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This Agreement contains the complete terms and conditions which you (the "Affiliate") agree to be bound by as a participant in JIAN’s Affiliate Program (the "Program") and which shall apply once your application to participate in the Program has been accepted by JIAN.

1.      Introduction

1.1    JIAN is the sole and exclusive owner of all right, title and interest including all intellectual property rights in and to the content, logos, style, design, look and feel, trade names, trademarks to its products and literary works such as but not limited to JIAN, Burke Franklin’s Blog, Business Black Belt, and all products offered for sale on the JIAN website (including all future versions thereof), all hereinafter referred to individually and collectively, according to context, as the "Product."
1.2    JIAN intends to sell its Products electronically and distribute electronically and via direct shipment using, in part, third party affiliates who will establish links to JIAN’s Web site where its Products will be offered for sale.
1.3    If, in the future, JIAN sells and distributes any other goods or services through the Internet, it shall, at their discretion, offer to its affiliates at that time the opportunity to become vendor-affiliates of such goods or services. Such goods or services shall be included in the defined term "Product" and this Agreement shall then also apply to such goods or services.

2.      Participation & Representation

2.1    JIAN hereby grants to the Affiliate the non-exclusive and revocable right to market and advertise the Product and to establish links to JIAN Web site, the whole in accordance with this Agreement.
2.2    The Affiliate shall diligently and continuously market and advertise the Product through the Internet and shall develop, operate and maintain links from its site to JIAN’s site at its sole cost and expense.
2.3    The Affiliate represents and warrants to JIAN that this Agreement has been duly and validly executed and constitutes and shall continue to constitute a legal obligation, enforceable in accordance with its terms.

3.      Affiliate Sales Commissions

3.1    If, as a result of a direct advertising effort of the Affiliate, a referred customer of the Affiliate orders and pays for the Product sold by JIAN in the future, JIAN shall pay the Affiliate a sales commission determined in accordance with the Affiliate Compensation Schedule which follows this Agreement and which forms an integral part of it. The commission is based upon the paid selling price of the purchased Product before tax and excluding returns ("Sales Commission").
3.2    An Affiliate can earn sales commissions on both a First-Purchase and on Subsequent-Purchases by their referred customers, the whole as described in the Affiliate Compensation Schedule. If, as a result of a direct advertising effort of the Affiliate, a referred customer of the Affiliate also joins the JIAN Affiliate program (Sub-Affiliate), JIAN shall pay the Affiliate an overriding sales commission (Override Commission) on sales referred by the Sub-Affiliate determined in accordance with the Affiliate Compensation Schedule. An Affiliate shall not, directly or indirectly, convert or attempt to convert a Subsequent-Purchase Sales Commission into a First-Purchase Sales Commission. An Affiliate shall not receive a Sales Commission for a Product purchase made, directly or indirectly (ex., via an intermediary for the purpose of collecting a commission), by him/herself. In the event that more than one Affiliate claims the same commission for a sale, JIAN shall select the Affiliate which shall receive the compensation.
3.3    The Affiliate shall be responsible for all taxes and other similar levies applicable to the Sales Commission pursuant to any law or regulation. The Affiliate shall report the Sales Commission to its taxation authorities as required by law.
3.4    JIAN shall post and maintain, on a current basis, a designated password-protected Web page for each Affiliate showing the Affiliate's participation in the Program including number of potential customers referred by it and an estimate of the Sales Commission owing to it. JIAN shall, on or about the first week of each month, mail or otherwise transmit the Sales Commission representing the amount payable for the sales completed in the previous month. (JIAN reserves the right to delay sending payment for one month, in exceptional cases up to two months, to prevent suspected cases of affiliate fraud.) Sales statistics of the referred transactions, supporting the amount paid, shall be made available on the Affiliate's password-protected Web page. Affiliates will receive the Sales Commission in US funds. Sales Commission overpayments (due to product returns, accounting error or affiliate fraud) may be deducted from future payments or shall be reimbursed by the Affiliate.
3.5    Upon written request and at the Affiliate's expense, the Affiliate may cause JIAN’s books and records to be examined by an independent firm of chartered accountants to ensure compliance with this Agreement. In the event that the examination reveals an underpayment error of more than 5%, the underpayment and the reasonable cost of the examination to a maximum of $2,500 US dollars shall be paid by JIAN. If the examination does not reveal an underpayment as aforesaid, the Affiliate shall compensate JIAN for its reasonable cost to a maximum of $2,500 US dollars. The firm of chartered accountants utilized shall limit the scope of their examination to the relevant information regarding the Sales Commission and shall keep private and confidential all information obtained in the course of the said examination.

