Affiliate Agreement

Affiliate Agreement

This Affiliate Agreement ("Agreement") contains the terms and conditions between WMJ marine(DBA: WMJ company). ("WMJ marine(DBA: WMJ company)", also referred to by the words "we", "us" and "our") and you that apply to your application to participate and to any subsequent participation as an affiliate of WMJ marine(DBA: WMJ company) ("Affiliate") in WMJ marine(DBA: WMJ company)'s Affiliate program (the "Affiliate Program"). If you are accepted as an Affiliate, this Agreement will describe the terms that govern the establishment of links from your Web site that you identify in your Affiliate Application (your "Site") to WMJ marine(DBA: WMJ company)'s Web site at www.wmjmarine.com (the "WMJ marine(DBA: WMJ company) Site"). By by submitting your Affiliate Application, you are confirming that you have read this Agreement, that it is a legally binding document, and that you agree to be bound by the terms and conditions contained in this Agreement. PLEASE BE SURE TO PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.

1. How to Become an Affiliate
To begin the enrollment process for our Affiliate Program, you will need to review the terms of this Agreement and indicate your acceptance of these terms by clicking "I Agree" at the bottom of the page. (If you click the "I Disagree" button, you will not be considered for participation in the Affiliate Program.) If you agree to the terms by clicking "I Agree", you will be linked to our Affiliate Application. Once you complete and submit an Affiliate Application, we will evaluate it and notify you of your acceptance or rejection. We may reject your application if we determine, in our sole discretion, that your Site is unsuitable for our Affiliate Program for any reason, including, but not limited to, business criteria that we may establish, or your inclusion in your Site of content or links to content that we believe to be sexually explicit, discriminatory, illegal, offensive, or infringing of third party intellectual property rights.

2. The Program Generally
As an affiliate, you place our links (e.g., banners, buttons or textual links) on you web site. The Links will serve to identify your site as a member of our Affiliate Program and will establish a link from your Site to the WMJ marine(DBA: WMJ company) Site. When a visitor to your Site uses a Link to visit the WMJ marine(DBA: WMJ company) Site, and makes a purchase meeting the criteria described in the "Commissions" section of this Agreement, we will pay you commissions as described in this Agreement. We will provide your organization with a special URL that will allow you to monitor your organization's activity at our store.

3. Commission Eligibility and Calculation
You will qualify for a commission for sales by us of certain qualifying products ("Qualifying Purchases") when all of the following conditions are met:

1)	Products are purchased online within thirty days from the time a customer links to the WMJ marine(DBA: WMJ company) Site from a Link on your Site using the same computer system. In addition, for a sale to qualify, the customer must not have responded to any other marketing activity (such as clicking on a link in an email, on a banner or portal advertisement, or on a Link on another Affiliate's site) subsequent to clicking on a Link on your Site;
2)	products are shipped by us to a shipping address;
3)	products are billed to a billing address; and
4)	we have received full payment, including payment for shipping, taxes, and any other charges.

Commissions will be adjusted for product orders that are cancelled, undeliverable, returned, or where payment is otherwise refunded or recredited (including both full and partial refunds or recredits) to the purchaser ("Customer Credits"). We will adjust your account for Customer Credits on an ongoing basis, but at least monthly. If we have paid you a commission, and the Qualifying Purchase is subsequently the subject of a Customer Credit, the commission previously paid will be deducted from your account on an on-going basis but at least monthly. You will not receive a commission for any sales initiated or completed offline (for example, by telephone or in store). Our determination of whether a commission is payable is final and is binding on you.

Commission rates will be based on the aggregate amount actually paid to WMJ marine(DBA: WMJ company) for Qualifying Purchases, excluding amounts collected by us for sales or other taxes, shipping, and similar charges, amounts due to credit card fraud and bad debt, and Customer Credits ("Net Sales"). Commissions are only paid for certain qualifying products, and commission rates are based on product categories. We establish the product categories and place specific items within those categories in our sole discretion. Our current categories and commission rates for products in those categories are as follows:

The commission rate for products in all product categories is Five percent (5%) of Net Sales for Qualifying Purchases.

We do not pay commissions on purchases of WMJ marine(DBA: WMJ company) Gift Certificates

4. Commission Payment
When the total commissions due to you (based on the requirements in the previous section) meet or exceed $25, we will send you a commission check for the applicable commission amount (less any taxes required to be withheld under applicable law). At the same time, we will send a statement of activity to you. Commission checks and statements of activity will be sent approximately 30 days after the end of each month in which your account balance meets or exceeds $25. If the balance of your account is less than $25, we will carry over the balance to the next month. If, due to Customer Credits, your account with us is ever in a negative balance, you agree to pay us the balance in collected funds immediately upon demand.

