This Agreement contains the complete terms and conditions that apply to an individual's
or entity's participation in the JoeDiverAmerica™ Affiliates Program (the
"Program"). As used in this Agreement, "we" means JoeDiverAmerica™,
"you" means the applicant, and "sporting goods product" means
any item offered for sale in the JoeDiverAmerica™ store. "Site"
means a World Wide Web site and, depending on the context, refers either to JoeDiverAmerica™'s
site or to the site that you will link to our site.
To begin the enrollment process, you will submit a complete Program application
via our site. We will evaluate your application in good faith and will notify you
of your acceptance or rejection. We may reject your application if we determine
(at our sole discretion) that your situation or site is unsuitable for the Program.
Unsuitable sites include, but are not limited to, sites that:
You will link directly into JoeDiverAmerica™ using the html code we will provide
All banners, logos, and other content found on our website is protected by copyright.
You may not copy or edit any copyrighted material without written permission from
JoeDiverAmerica. You may not make references to JoeDiverAmerica vendors, their logos
and products within your own website. Products and pricing may be updated from time
to time, therefore, you may not list any prices on your site for products offered
New standards will be posted in the Operating Agreement. It is your responsibility
as the affiliate to ensure that all changes to the Operating Agreement are adhered
We will process sporting goods product orders placed by customers who follow links
from your site to JoeDiverAmerica™. We reserve the right to reject orders
that do not comply with any requirements that we periodically may establish. We
will be responsible for all aspects of order processing and fulfillment.
Among other things, we will prepare order forms; process payments, cancellations,
and returns; and handle customer service. We will track sales made to customers
who purchase sporting goods products using links from your site to our store and
will provide you reports summarizing this sales activity.
Subject to the terms and conditions of this Agreement, we will pay you referral
fees on sporting goods product sales to third parties. For a sporting goods product
sale to generate a referral fee, the customer must follow the link from your site
to our store, purchase a sporting goods product using our automated ordering system,
accept delivery of the sporting goods product at the shipping destination, and remit
full payment to us. All subsequent returns will be credited back to your account
at the time such return is credited to the customer.
You will earn referral fees based on the sale price of qualifying sporting goods
products, according to fee schedules to be established by us. Sale price means the
sale price a customer pays for a product and excludes costs for shipping, handling,
gift wrapping, returns, chargebacks, fraud, exchanges, credit card processing fees,
The monthly fee schedule is as follows:
Earn 7% for all sales generated (during the lifetime of this agreement).
This fee schedule is subject to change without notice.
Subject to the terms and conditions of this Agreement, we will pay you referral
fees on a monthly basis. Approximately 30 days following the end of each calendar
month, we will send you a check for the referral fees earned on sporting goods products
that were shipped during that month, less any taxes that we are required by law
to withhold. However, if the fees payable to you for any calendar month are less
than $10.00, we will hold those fees until the total amount due is at least $10.00
or (if earlier) until this Agreement is terminated. If a sporting goods product
that generated a referral fee is returned by the customer, we will deduct the corresponding
fee from your next monthly payment. If there is no subsequent payment, we will send
you a bill for the fee, which is due to JoeDiverAmerica thirty (30) days after you
receive the bill.
Affiliates are expected to generate minimum annual sales of $500. If the minimum
annual sales volume is not reached during any 12 month period, JoeDiverAmerica,
at its sole discretion, will decide whether to terminate this agreement.
Customers who buy sporting goods products through this Program will be deemed to
be customers of JoeDiverAmerica™. Accordingly, all JoeDiverAmerica™
rules, policies, and operating procedures concerning customer orders, customer service,
marketing, promotions, and sporting goods product sales will apply to those customers.
We may change our policies and operating procedures at any time. For example, we
will determine the prices to be charged for sporting goods products sold under this
Program in accordance with our own pricing policies.
Sporting goods product prices and availability may vary from time to time. We will
use commercially reasonable efforts to present accurate information, but we cannot
guarantee the availability or price of any particular sporting goods product.
We will make available to you a small graphic image that identifies your site as
a Program participant. You will prominently display this logo or the phrase "in
association with JoeDiverAmerica™" somewhere on your site.
Please do not indicate that you are "part of" JoeDiverAmerica, "partners"
with us, or that you "work for JoeDiverAmerica".
We may modify the text or graphical image of this notice from time to time.
We grant you a non-exclusive, non-transferable, non-sublicensable, revocable right
to use the icon and message described in Section 8 and such other images for which
we grant express permission, solely for the purpose of identifying your site as
a Program participant. You may not modify the "Marks", the message, or
any of our images in any way. We reserve all of our rights to the Mark, the message,
any other images, our trade names and trademarks, and all other intellectual property
rights. We may revoke your license at any time by giving you written notice.