4.      Affiliate Sites & Promotion Methods

4.1    The Affiliate shall be solely responsible for all materials that appear on its site. It shall strictly adhere to all applicable laws and regulations in conducting its business and more specifically in marketing and advertising the Product. Without restricting the generality of the foregoing, the Affiliate shall not send unsolicited e-mail and shall not send e-mail or any other communication to a recipient if the recipient has requested that it discontinue such communication, nor shall it send or display on its Web site any material that may be considered to be illegal, harassing, libelous, defamatory, legally obscene or pornographic, threatening, abusive, or hateful.
4.2    JIAN shall have the right, but not the obligation, to pre-approve the graphics and logos used on any Web site which is linked to its site. Furthermore, the Affiliate shall annotate its site with appropriate copyright, trademark and other similar notices, which shall be approved by JIAN. If the Affiliate specifies a price point for the Product in its marketing and advertising, it shall ensure that it is updated regularly to reflect all price changes.
4.3    JIAN shall have the right to monitor the Affiliate's Web site at any time and from time to time to determine if it is in compliance with the terms and conditions on this Agreement.
4.4    JIAN shall have the right, but not the obligation, to help the Affiliate promote its products more effectively and to report the Affiliate's commission status by e-mailing JIAN Affiliate E-newsletter to the Affiliate. The Affiliate hereby gives permission to the Profit Center™ to e-mail JIAN Affiliate E-newsletter and affiliate commission reports. The Affiliate may unsubscribe from JIAN Affiliate e-newsletter and Affiliate Reports at his sole option.
4.5    The Affiliate agrees not to use any predatory advertising methods designed to generate traffic from sites that they have not contracted with in the online promotion of JIAN Product or affiliate program. Predatory advertising is defined as any method that creates or overlays links or banners on web sites, spawns browser windows, or any method invented to generate traffic from a web site without that web site owner's, knowledge, permission, and participation. Examples include, but are not limited to, keyword parsing, browser plug-ins, banner replacement technology, and browser spawning technology that is not web site dependent. Participation in predatory advertising programs will be cause for an affiliate's immediate termination.

5.      Order Processing

5.1    JIAN shall establish the procedures of selling the Product including, without limitation, the placement of orders, pricing, payment terms, processing, delivery, returns etc. Without restricting the generality of the foregoing, JIAN shall have the right to cancel, suspend or delay any order for the Product, including the right to discontinue selling the Product at any time.

6.      Licenses & Goodwill Preservation

6.1    JIAN shall have the right, but not the obligation, to approve, in its sole and absolute discretion and with due regard to the protection and preservation of the goodwill of the Product any promotional, advertising or marketing item used by the Affiliate. The Affiliate shall make all deletions and modifications suggested by JIAN on any site where the Product is mentioned.
6.2    The Affiliate shall acknowledge and clearly identify and respect that all proprietary information, trademarks, copyrights and all other similar rights in and arising out of the Product are, and shall continue to be, the exclusive property of JIAN. In the event the Affiliate learns of any claim or allegation that the Product infringes upon or violates any intellectual property or proprietary rights of a third party, or contains any unlawful, libelous, or untrue statement, it shall immediately notify JIAN so as to enable JIAN to defend, settle or otherwise resolve the claim or allegation in a manner that JIAN deems appropriate in its sole discretion.
6.3    Customers who purchase the Product through the Program shall be deemed to be customers of JIAN, and the Affiliate shall refer all Product-related questions, requests or queries to JIAN. JIAN shall have the right to utilize the Affiliate's name and logo to advertise market, promote and publicize in any manner the Product.
6.4    The Affiliate shall not make or give to a customer or a potential customer any warranty, representation or other statement concerning the Product without first obtaining the written consent of JIAN.

7.      Relationship of Parties

7.1    While the parties shall work hand-in-hand for the benefit of both, the parties acknowledge and agree that the Affiliate shall, from a legal perspective, act as and shall be an independent contractor and not an employee or agent of JIAN. Nothing in this Agreement shall create a partnership, joint venture, agency, or franchise between the parties in the legal sense of these terms. The Affiliate shall not sign any document in the name of or on behalf of JIAN nor shall it hold itself out as being an agent of JIAN or as having apparent authority to contract for or bind JIAN.

8.      Limitation of Liability

8.1    In no event shall JIAN be liable for special, incidental, consequential or punitive damages, including, without limitation, any damages resulting from loss of profits, loss of business or loss of goodwill arising out of or in connection with this Agreement or the Product, whether or not such party has been advised of the possibility of such damages. JIAN shall not be liable for any damages if, for any reason whatsoever, it’s Web site fails or is non-operational for any reason whatsoever.