5. Sales Reports
We will provide your organization with a special URL that will allow you to monitor your organization's activity at our store. The data will be updated once daily, and will reflect data up to, but not including the prior day; throughout the month, all Customer Credits will be reported and deducted from Qualifying Purchases. All information available at the link provided is our confidential information and is protected under the "Confidentiality" section of this Agreement.

6. Our Responsibilities; Pricing and Other Policies
We will be responsible for providing all information necessary to allow you to establish Links from your Site to the WMJ marine(DBA: WMJ company) Site. We will be responsible for processing each order placed by a customer following a Link from your Site to the WMJ marine(DBA: WMJ company) Site, for tracking the Net Sales for Qualifying Purchases generated by your Site, and for providing information to you regarding sales statistics. We reserve the right to reject orders that do not comply with any requirements that we may establish from time to time. We will be responsible for all aspects of order processing and fulfillment, including order entry, payment processing, shipping, cancellations, returns, and related customer service.

Customers purchasing products after linking to the WMJ marine(DBA: WMJ company) Site via the Links will be deemed to be our customers. All of our rules, policies, terms, conditions and operating procedures concerning customer orders, customer service, privacy and product sales will apply to these customers. We may change our policies, terms, conditions and operating procedures, including pricing, at any time. We solely will determine the prices to be charged for products sold in accordance with our own pricing policies. You may not include price information on your Site unless pricing information is made available on Links we provide through the Reporting. Prices and availability of products 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 product.

7. Links; Your Site and the WMJ marine(DBA: WMJ company) Site
You must comply with the terms of this Agreement and any instructions on affiliate link Site in using the Links. To permit accurate tracking and reporting, you will be responsible for ensuring that the Links are properly formatted. In using our Links, you agree that you will cooperate fully with us in establishing and maintaining such Links. In addition, we encourage (but do not require) you to include a Link on the home page of your Site. Each Link connecting users of your Site to the pertinent area of the WMJ marine(DBA: WMJ company) Site must in no way alter the look, feel or functionality of the WMJ marine(DBA: WMJ company) Site. We reserve the right to disable Links at any time without notice to you.

You further agree that your Site will not, in any way, copy or resemble the look and feel of the WMJ marine(DBA: WMJ company) Site and that you will not do anything to create the impression that your Site is (or is a part of) the WMJ marine(DBA: WMJ company) Site. Specifically, you agree that you will not frame the WMJ marine(DBA: WMJ company) Site in any manner. You also hereby agree that your Site will not contain any content of our WMJ marine(DBA: WMJ company) Site or any materials which are proprietary to us, except 1) with our prior permission or 2) the materials that are obtained via Affiliate link Site and used by you in accordance with the terms of this Agreement and any associated instructions

8. Operation of Your Site Generally
You are solely responsible for the development, operation and maintenance of your Site, and for all materials that appear on your Site. Your responsibilities include, but are not limited to (i) the technical operation of your Site and all related equipment; (ii) the accuracy, legality and propriety of materials posted on your Site, and (iii) ensuring that materials posted on your Site are not libelous or defamatory. You agree that your Site will not contain content that this sexually explicit, discriminatory, illegal, offensive, or infringing of third party intellectual property rights, and acknowledge that we may terminate this Agreement in the event your Site contains, or links to content that we believe to be sexually explicit, discriminatory, illegal, offensive, or infringing of third party intellectual property rights. In addition, you are responsible for ensuring that your Site accurately and adequately discloses through a privacy policy how you collect, use, store, and disclose data collected from visitors. You are also solely responsible for ensuring that your Site complies with all applicable intellectual property (including copyright) and other laws, and that it does not infringe or otherwise violate the intellectual property rights of any third party. You must have express permission to use another party's copyrighted or other proprietary material. We will not be responsible if you use another party's copyrighted or other proprietary material in violation of the law.

We disclaim all liability for all the matters set forth in the previous paragraph. Your obligations under this section are subject to certain indemnification obligations described in the "Indemnification" section of this Agreement.

9. Publicity; Email and Other Communications
You may not create, publish, distribute, or permit any written material, including email, that makes reference to us without first submitting such material to us and receiving our written consent.

