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Legal terms you need to know
Affiliate Program Agreement
This Affiliate Agreement (“Agreement”), by and between BeyondSupplements, LLC dba MO Marketplace (“Company” or “MO”), and you (“Affiliate” or “you(r)”), sets forth the terms and conditions that govern your participation in the marketing of Products (as defined below) by and through the affiliate program owned and operated by the affiliate network through which you are participating (“Affiliate Program”). You agree to the terms and conditions set forth in this Agreement, in their entirety, when you attempt to market the Products by and through the Affiliate Program
- Affiliate Program.
- This Agreement is effective as of the date that: (a) Affiliate submits an application to the applicable Affiliate Program to market the Products by and through that Affiliate Program; (b) that Affiliate Program approves such application; and (c) Affiliate hits the “submit” button at the bottom of this Agreement or takes such other action designated by Company for Affiliate to indicate assent to this Agreement (the “Effective Date”). Notwithstanding the foregoing, Company may terminate Affiliate’s right to market the Products at any time and for any reason, in Company’s sole and absolute discretion.
- As of the Effective Date, Company grants to Affiliate a non-exclusive, non-transferable, revocable, and limited license to market certain products and/or services (“Products”) solely and exclusively in accordance with this Agreement.
- Affiliate is solely responsible for the development, operation and maintenance of the websites owned, operated and/or controlled by Affiliate (collectively, “Affiliate Websites”), as well as any and all materials and content that appear on the Affiliate Websites, other than the Creative and Disclaimer, as those terms are defined below.
- You hereby represent and warrant that you are 18 years of age or older, and that you are otherwise legally qualified to enter into and form contracts under applicable law. Any individual executing this Agreement on behalf of a company further represents and warrants that they are authorized to act and enter into contract on behalf of that company.
- Affiliate Link/Creative/Disclaimer.
- Affiliate Link. Company will provide you with a copy, in electronic form, of a clickable hypertext link through which a user of a web page containing such link may purchase Products (the “Affiliate Link”).
- Affiliate Store. Company will provide all Affiliates with an Affiliate Store. You will be able to blog from your Affiliate Store and can insert your Affiliate Link in your Affiliate Store.
- Creative. Affiliates are responsible for creating their own advertisements, banners and text links consisting of textual material and/or graphic images relating to the Products (the “Creative”) which, subject to the terms of this Agreement, Affiliate may display on its Affiliate Websites and in e-mail messages (“Affiliate E-mails”) delivered to individuals in databases of e-mail addresses owned, operated or controlled by Affiliate (collectively, “Affiliate Databases”).
- Affiliate Creative may not include Company IP or use its Creative or Affiliate E-mails to directly compete with Company. Additionally, Affiliate may not register any domain name that incorporates Company IP.
- Company may request that Affiliate change or revise the Creative at any time and Affiliate. Company may terminate the Agreement if, in its sole discretion, Company believes that Affiliate’s Creative violates Section 2.4.
- Notwithstanding the foregoing, Affiliate must comply, immediately, with any and all requests by Company to modify, alter or otherwise change the positioning, placement, frequency and/or other editorial decisions related to Creative. Affiliate must immediately remove Creative upon receiving notice from Company or upon the termination or expiration of this Agreement.
- Company reserves the right to monitor the Affiliate Websites and Affiliate E-mails at any time to determine if Affiliate is in compliance with the terms of this Agreement.
- Affiliate agrees to post and maintain, at all times, on the home page of the Affiliate Websites, Affiliate Store, and in all Affiliate E-mails, in prominent font size and type, the disclaimer provided by Company and/or the Affiliate Program for use in connection with marketing the Products, as Company may amend same from time to time (“Disclaimer”).
- Additional Agreements.
- Restrictions on Marketing.
- Affiliate shall not use any “incentivized marketing,” create the appearance of incentivized marketing, establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points, or other compensation to be earned in connection with marketing the Products, or otherwise attempt to induce Internet users to complete orders for the Products through use of any other incentives, without obtaining the prior written approval of Company.
- Affiliate may not, nor knowingly permit any person to, inflate the amount of orders for Products (“Orders”) submitted through use of any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, Iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person submitting an Order.
- Purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name of Company, or any derivative of any such trademark, service mark or brand name is prohibited and shall be grounds for immediate termination of this Agreement, in addition to any and all remedies otherwise available to Company.
