This Operating Agreement contains the complete terms and conditions that apply to you as an Affiliate in the Affiliate Program of Oompa.com, a division of Oompa Enterprises, Inc. and the establishment of links from your web site to our web site.
By submitting an application to join the Oompa Enterprises, Inc. Affiliate Program, you are confirming that you have read this Operating Agreement and agreed to be bound by its terms and conditions.
Oompa Toys- Affiliate Agreement Definitions
"We", "Our", "Us", "Merchant" - Oompa Toys. a wholly owned subsidiary of Oompa Enterprises, Inc. (collectively, "Oompa")
"You", "Your" - the business, individual or entity applying for participation in the Oompa' Affiliate Program.
"Affiliate(s)" - the business, individual or entity that displays the Merchant's products, services and/or promotions on its internet site in exchange for receiving remuneration from the Merchant for sales resulting from such display.
"Affiliate Site" - the Affiliate's internet site which displays the Merchants products, services and/or promotions.
"Net Sales" - total dollars paid to Oompa for qualifying merchandise minus any tax, shipping, handling, and similar charges, amounts due to credit card fraud and bad debt, and credits for returned goods.
"Oompa Products" - any product that is available for purchase through Oompa.com excluding Downloadable Software, Business Services, and Auctions.
Requirements:
1. Enrollment in the Affiliate Network
To begin the enrollment process, you must submit a completed Affiliate Program Application. The Application can be found by logging on to www.Oompa.com. We will evaluate your application in good faith and will notify you of your acceptance or rejection in a timely manner. 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, inclusion of content that is, in our opinion, unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable. If we reject your application, you are welcome to reapply to the Oompa Affiliate Program at any time.
2. Promotion of Our Affiliate Relationship
If you qualify and agree to participate as an Affiliate Site, we will make available to you a variety of graphic and textual links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions hereof, you shall display prominently throughout your site as you see fit and with our consent. The Links will serve to identify your site as a member of the Oompa Affiliate Program and will establish a link from your site to ours. The Links may connect to any area of our site.
In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. You also agree that you will display on your site only those graphic or textual images (indicating a Link) provided by us, and you will substitute such images with any new images provided by us from time to time throughout the term of this Agreement. All Affiliate Sites shall display such graphic and/or textual images prominently in relevant sections of their site. Any information with respect to us that is going to be displayed on your site must be provided by us or approved by us in writing in advance of any display. Affiliates are not permitted to establish any Links to us in any community, forum, chat room or electronic bulletin board. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. You are not allowed to post any coupon information unless we have given you written permission and then may only be posted in accordance with this agreement. Each Link connecting users of your site to the pertinent area of our site will in no way alter the look, feel, or functionality of our site. In addition, we encourage (but do not require) you to include a Link to the home page of our site. We are not responsible for missing or lost revenue/sales in the case where the Affiliate alters the Link in any way. Promotions of Oompa.com-s product offers can only be promoted in the exact manner promoted by Oompa, which includes the posting of expiration dates, availability of the offer and any related legal disclaimers. Affiliates may establish a Link only on URL-s which have been approved by Oompa.com in the application process.
3. Exclusive Specialty Toy Supplier
Oompa.com shall be the exclusive Specialty Toy Supplier on your site. You agree that you will not (directly or indirectly) allow any other person or entity whose business is the sale of specialty toys to sell toys on your site or link their site to yours in connection with the sale of toys. For purposes of this agreement, toys - shall include (but not be limited to) rattles, teethers, blocks, stuffed animals, dolls, push toys, pull toys, play cars, trains, trucks, tricycles, books, games, play food, play kitchens, learning toys, balls, jump ropes and puzzles or toys from Bartl, Bajo, Bamboo Collection, Balbla, Chelona, Crocodile Creek, DeNoest, Djeco, Furnis Spielwelt, Haba, Happy Horse, Hess, Holztiger, Jellycat, Kaloo, Kathe Kruse, keptin, Kettler, Lana Organic, Latitude Enfant, Noukies, Plan Toys, Selecta, Spielstabil, Svan, Tatiri, The Toy Workshop, Togu, Vilac, or Woody Click.
