be created, designed or otherwise originated from time to time for use in connection with TMI’s marketing of products and services.  All Proprietary Marks remain the intellectual property of TMI.  This Section shall survive termination under this Agreement.

 

1.15 “Provider(s)” shall mean a vendor that has entered into an agreement with TMI to offer the vendor's products or services through tmiWireless.com and/or TMI’s Affiliates.

 

1.16 “Recruiting Affiliate” shall mean an Affiliate through whose ID-Encoded Link or website another Affiliate applies to the Affiliate Program.

 

1.17 “Sub-Affiliate” shall mean any approved applicant of the Affiliate Program that submitted its Affiliate Application using another Affiliate’s Id-Encoded Link, or links located on another Affiliate’s Personal or Premium Website.

 

1.18 “TMI” or “TMI Wireless” shall mean TMI Wireless, Inc. Please note that throughout this Agreement, "we," "us," and "our" will mean TMI.

 

1.19 “TMIWireless.com,” “tmiwireless.com,” or “tmiWireless.com” shall mean the Internet Website of TMI Wireless, Inc. at URL www.tmiwireless.com and the collection of web pages under the tmiwireless.com domain name.

 

SECTION 2:  Relationship; Services

 

2.1 Business Relationship; Services; Expenses.  TMI has agreed to advertise certain Products and Services of its Providers through the use of TMIWireless.com.  TMI has created the Affiliate Program to enhance its ability to advertise such Products and Services by entering into this Agreement with certain pre-approved and authorized Affiliates.  The Affiliate will provide certain advertising services for the benefit of Providers in accordance with this Agreement (the “Advertising Services”). This Agreement creates a non-exclusive independent contractor relationship between TMI and Affiliate for the mutual benefit of TMI’s Providers. In exchange for performing the Advertising Services, the will receive commission payments as set forth herein. Affiliate shall be responsible for all expenses incurred by it in the performance of the Advertising Services, except as otherwise provided herein.

 

2.2 Personal Guarantee.  By joining the TMI Affiliate Program, individual Affiliate, or agent for Affiliate, if Affiliate is an entity, agrees to personally guarantee the performance of Affiliate’s duties and obligations pursuant to this Agreement.

 

2.3 Independent Contractor Relationship. 

 

(1) Affiliate and TMI are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship, or the relationship of principal and agent, between the parties. TMI and Affiliate agree that Affiliate's business is a separate and independent enterprise from that of TMI.  Affiliate shall determine the time, method and manner of advertising the Products and Services, provided that there is compliance with all the terms and conditions of this Agreement and any other policies and procedures established, from time to time, and published or announced by TMI. Affiliate and its employees shall exercise their own discretion and judgment as to the manner of performing the Advertising Services.  Affiliate shall determine its own working schedule and location in light of the needs of the particular Provider being served.

 

(2) As an independent contractor, Affiliate shall pay and report all expenses that it incurs in the performance of this Agreement, including, without limitation, expenses incurred for wages and related federal and state income taxes, social security taxes, unemployment insurance, self-employment taxes and employee benefits. Affiliate shall procure and maintain workers’ compensation coverage sufficient to meet the statutory requirements of every state in which Affiliate’s personnel are hired to perform Advertising Services.

 

(3) Neither Affiliate, nor any of its personnel, are employees of TMI or the Providers or entitled to any benefits or rights guaranteed by TMI or the Providers, or by operation of law, to their employees, including, but not limited to, group insurance, liability insurance, paid vacation, sick leave or other leave, retirement plans, health plans, pension or welfare benefits, “overtime” pay, and the like.  It is understood and agreed that since Affiliate is an independent contractor, TMI will make no deductions from fees paid to Affiliate for any federal or state taxes, including income taxes or social security, and TMI has no obligation to provide worker’s compensation insurance coverage for Affiliate.

 

(4) Affiliate does not have express, implied or apparent authority to enter into any contract on behalf of TMI or otherwise to bind TMI to any agreement.  TMI will not be liable for any obligation incurred by Affiliate, except as otherwise provided herein.

 

(5) Affiliate represents and warrants that it is a separate, independent, licensed business entity, duly authorized to perform Advertising Services under this Agreement, and that it makes its professional services generally available to a wide variety of other companies on a regular basis. During the term of this Agreement, Affiliate agrees that it will not perform any work for any other person or entity that is substantially similar to the Advertising Services if the performance of such work would have a material adverse impact upon the ability of the Affiliate to perform its obligations hereunder.

 

2.4 Professional Standards.  Affiliate shall provide and perform the Advertising Services hereunder in accordance with (i) the highest applicable ethical and professional standards prevailing at the time such Advertising Services are rendered, and (ii) any general standards, rules, regulations, policies, security procedures, and other standards specified by TMI or the Providers.