9.      Term of This Agreement

9.1    In the event that the Affiliate breaches any of the undertakings or obligations set forth in this Agreement and does not remedy same within 7 days notice from JIAN, it shall automatically forfeit the Sales Commission then receivable or receivable at any time in the future. JIAN shall, in addition, have the right to terminate this Agreement and shall retain all other rights and remedies available to it at law or in equity. (Any rights of Affiliate to commissions shall continue to accrue and be paid to the Affiliate for all referral links in effect as of the time of termination.)
9.2    JIAN shall have the right but not the obligation to terminate this Agreement with an Affiliate who does not maintain a valid e-mail address with JIAN (JIAN tracks all bounces of communications and after due process terminates any affiliate whose e-mail address is not valid). JIAN shall have the right but not the obligation to terminate this Agreement if the Affiliate ceases to actively market the Product for a period of 90 days. JIAN shall have the right but not the obligation to terminate this Agreement with an Affiliate who’s First-Purchase Sales Commission in a calendar year was in the bottom 20 percent of the First-Purchase Sales Commission of all Affiliates in any preceding 12 month period. In such cases, the Sales Commission owing, representing the sums earned shall be paid even after termination of this Agreement. The Affiliate shall have the right to terminate this Agreement at any time upon written notice to JIAN.
9.3    As soon as notice of termination of this Agreement is given or upon termination as herein provided, the Affiliate shall immediately cease its marketing and advertising of the Product and shall forthwith eliminate all mention and references to the Product and all links to JIAN. Pending the completion of the foregoing, JIAN may hold in abeyance the Sales Commission.

10.    Modification & Application of Agreement

10.1 JIAN may, in good faith, modify any of the terms and conditions contained in this Agreement (including the Affiliate Compensation Schedule), at any time and in its sole discretion, by posting a change notice or a new agreement on its Web site. If any modification to this Agreement is not acceptable to the Affiliate, its only recourse is to terminate this Agreement. The Affiliate's continued participation in the Program following the said posting of a change notice or new agreement shall constitute binding acceptance by the Affiliate of the change.
10.2 If any of the provisions of this Agreement are determined by a court to be unenforceable, they shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect.
10.3 The Affiliate shall not assign, transfer or convey this Agreement or any part thereof to any other party without JIAN consent which shall not be unreasonably refused.
10.4 This Agreement shall endure to the benefit of and be binding upon the parties hereto and their respective heirs, legatees, executors, legal representatives, successors and assigns.
10.5 This Agreement represents the entire agreement between the parties and supersedes all prior negotiations, agreements and understandings, if any. For greater certainty but without restricting the aforementioned, information contained in any of the following shall not form part of this Agreement, namely: descriptions of the Program (including the descriptions of Sales Commission payable to the Affiliates) on JIAN Web site(s); e-mail communications from JIAN or from any of its employees, officers or directors; in the Product, or in marketing/informational documents.

11.    Independent Investigation

11.1 The Affiliate acknowledges that it has reviewed this Agreement and agrees to all its terms and conditions. The Affiliate understands that JIAN may at any time 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 the Affiliate's Web site. The Affiliate has independently evaluated the desirability of participating in the Program and is not relying on any representation, guarantee or statement other than as set forth in this Agreement.

12.    Miscellaneous Provisions

12.1 Any reference in this Agreement to gender includes all genders and words importing the singular number only shall include the plural and vice versa.
12.2 The insertion of headings and the division of this Agreement into Articles and Sections are for convenience reference only and are not to affect its interpretation.
12.3 Each of the parties hereto covenants and agrees that it shall execute and deliver such additional agreements and documents and do such acts and things as may be reasonably necessary fully and effectually to carry out the intent and purpose of this Agreement.
12.4 Time shall be of essence of this Agreement.
12.5 All notices, requests and other communications shall be deemed to have been received when posted by JIAN on its Web site. It shall also be deemed to have been received on the next business day if transmitted by fax, e-mail or any other form of electronic mail to the last known electronic address of the intended recipient.
12.6 This Agreement shall be governed by and construed in accordance with the laws of the State of California and the United States of America and all disputes concerning this Agreement and the obligations assumed by the parties shall be resolved before such courts. The parties have required that this Agreement and related documents be drafted in English.

Affiliate Compensation Schedule

This Compensation Schedule is in effect. An Affiliate can earn sales commissions on both a First-Purchase, on Subsequent-Purchases as well as an Override Commission on sales of a Sub-Affiliate determined by their referred customers as follows:

• First-Purchase Commission                         20.0%
• Subsequent-Purchases Commission         20.0%
• Override Commission                                        5.0%

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If you have any questions or concerns, please feel free to email us at affiliates@jian.com.
You may also reach us by telephone at 1-530-892-0233.

 

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