4. Commissions
a. Commission rates will be paid to Affiliates based on the sales acquired through the Affiliate Site. Sales generated through the Affiliate link entitle the Affiliate to earn a cash commission of 5% on Monthly Sales
*See Paragraph 5 for restrictions.
Commission Determination
Only Oompa Products that are (i) sold by us, (ii) purchased by Customers linking to our site from your site pursuant to a Link, (iii) shipped and/or supplied by us, and (iv) fully paid for will qualify for a commission (each, a "Qualifying Purchase"). If a product or service that generated a commission is returned, we will deduct the corresponding amount from your next monthly payment. If there is no subsequent payment, we will bill you for the amount of the commission erroneously paid.
Commission rates will be based on the amount actually paid to us for Net Sales of qualifying purchases.
5. Commission Payment
When the total commissions due to you (based on Section 4 above) exceed twenty-five dollars ($25), we will send a commission check for the applicable commission (less any taxes required to be withheld under applicable law). Subject to paragraph 12, such commission checks and statements of activity will be sent approximately thirty (30) days after the end of each month. If, at the end of one year no commission payments have been made, Oompa will pay you the commission that has been earned and those commissions earned will be considered paid in full. THE MAXIMUM AMOUNT AN AFFIILIATE MAY EARN IN A GIVEN YEAR IS $200,000.
6. Reports of Sales
You will be given a password and have the ability to enter a password-protected site to receive your sales statistics on a daily basis.
7. Obligations Regarding your Site
a. You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. Such responsibilities include, but are not limited to, the technical operation of your site and all related equipment; creating and posting product reviews, descriptions, and references on your site and linking those descriptions to our catalogue; the accuracy and propriety of materials posted on your site (including, but not limited to, all Oompa Product and Services-related materials); ensuring that materials posted on your site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability and responsibility for such matters.
b. We have the right in our sole discretion to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement. If you are not in compliance we may terminate this Agreement immediately.
8. Oompa.com Responsibilities
We will be responsible for providing all information necessary to allow you to make appropriate Links from your site to our site. We will be solely responsible for processing every order placed by a customer following a special Link from your site, for tracking the volume and amount of sales generated by your site, and for providing information to Affiliate Sites regarding sales statistics. We will be responsible for order entry, payment processing, shipping, cancellations, returns, and related customer service. Any determination made by Oompa regarding the foregoing shall be binding absent manifest error.
9. Policies and Pricing
Customers who buy Oompa Products through the Affiliate Network will be deemed to be our customers. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and Oompa Product and Services 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 Oompa Products sold under the Affiliate Network in accordance with our own pricing policies. Prices and availability of Oompa Products may vary from time to time and region to region. Because price changes may affect products that you have listed on your site, you may or may not be able to include price information in your product descriptions. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
10. Emails and Publicity
You shall not create, publish, distribute, permit, or transmit any written material or electronic communications that makes reference to us without first submitting such material to us and receiving our written consent, which shall not be unreasonably withheld.
11. Licenses and Use of the Oompa.com Logos and Trademarks
a. WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS, TO USE THE OOMPA.COM TRADEMARK AND LOGO AND SIMILAR IDENTIFYING MATERIAL RELATING TO US (BUT ONLY IN THE FORM(S) THAT THEY ARE PROVIDED BY US) (COLLECTIVELY, THE "LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF SELLING OOMPA PRODUCTS ON YOUR SITE FOR OOMPA.COM. YOU MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS TO THE EXTENT THAT YOU ARE A MEMBER IN GOOD STANDING OF THE OOMPA AFFILIATE PROGRAM.