10. Licenses and Use of WMJ marine(DBA: WMJ company) Logos and Trademarks

1)	We grant you a non-exclusive, non-transferable, revocable right to (i) access the WMJ marine(DBA: WMJ company) Site through the Links solely in accordance with the terms of this Agreement and (ii) solely in connection with such Links provided by us, to display our logos, trade names, trademarks, and similar identifying material relating to us (collectively, the "WMJ marine(DBA: WMJ company) Trademarks"), for the sole purpose of directing visitors of your Site to the WMJ marine(DBA: WMJ company) Site as provided in this Agreement. You may not modify the WMJ marine(DBA: WMJ company) Trademarks in any way. We may terminate your right to use the WMJ marine(DBA: WMJ company) Trademarks for any reason at any time in our sole and absolute discretion.
2)	You shall not make any specific use of any WMJ marine(DBA: WMJ company) Trademarks for purposes other than directing visitors to your Site to the WMJ marine(DBA: WMJ company) Site as provided in this Agreement, without first submitting a sample of such to us and obtaining our prior written consent which we may withhold in our sole and absolute discretion. You agree not to use the WMJ marine(DBA: WMJ company) Trademarks in any manner that is disparaging or that otherwise portrays us in a negative light. You shall not sublicense any of the WMJ marine(DBA: WMJ company) Trademarks. You acknowledge that we (or certain related corporations or other entities) retain all right, title and interest in the WMJ marine(DBA: WMJ company) Trademarks, and you agree that you will not at any time dispute or contest, directly or indirectly, such exclusive right and title to the WMJ marine(DBA: WMJ company) Trademarks or the validity thereof. You agree that you do not acquire any rights in the WMJ marine(DBA: WMJ company) Trademarks, and acknowledge that they are licensed AS IS without warranty of any kind. You further agree that you will comply with all federal, state and local laws and regulations in connection with your use of the WMJ marine(DBA: WMJ company) Trademarks. Your use of the WMJ marine(DBA: WMJ company) Trademarks shall include the appropriate trademark, copyright or other legal symbol or notice of our right to the WMJ marine(DBA: WMJ company) Trademarks and our interest therein. We reserve all of our rights in the WMJ marine(DBA: WMJ company) Trademarks and of our other proprietary rights. This license will terminate automatically upon the termination of this Agreement, and you will immediately discontinue all uses of the WMJ marine(DBA: WMJ company) Trademarks. Your obligations under this section are subject to certain indemnification obligations described in the "Indemnification" section of this Agreement.
3)	You grant to us a non-exclusive license to utilize your names, titles, and logos (the "Affiliate Trademarks"), to advertise, market, promote, and publicize in any manner our rights hereunder; provided, however, that we shall not be required to advertise, market, promote, or publicize our rights, your Site or your Affiliate Trademarks in any way. This license shall terminate upon the effective date of the termination of this Agreement.

11. Term of the Agreement; Termination
The term of this Agreement will begin upon our acceptance of your Affiliate Application and will end immediately when terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. If we terminate this Agreement or notify you of a breach by you, you shall be required to remove all Links within one (1) hour of receipt of notice. We also reserve the right to disable Links upon termination. You are only eligible to earn commissions on sales occurring during the term. Commissions earned through the date of termination will remain payable only to the extent that the related Qualifying Purchases are not subject to Customer Credits. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. Such final payment will be made even if the total amount of commissions is less than $25.

12. Modification
We reserve the right to modify any terms and conditions contained in this Agreement at any time. Modifications may include, but are not limited to, changes in products eligible for commissions, commission rates, commission schedules, payment procedures, and Affiliate Program rules. If any modification is unacceptable to you, your only recourse and sole remedy is to terminate this Agreement.

13. Representations and Warranties
You hereby represent and warrant to us as follows:

I.	You will use the Links only as authorized under this Agreement.
II.	This Agreement has been duly and validly accepted, executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
III.	The acceptance, execution, delivery, and your performance of this Agreement, and your consummation of the transactions contemplated hereby will not, with or without notice, lapse of time, or both, conflict or violate 1) any provision of law, rule, or regulation to which you are subject, 2) any provision of your by-laws or certificate of incorporation or other documents relating to your formation or operation as a legal entity, or 3) any agreement or other instrument applicable to you or binding upon your assets or properties.
IV.	You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant us the license to use the Affiliate Trademarks in the manner contemplated in this Agreement, and such grant does not and will not 1) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or 2) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
V.	No consent, approval, or authorization of, exemption by, or filing with any governmental authority or third party is required in connection with the execution, delivery, and performance of this Agreement or any other action taken by you.
VI.	To the best of your knowledge there is no pending threatened claim, action, or proceeding against you, or any entity controlling, controlled by or under common control with you with respect to the execution, delivery, or consummation of this Agreement, the operation of your Site or the Affiliate Trademarks. To the best of your knowledge, there is no basis for any such claim, action, or proceeding.
VII.	If you are an individual, you are an adult of at least 18 years of age, and if you are a legal entity, you are duly formed and validly existing in good standing in the jurisdiction of your formation.