 

2.5 Customer Service and Product Responsibility

 

(1) Fulfillment.  Affiliate acknowledges that Products and Services are ultimately supplied by one or more manufacturers or service providers through one or more Providers, that TMI does not directly manage or fulfill customer orders or provide Products or Services, and that TMI does not have any contractual relationships with any customers who purchase any Products or Services from the Providers.

 

(2) Customer Service. Affiliates shall direct customers to the appropriate Providers customer service contacts for the Product or Service, and shall in no way represent that TMI is responsible for any customer service or related function including responding to order inquiries, billing inquiries, defective products, or product returns and service cancellation.

 

(3) Provider Return Policies.  Products and Services purchased through TMI are subject to the respective Provider's return policies.  TMI is not responsible for a Provider's return policies and TMI shall not accept Product returns.  Affiliates shall not represent that TMI is responsible in any way for returned Products or cancelled Services.

 

(4) Product Defects.  TMI is not responsible for defects in Products, and Affiliate shall not represent that TMI makes any warranty or representation regarding such Products.

 

(5) Service Quality.   TMI is not responsible for the quality of Services, and Affiliate shall not represent that TMI makes any warranty regarding such Services.

 

2.6 Commissions.

 

(1) Compensation Eligibility.  Eligibility of the Affiliate to receive commissions is conditioned upon compliance with TMI policies.  Commissions will be paid for sales originated by an Affiliate during the Term pursuant to this Agreement.  TMI reserves the right to terminate your account if it is idle for more than 30 days. [ATL: Maintenance of existing customer accounts and acquisition of new customer accounts are of primary importance to TMI. Compensation eligibility of the Affiliate to receive commissions and bonuses is conditioned upon compliance with TMI policies, plus performance of the Affiliate to: (i) sell at least one TMI product or service within the first 60 days of becoming a Affiliate and to sell not less than one TMI product or service for each twelve months; (ii) maintain the monthly minimum volume requirements, by the sixth month (after being accepted as an Affiliate by TMI) and each month thereafter; and (iii) maintain supervisory responsibility requirements of Sub-Affiliates as outlined herein by TMI. TMI may revoke the Affiliate's eligibility for compensation in the event the Affiliate fails or neglects to comply with the terms and conditions of this Agreement. ]

 

(2) In exchange for the Advertising Services, TMI shall pay Affiliate for each Final Sale (defined herein) generated through the ID-Encoded Link of such Affiliate an amount calculated pursuant to the Commission Schedule referenced in Paragraph 2.6(4) (the “Commission”).  A “Final Sale” means an order placed for a Product or Service that results in TMI receiving full and complete payment of a commission from the Provider related to such sale, and which does not result in a chargeback by the Provider.  Commissions charged back to TMI by the Provider for any reason, including customer early termination, will likewise result in a chargeback to the Affiliate as set forth herein.  The Affiliate will be subject to such chargebacks for a period of 180 days from date of customer acquisition.  Prepaid activations are not subject to chargebacks.

 

(3) Chargebacks.  If a customer disputes or rejects a purchased item, and:

 

                              (a)  TMI has not yet paid Affiliate a Commission based on such sale, no Commission will be paid related to such purchase;

                             (b)  TMI has already paid Affiliate a Commission based on the sale of that item, TMI will deduct the amount of the disputed Commission from Affiliate’s next monthly Commission payment. 

                              (c)  If there are no subsequent Commissions due to Affiliate, TMI will send Affiliate a bill for the amount of the disputed Commission, and Affiliate agrees that it will pay that bill no later than thirty (30) days after receipt.

 

(4) Commission Schedule.  Commissions are paid on the Products and Services and at the rates as posted under the “Compensation Plan” link on tmiWireless.com, as modified from time to time.  Affiliates are responsible for continuously checking tmiWireless.com and the Affiliate Control Panel for changes to the Commission schedule.

 

(5) ID-encoded Link Required.  Affiliate will not earn commissions on the purchases by customers who enter tmiwireless.com by any means other than Affiliate’s ID-Encoded Link, even if those customers previously followed an ID-Encoded from Affiliate’s site to tmiwireless.com or if those customers entered tmiwireless.com through a link from Affiliate’s site that is not ID-Encoded.

 

(6) Pay Cycle.  Commission payments will be mailed 35 days after the end of the subsequent month for Commissions earned during the current month (e.g., the Commission payment for sales made in August will be mailed by October 5th). Affiliate must be entitled to receive at least $25 in Commissions before receiving a check. Upon termination of this Agreement, TMI may hold Affiliate’s final Commission payment for a longer period of time to allow for the accrual of potential future charges; provided thatTMI will not withhold payment of the final Commission for greater than 120 days.