You will be solely responsible for the development, operation, and maintenance of
your site and for all materials that appear on your site. For example, you will
be solely responsible for: the technical operation of your site and all related
equipment, ensuring that materials posted on your site do not violate or infringe
upon the rights of any third party (including, for example, copyrights, trademarks,
privacy, or other personal or proprietary rights), ensuring that materials posted
on your site are not libelous or otherwise illegal. We disclaim all liability for
these matters. Further, you will indemnify and hold us harmless from all claims,
damages, and expenses (including, without limitation, attorneys' fees) relating
to the development, operation, maintenance, and contents of your site.
Except as provided here you agree that you have no rights, title or interest in
or to the Marks, the message or other images of JoeDiverAmerica™. You agree
not to apply for registration of any of the Marks (or any mark similar there to)
anywhere around the world. You agree that you will not engage, participate or otherwise
become involved in any activity or course of action that diminishes and/or tarnishes
the image and or reputation of any JoeDiverAmerica™ Mark.
Members acknowledge and agree that their Web site information (name, URL, traffic
counts, etc.) may be utilized by JoeDiverAmerica. Possible uses include, but are
not limited to, lists of the busiest sites, lists of member sites, etc. Members
agree to allow JoeDiverAmerica to use screen shots of any Web page that contains
a JoeDiverAmerica mark in JoeDiverAmerica promotional materials.
The information provided by JoeDiverAmerica to members may be proprietary in nature.
Members acknowledge that they are not competitors of JoeDiverAmerica, and agree
not to share this information with any competitors.
Anyone found in deliberate violation of these terms and conditions is subject to
being banned from JoeDiverAmerica.
The terms of this Agreement will begin upon our acceptance of your Program application
and will end when terminated by either party. Either you or we may terminate this
Agreement at any time, with or without cause, by giving the other party written
notice of termination. You are only eligible to earn referral fees on sales occurring
during the term, and fees earned through the date of termination will remain payable
only if the related sporting goods product orders are not canceled or returned.
We may withhold your final payment for a reasonable time to ensure that the correct
amount is paid.
We may modify any of the terms and conditions contained in this Agreement, at any
time and at our sole discretion, by posting a change notice or a new agreement on
our site. Modifications may include, for example, changes in the scope of available
referral fees, fee schedules, payment procedures, and Program rules. Your continued
participation now, or within thirty (30) days following the posting notice of any
changes in these terms and conditions, will constitute a binding acceptance by you
of such rules, changes or modifications.
IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS
AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF
A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE
OF THE CHANGE.
You and we are independent contractors, and nothing in this Agreement will create
any partnership, joint venture, agency, franchise, sales representative, or employment
relationship between the parties. You will have no authority to make or accept any
offers or representations on our behalf. You will not make any statement, whether
on your site or otherwise, that reasonably would contradict anything in this Section.
We will not be liable for indirect, special, or consequential damages (or any loss
of revenue, profits, or data) arising in connection with this Agreement or the Program,
even if we have been advised of the possibility of such damages.
Further, our aggregate liability arising with respect to this Agreement and the
Program will not exceed the total referral fees paid or payable to you under to
We make no express or implied warranties or representations with respect to the
Program or any sporting goods products sold through the Program (including, without
limitation, warranties of fitness, merchantability, non-infringement, or any implied
warranties arising out of a course of performance, dealing, or trade usage). In
addition, we make no representation that the operation of our site will be uninterrupted
or error-free, and we will not be liable for the consequences of any interruptions
Further, you will indemnify and hold us harmless from all claims, damages and expenses
(including, without limitation, attorney's fees) relating to any warranties or representations
made by you with respect to the Program or any sporting goods sold through the program
or JoeDiverAmerica™ Further, you will indemnify and hold us harmless from
all claims, damages and expenses (including without limitation, attorney's fees)
relating to any warranties or representations made by you with respect to the Program
or any sporting goods sold through the program or JoeDiverAmerica. This obligation
will survive any termination of this Agreement.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND
CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT
CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT
OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE
INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE
NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH
IN THIS AGREEMENT.
This Agreement will be governed by the laws of the United States and the State of
Florida, without reference to rules governing choice of laws. Any action relating
to this Agreement must be brought in the federal or state courts located in Lee
County or the United States District Court for the Southern District of Florida,
and you irrevocably consent to the jurisdiction of such courts. You may not assign
this Agreement, by operation of law or otherwise, without our prior written consent.
Subject to that restriction, this Agreement will be binding on, insure to the benefit
of, and enforceable against the parties and their respective successors and assigns.
Our failure to enforce your strict performance of any provision of this Agreement
will not constitute a waiver of our right to subsequently enforce such provision
or any other provision of this Agreement.