AFFILIATE PROGRAM AGREEMENT
PLEASE READ THE ENTIRE AGREEMENT.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND BODY DESIGN FORMULA AKA DRFITNESSUSA.COM
In consideration of the terms and covenants of this agreement, and other valuable consideration, the parties agree as follows:
BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in DrFItnessUSA.com Affiliate Program. The purpose of this Agreement is to allow HTML linking between your web site and DrFItnessUSA.com web site. Please note that throughout this Agreement, “we,” “us,” and “our” refer to DrFItnessUSA.com, and “you,” “your,” and “yours” refer to the affiliate.
- Affiliate Obligations
2.1. To begin the enrollment process, you will complete and submit the online application at the DrFitnessUSA.com server. The fact that we auto-approve applications does not imply that we may not re-evaluate your application at a later time. We may reject your application at our sole discretion. We may cancel your application if we determine that your site is unsuitable for our Program, including but not limited to, if it:
2.1.1. Promotes sexually explicit materials
2.1.2. Promotes violence
2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
2.1.4. Promotes illegal activities
2.1.5. Incorporates any materials, which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
2.1.6. Includes “Dr. Fitness USA” or variations or misspellings thereof in its domain name
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
2.1.8. Contains software downloads that potentially enable diversions of commission from other affiliates in our program.
2.1.9. You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are DrFitnessUSA.com or any other affiliated business.
2.2. As a member of DrFitnessUSA.com Affiliate Program, you will have access to Affiliate Account Manager. Here you will be able to review our Program’s details, download HTML code (that provides for links to web pages within the DrFItnessUSA.com web site) and banner creatives, browse and get tracking codes for our coupons and deals. In order for us to accurately keep track of all guest visits from your site to ours, you must use the HTML code that we provide for each banner, text link, or other affiliate link we provide you with.
2.3. DrFitnessUSA.com reserves the right, at any time, to review your placement and approve the use of Your Links and require that you change the placement or use to comply with the guidelines provided to you.
2.4. The maintenance and the updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
2.5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person’s copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third party rights.
- DrFitnessUSA.com Rights and Obligations
3.1. We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made, or to make sure that your links to our web site are appropriate and to notify you of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the DrFitnessUSA.com Affiliate Program.
3.2. DrFitnessUSA.com reserves the right to terminate this Agreement and your participation in the DrFitnessUSA.com Affiliate Program immediately and without notice to you should you commit fraud in your use of the DrFitnessUSA.com Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, DrFitnessUSA.com shall not be liable to you for any commissions for such fraudulent sales.
3.3. This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated hereunder.
Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email or fax. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you.
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and DrFitnessUSA.com Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in DrFitnessUSA’s Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
- Access to Affiliate Account Interface
You will create a password so that you may enter DrFitnessUSA’s secure affiliate account interface. From there you will be able to receive your reports that will describe our calculation of the commissions due to you.
- Promotion Restrictions
7.1. You are free to promote your own web sites, but naturally any promotion that mentions DrFitnessUSA.com could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by DrFitnessUSA.com. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote DrFitnessUSA.com so long as the recipient is already a customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote DrFitnessUSA.com so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your web sites as independent from DrFitnessUSA.com. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the DrFitnessUSA.com Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
7.2. Affiliates that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as DrFitnessUSA.com, www.DrFitness, DrFitnesUSA.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to re-directing it to ours, will be considered trademark violators, and will be banned from DrFitnessUSA.com Affiliate Program. We will do everything possible to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior.
7.3. Affiliates are not prohibited from keying in prospect’s information into the lead form as long as the prospects’ information is real and true, and these are valid leads (i.e. sincerely interested in DrFitnessUSA.com’s service).
7.4. Affiliate shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited DrFitnessUSA’s site (i.e., no page from our site or any DrFitnessUSA.com’s content or branding is visible on the end-user’s screen). As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of DrFitnessUSA.com site in IFrames, hidden links and automatic pop ups that open DrFitnessUSA.com’s site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
- Grant of Licenses
8.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of DrFitnessUSA.com’s Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of DrFitnessUSA.com and the good will associated therewith will inure to the sole benefit of DrFitnessUSA.com.