 

(7) Right of Set-off. Affiliate authorizes TMI to offset against Commissions, expense reimbursement, or any other amounts due to Affiliate from TMI, any amounts that the Provider withholds from payment to TMI related to deficiencies in the Affiliate’s Advertising Services or damages caused by Affiliate and any other amounts that Affiliate owes to TMI.

 

(8) Personal Use Sales.  Commissions earned on sales made by Affiliate for Products or Services purchased from Providers directly by Affiliate will be held for 180 days from the date of activation.

 

2.7 Legal Capacity. Affiliates who are individuals represent that they have legal capacity and have attained legal age to work and enter into contracts in the state or other authoritative locale in which the Affiliate markets  the Products and Services.

 

2.8 Changes to Products/Services and Pricing. TMI reserves the right to change Products and Services and related pricing from time to time without prior notice.  Any such changes or modifications shall become effective immediately upon posting on tmiWireless.com unless another effective date is specified. 

 

SECTION 3:  Affiliate Duties, Representations and Warranties

 

3.1 Accurate & Truthful Profile.  Affiliate warrants and agrees that data submitted on the Affiliate Profile is and must be kept current by the Affiliate to maintain communication integrity. All of the data supplied and entered in the Affiliate Profile by the Affiliate shall be truthful, factually accurate information.  Misrepresentations or fraudulent statements supplied in connection with this Agreement shall cause immediate termination of this Agreement and a right of setoff against present or future compensation allegedly due to Affiliate hereunder in an amount no greater than damages incurred or to be incurred by TMI as a result of such conduct. 

 

3.2 Identification Number. The Affiliate warrants that it shall provide TMI with a valid identification number (ID#). In the event the Affiliate is transacting business as an individual or in any other personal format, then that ID# shall be the Affiliate's Social Security Number (SS#). In the event the Affiliate is a corporation, limited liability company, or partnership, the ID# shall be the Federal Employee Identification Number ("F.E.I.N.").  In the event the purported entity does not provide a F.E.I.N., then TMI shall interpret the "entity" as an individual or group of individuals and require the appropriate SS#s.  In the event the Affiliate is located outside of the USA, then the appropriate governmental or other authoritative agency ID# or United States passport number shall be submitted to TMI. The Affiliate authorizes TMI to verify the ID# submitted.  The ID# shall be used by TMI for tax reporting and other lawful purposes. TMI shall not pay and the Affiliate shall not be entitled to payment of any Commissions or bonuses on Products and Services marketed prior to the receipt by TMI of the Affiliate’s ID# (SS# or F.E.I.N.).

 

3.3 Compliance with Laws and Regulations.  The Affiliate warrants that it shall comply with all federal, state and local taxes and regulations governing the sale of the Products and Services, and regarding the sending of e-mails, including, but not limited to the CAN-SPAM Act, effective January 1, 2004.  Affiliate shall be responsible for the payment of income tax, self-employment tax and other tax of any nature, if any, due and owing to any federal, state, county, municipal, country, province, territory or any other governmental taxing authority for the Affiliate and Affiliate’s employees, if any.  Such taxes are the responsibility of the Affiliate, who shall indemnify and hold harmless TMI for payment of any such taxes.

 

3.4 Change of Status. Affiliate is required to report to TMI any change in status that may affect Affiliate's rights to receive any Commission or other compensation from TMI.  Such change in status may include, a change of marital status or a change from individual to corporation, limited liability company, or partnership. This Agreement shall not be assigned or transferred without prior written approval of TMI.

 

3.5 Goodwill.  The Affiliate shall at all times safeguard TMI's reputation and promote the good will of TMI and the Products and Services marketed.  Affiliates shall refrain from any and all conduct that may be harmful to the reputation of TMI or the Provider(s).  The Affiliate shall refrain from and avoid all deceptive, misleading, unethical or discourteous conduct or practice.

 

3.6 Unauthorized Products and Services.  Affiliate shall not use Affiliate’s Public Website to promote, market or sell, directly or indirectly, products or services that are not specifically authorized in advance by TMI.  The terms, "directly or indirectly," include, but are not limited to, identification of such other products or services on the Affiliate Public Website wherein a symbol thereof is identified to provide linking to another website or multiple websites that promote, market or sell products and services other than the Products and Services, notwithstanding the fact that such products and services may not be competitive.  TMI reserves the right to immediately require the Affiliate to remove any reference to TMI, the Providers, the Products or Services and/or any link to tmiWireless.com from the Affiliate Public Website when, in TMI’s opinion and sole discretion, TMI determines that the Affiliate has violated the permitted use of the Affiliate Public Website as stated herein. 