b. You shall not make any specific use of any Licensed Materials for purposes other than selling Oompa Products, without first submitting a sample to us and obtaining the prior written consent of your Oompa.com account executive, which consent shall not be unreasonably withheld. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light. We reserve all of our rights in the Licensed Materials and of our other proprietary rights. We may revoke your license at any time, by giving you written notice. If not revoked, this license shall terminate upon expiration or termination of this Agreement.
c. You grant to us a non-exclusive license to utilize your names, titles, and logos, as the same may be amended from time to time (the "Affiliate Trademarks"), to advertise, market, promote, and publicize in any manner our rights hereunder; provided, however, that we shall not be required to so advertise, market, promote, or publicize the Affiliate Trademarks. This license shall terminate upon the expiration or termination of this Agreement.
12. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your Affiliate 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 commission on sales occurring during the term, and commissions earned through the date of termination will remain payable only if the related Oompa Products orders are not cancelled or returned. We may withhold your final payment for a reasonable time to ensure that no overpayment is made.
13. Modification
We may modify any of the terms and conditions contained in this Agreement at any time in our sole discretion. You will be notified by email and a change notice will be posted on our site. Modifications may include, but are not limited to, changes in the scope of available commissions, commission schedules, payment procedures, and Affiliate Program rules. If any modification is unacceptable to you, your only recourse is to terminate this agreement. Your continued participation in the Affiliate Program following our posting of a change notice or new agreement on our site will constitute binding acceptance of the change.
14. Disclaimers
We make no express or implied warranties or representations with respect to the Affiliate Program or any Oompa Products sold through the Affiliate Program (including, without limitation, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF 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 or errors.
15. Relationship of Parties
You and Oompa 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 in contradiction of anything in this Section.
16. Representations and Warranties
You hereby represent and warrant to us as follows:
a. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
b. The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
c. You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use your trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
d. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.
e. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any Affiliate of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
f. During the term of the Agreement, you will not include in your site content that is, in our opinion, unlawful, harmful, threatening, defamatory, obscene, harassing, racially, ethically, or otherwise objectionable.
g. You are at least eighteen (18) years of age.
h. Your Affiliate site is operated within the confines of the United States of America.
17. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT 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 AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
18. Indemnification
You hereby agree to indemnify and hold harmless us and our subsidiaries and Affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, 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 or are based on (i) 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, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, development, operation, maintenance and content therein not attributable to us.
19. Confidentiality
Each of the parties 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, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party not having any obligation of confidentiality to the discloser hereunder. Notwithstanding the foregoing, each party is hereby authorized to deliver the copy of any such information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
20. Independent Investigation
YOUR APPLICATION SUBMISSION ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER RELATIONSHIPS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT. WE MAY ALSO SOLICIT CUSTOMER RELATIONSHIPS WITH ENTITIES THAT OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE OOMPA AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
21. Domain Names
Affiliate Partner Site(s) domain name(s) cannot and will not contain the Oompa Toys Marks or any misspellings or variations of those Marks. These names
include but are not limited to: OompaToys and Oompa.com. Oompa Toys, the company that owns and operates Oompa.com will terminate the program membership
if this Policy is violated.
22. Pay-for-Placement Advertising
Affiliate Partner Site(s) will not buy or bid on any of Oompa Toys trademarked company names or brand names on any pay-for-placement search engine. No Affiliate
Partner may site represent themselves as being Oompa Toys or an agent of Oompa Toys in any way.
23. Non-Exploit
Affiliate Partner Site(s) agrees not to exploit any Oompa Toys markes to influence the affiliate partner sites ranking in search results on any
search engine.
24. Coupons, Discounts, Sales
Affiliate Partner Site(s) will not post any coupons, coupon codes, sales or discount offers unless they are provided specifically for Affiliate Partner
Site(s) through Oompa.com
25. Governing Law
This Agreement will be governed by the laws of the United States and the State of California, 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 Massachusetts 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, inure to the benefit of, and be 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 a provision or any other provision of this Agreement.
Earn money with the Oompa.com Affiliate program. Apply to become a partner today!
WE HOPE THIS HELPS!
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