14. Confidentiality
During the course of performance of this Agreement, we may disclose to you certain business, technology, research, customer and other business information, including trade secrets, which we consider to be and treat as confidential information. You agree to maintain the Confidential Information in confidence, and shall protect it with the same degree of protection that you use to protect your own Confidential Information (which shall not be less than reasonable care), shall not disclose it to any third party, and shall use it for the sole purpose of performing under this Agreement. Notwithstanding the foregoing, you may disclose such information as may be required by law or governmental regulations or authority, provided, however, that prior to disclosure of any information required by law or governmental regulations or authority, you shall give prompt notice to us to allow us an opportunity to seek to protect such Confidential Information. We may enforce your obligations under this section with an injunction or other similar relief as provided in the "Injunctive Relief" section of this Agreement. Finally, you agree that all customer information related to the Affiliate Program belongs to us.

15. Disclaimers
NEITHER WE (NOR ANY RELATED CORPORATION OR OTHER ENTITY), BE FREE NOR ANY OF OUR OTHER SUPPLIERS MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE AFFILIATE PROGRAM OR ANY PRODUCTS SOLD TO CUSTOMERS USING THE LINKS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINTERFERENCE, NON-INFRINGEMENT, ACCURACY, OR ANY WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING OR TRADE USEAGE, AND THE AFFILIATE PROGRAM AND PRODUCTS ARE PROVIDED "AS IS", WITHOUT WARRANTIES OF ANY KIND. IN ADDITION, NEITHER WE (NOR ANY RELATED CORPORATION OR OTHER ENTITY), BEFREE, NOR OUR OTHER SUPPLIERS MAKE NY REPRESENTATION THAT THE OPERATION OF THE WMJ MARINE(DBA: WMJ COMPANY) SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND NEITHER WE, (NOR ANY RELATED CORPORATION OR OTHER ENTITY), BEFREE NOR OUR OTHER SUPPLIERS WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

WE ARE NOT RESPONSIBLE, AND DISCLAIM LIABILITY FOR ANY FAILURE TO TRACK QUALIFYING PURCHASES AND PAY COMMISSIONS CAUSED BY ANY VIRUS, TROJAN HORSE, WORM OR OTHER MALICIOUS CODE, OR WHICH OCCURS THROUGH THE INTERFERENCE OF ANY THIRD PARTY.

16. Limitation of Liability
NEITHER WE (NOR ANY RELATED CORPORATION OR OTHER ENTITY), BEFREE NOR OUR OTHER SUPPLIERS WILL BE LIABLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL OR RELIANCE DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT, THE PRODUCTS OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT, THE PRODUCTS AND THE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.

17. Relationship of Parties
The parties to this Agreement are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Neither of us will have any authority to make or accept any offers or representations on behalf of the other. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this section.

18. Indemnification
You hereby agree to indemnify, defend (through counsel acceptable to us) and hold us (and any related corporation or other entity), and our other suppliers, and our and their directors, officers, employees, agents, partners, members, and other owners, harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses, or actions in respect thereof, arise out of , are connected to or are based on 1) any claim that our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, 2) any failure or breach of any representation, warranty, covenant, or agreement made by you under this Agreement, 3) your use or any misuse of our name or trademarks, including but not limited to the WMJ marine(DBA: WMJ company) Trademarks, 4) any claim related to your Site, including, without limitation, its development, maintenance or operation, or content therein not attributable to us, and 5) any violation by you or your Site of any copyright, patent, trademark, trade secret or other proprietary right of any third party.

19. Injunctive Relief
You agree and acknowledge that, because of the unique nature of the Confidential Information, the WMJ marine(DBA: WMJ company) Trademarks, the Links and any other intellectual property or customer information shared by us or used hereunder, we would suffer irreparable harm if you fail to comply with the terms of this Agreement, and money damages and other remedies at law available in the event of a breach or threatened breach of this Agreement are not, and will not be adequate to compensate for the harm caused by the breach or the threatened breach. Accordingly, we shall be entitled to such relief as a court of competent jurisdiction may deem appropriate. Such injunctive relief will be in addition to and not in lieu of any other remedy available at law or in equity.

20. Notices
All notices, consents, requests, instructions, approvals and other communications made, required or permitted hereunder (each a "Notice") shall be given in writing and delivered (i) by personal delivery, (ii) by electronic mail, (iii) by certified or registered mail (return receipt requested), or (iv) by a nationally recognized courier. If the Notice is to you, it shall be addressed to the electronic or postal address you have provided in the Affiliate Application; if the Notice is to WMJ marine(DBA: WMJ company), it shall be addressed to WMJ marine(DBA: WMJ company) 2932 zircon place, Carlsbad, ca 92009, Attention: wmjmarine Affiliate Program.