 

3.7 Limited License of Licensed Materials and Proprietary Marks.  TMI hereby grants Affiliate a non-exclusive, limited license, for the Term of this Agreement, to use the Licensed Materials and Proprietary Marks solely for the purpose of advertising the Products and/or Services in the manner set forth in this Agreement.  Affiliate warrants and represents that it will not, directly or indirectly, use, display, duplicate, produce, reproduce, market, offer for sale, sell or distribute, in whole or in part, and shall not replicate in a deceptively similar form or style, any Licensed Materials or Proprietary Marks, except as authorized by this Agreement or prior written approval by an officer of TMI. Any license to use the Licensed Materials or Proprietary Marks terminates concurrently with the termination of  this Agreement.  All Licensed Materials and Proprietary Marks remain the intellectual property of TMI.  This Section shall survive termination under this Agreement.

 

3.8 Affiliate represents and warrants that it has the ability to fully and timely perform all Advertising Services and to undertake all risks it agrees to undertake hereunder.  Affiliate will promptly notify TMI in writing of any event that may have or has a material adverse impact on Affiliate’s ability to perform its obligations under this Agreement.

 

3.9 Affiliate represents and warrants that none of the Advertising Services rendered by Affiliate under this Agreement will violate or wrongfully interfere with any contract or other right of any third party. Affiliate further represents that it shall not disclose to TMI, nor use in connection with its retention hereunder, any confidential or proprietary information, technology, works, inventions, or other materials belonging to any third party.

 

3.10 Affiliate represents that it is not a party to any contract, or subject to any other obligation, that might restrict Affiliate from performing Advertising Services, including, but not limited to, any agreement not to compete or any agreement not to solicit.  Affiliate agrees to disclose any such contract or obligation to TMI prior to rendering any Advertising Services.

 

3.11 Affiliate represents and warrants that all materials prepared or provided, and all Advertising Services rendered, by it under this Agreement will not violate or infringe on any patent, copyright, trademark, trade secret, contract, privacy, publicity, or other right of any third party, and will not contain defamatory matter.  Affiliate further represents and warrants that all materials prepared or provided by it under this Agreement will be suitable for the use proposed by it without violating any statute, ordinance, or governmental regulation. 

 

3.12 In case of breach of any of the foregoing warranties, Affiliate shall promptly take all actions necessary to fully cure the breach and indemnify and compensate TMI for any and all claims and resulting damage, at Affiliate’s sole expense, including any reasonable attorney’s fees and costs incurred by TMI related thereto.

 

SECTION 4:  Website Use; Waivers; Disclaimers

 

4.1 Availability of Websites.  Affiliate recognizes that the traffic of data through the Internet may cause delays while accessing any TMI website including without limitation, tmiwireless.com, Personal Website, or Premium Website (“TMI Websites”).  Affiliate shall not hold TMI liable for any inability to access or delays in the access of such websites, from whatever cause, whether or not in the ordinary course of Internet use. This paragraph shall in no way affect the limitation of liability as described in paragraph 4.4.

 

4.2 Scheduled Maintenance.  TMI shall notify Affiliate by posting or e-mail of scheduled upgrades or maintenance work on tmiWireless.com or the Affiliate Control Panel, and if available, an estimate of the length of time the site(s) will be unavailable.

 

4.3 Website Deactivation.  TMI reserves the right to remove any statement, graphic image or other item, the presence of which violates the terms and condition of this Agreement, including without limitation paragraph 4.1.5, now in existence or as modified from time to time, particularly with respect to a Personal Website or Premium Website.  TMI reserves the right, in the alternative, to immediately deactivate, or require the deactivation of, and terminate the use of any TMI Website by the Affiliate without prior notice, in the event the Affiliate violates any of the terms and condition of this Agreement, now in existence or as modified from time to time.

 

4.4 Obligation to Monitor. Affiliate shall be obligated to continuously check tmiWireless.com and the Affiliate Control Panel for any changes in Affiliate Program rules or regulations.

 

4.5 Restrictions of Use. Affiliate warrants that it will not post, directly or indirectly on or by links to any other websites, any of the following material or information to the TMI Websites: (i) intellectual property copyrighted or trademarked by others; (ii) abusive, defamatory or inflammatory statements; (iii) statements which contain vulgar, obscene or indecent statements or graphical images; (iv) statements that threaten the person of others; (v) statements that are bigoted, hateful, racially offensive or endorse or