8.2 The Affiliate will only use such items in the form, size, content, and appearance that DrFitnessUSA.com provided them to the Affiliate. The Affiliate is not permitted to modify them. These items may only be used in if they contain a hypertext link to the DrFitnessUSA’s web site. This license shall immediately terminate upon the termination from the Affiliate Program. DrFitnessUSA.com may also terminate this license upon notice to the Affiliate in the event that the Affiliate use of these items is contrary to or does not conform to its standards, such standards to be determined in its sole and absolute discretion. The Affiliate agrees that DrFitnessUSA.com retains all right, title and interest in and to all such materials. DrFitnessUSA.com will retain all goodwill and other value associated with any of these materials. The Affiliate will not gain any trademark, copyright or other proprietary rights to such materials. The Affiliate agrees not to take any action that is contrary to or inconsistent with DrFitnessUSA.com’s rights to these materials. The Affiliate will not use these materials in any way that is damaging, defamatory, disparaging, derogatory, or negative to DrFitnessUSA.com or that paints DrFitnessUSA.com in a false or negative light. DrFitnessUSA.com may revoke the limited license granted hereunder at any time in writing to the Affiliate. Upon termination or revocation, the Affiliate will immediately cease from any use this material.
8.3. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
DRFITNESSUSA.COM MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING DRFITNESSUSA.COM SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF DRFITNESSUSA.COM ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. 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.
- Representations and Warranties
You represent and warrant that:
11.1. 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;
11.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
11.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
- Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL DRFITNESSUSA.COM CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
You hereby agree to indemnify and hold harmless DrFitnessUSA.com, and its 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, content therein not attributable to us.
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
- Customer service
DrFitnessUSA.com will be responsible for handling all customer inquiries, product orders, customer billing and collection, product shipment relative to customers that enter the DrFitnessUSA’s site through the links from the Affiliate’s site. Pricing of the DrFitnessUSA’s products and services is totally within its discretion and DrFitnessUSA reserves the right to change the pricing structure, terminate any special offers, discontinue products or services, or change the terms under which products or services are offered at any time, without any advanced notice to the Affiliate or users accessing DrFitnessUSA’s site.
16.1. Commissions will be paid to the Affiliate based upon a percentage of sales made to users who access the DrFitnessUSA’s site through the Affiliate site. Commissions will be calculated based upon the gross sales price, but not including any shipping and handling, sales tax, special service fees such as gift wrapping or packaging, late charges, collection costs, imports/export duties, and any other payment made to DrFitnessUSA.com that is not the purchase price for the product that is purchased. Commissions will not be calculated based upon amounts that are attributable to credit card fraud, credits given to customers, bad debt right-off and returned goods. DrFitnessUSA.com reserve the right to deduct in subsequent months for any commission that DrFitnessUSA.com paid that is for a product that is subsequently returned or refunded, or for any other reason if the previous monthly commission was overpaid or later subject to reduction.
16.2. The percentages to be paid as commissions hereunder are currently set at 20% of the gross sale amount. DrFitnessUSA.com reserves the right to change and amend the commission rate structure at any time, and at DrFitnessUSA’s sole discretion.
16.3. Commissions will only be paid on sales that are tracked through DrFitnessUSA.com online tracking system and indicate the Affiliate web site’s link as the source. There is no right to commissions if a user later returns to DrFitnessUSA.com site and makes a purchase through another link or source other than through the Affiliate web site. In the event an amount of commissions that the Affiliate were paid was too high, as a result of subsequent returns or any other adjustment or reason, the differential shall be a debt from the Affiliate to DrFItnessUSA.com and DrFitnessUSA.com shall have all legal right to receive a refund of such overpaid commission from the Affiliate.
16.4. DrFitnessUSA.com will pay commission only upon collection. The Affiliate has no right to commissions until the applicable customer has paid DrFitnessUSA.com in full. Only purchases that are made through DrFitnessUSA.com online ordering process will count towards commission calculations.
16.5. Commissions will be paid to the Affiliate on a monthly basis in the first week of the subsequent month for amounts received by DrFitnessUSA.com during the previous month. DrFitnessUSA.com does not guarantee an exact date of calculation of commissions or payments.
17.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and DrFitnessUSA.com. 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 any other of Your Site or otherwise, that reasonably would contradict anything in this Section.
17.2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party.
17.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws and principles thereof.
17.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
17.5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
17.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
17.7. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.
17.7 Notices to DrFitnessUSA.com shall be sent by certified mail, return receipt requested addressed to the address contained in this Agreement
17.8 DrFitnessUSA.com makes no representations and warranties regarding potential income that may result from participation in this Affiliate Program and specifically disclaims any and all warranties relative to earning potential from the Recipient affiliate status.
Body Design Formula
Dr Fitness USA
PO Box 1031
Venice, CA 90294