- Affiliate may not target children under the age of eighteen (18) years old.
- Affiliate may not load onto an end-user’s computer programs commonly referred to as adware or spyware, without obtaining Company’s prior written approval and the applicable end-user’s express consent after receiving clear and conspicuous notice about the nature of the application to be downloaded
- Affiliate shall comply with any and all additional marketing restrictions published or made available to Affiliate from time to time (“Marketing Restrictions”). Company’s Marketing Restrictions are incorporated herein by reference.
- E-mail Marketing Requirements. If Affiliate uses Affiliate E-mail to market the Products, Affiliate must do the following:
- Company’s E-mail Marketing Requirements (the “Requirements”), as set forth in this Section 5, state the minimum standards that Affiliate must adhere to in light of current laws, rules and regulations governing the transmission of e-mail and the best practices in the industry. In the event that any state or federal law, rule or regulation governing e-mail communications is enacted or amended after the Effective Date setting forth standards more restrictive than those set forth herein, the more restrictive standards contained in such subsequently enacted or amended law, rule or regulation shall apply to Affiliate. Affiliate shall: (a) make adequate disclosures as required by law to those end-users in the Affiliate Database regarding its e-mail, privacy and security policies; (b) respond to all complaints within three (3) business day after Affiliate becomes aware of the complaint; (c) provide Company with a copy of every complaint, immediately, upon Affiliate’s receipt thereof; (d) implement any corrective action that Company may require; and (e) comply with any and all legal and/or other requirements that Company may reasonably specify. Affiliate is solely responsible for any and all consumer complaints associated with the e-mail campaigns that it conducts.
- With respect to any suppression list generated by Affiliate through the marketing of the Products, or provided to Affiliate by Company or the applicable Affiliate Program (collectively, the “Suppression List”), Affiliate shall: (a) use such Suppression List, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of this Agreement; (b) regularly use such Suppression List to remove any and all e-mail addresses contained therein from the receipt of future commercial e-mail messages; (c) not retain a copy of any Suppression List following termination of this Agreement; (d) not use any Suppression List for purposes of e-mail appending in any manner whatsoever; (e) hold any Suppression List in trust and confidence; and (f) not disclose any Suppression List to any employee, consultant, subcontractor or third party individual, corporation or entity without first ensuring said party’s written agreement to be bound by the terms of this Agreement with respect to such Suppression List. Affiliate further agrees and acknowledges that: (i) it has downloaded and removed the domains located on the Federal Communications Commissions (“FCC”) wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used in mailings hereunder; and (ii) any and all new data that it acquires, regardless of its source, will be scrubbed against the FCC’s wireless domain names list and that the domain names contained therein will be removed before sending any mailings hereunder.
- Affiliate represents and warrants that all e-mail addresses in the Affiliate Database were compiled, maintained and will be utilized: (a) in accordance with all local, state and federal laws, statutes and regulations; and (b) with the applicable end-users’ “Affirmative Consent,” as defined in the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), and that all recipients have in fact opted-in to the Affiliate Database.
- Affiliate must, upon the request of Company, be able to supply the name, date, time, and IP address where the consumer signed-up and/or gave Affirmative Consent to Affiliate.
Affiliate shall be paid a commission for generating orders of Products by and through the applicable Affiliate Program, pursuant to the agreement between Affiliate and that Affiliate Program. Company shall have no obligation to compensate Affiliate and shall not be liable for any dispute regarding commissions due Affiliate or any other matter by and between Affiliate and the application Affiliate Program. Company may require you to furnish taxpayer identification information in connection with your receipt of any commissions under this Agreement. You will be responsible for paying any and all taxes relating to all such commissions.
Without limiting any other provision of this Agreement, Company makes no representations and warranties regarding potential income that may result from your participation in the Affiliate Program, and we specifically disclaim any and all warranties, whether express, implied, statutory or otherwise with respect to the same.
- Tracking and Disputes.
Company shall be exclusively responsible for tracking all Commissions due to Affiliate. In the event that Affiliate reasonably believes Company’s tracking for a given calendar month is inaccurate, no later than seven (7) days after the close of such month, Affiliate shall provide Company with all evidence supporting the alleged error, and the parties shall work together in good faith to resolve the matter to their mutual satisfaction. In the event the Parties are unable to agree, then Company’s decision shall govern.
- Tracking and Disputes.
- Proprietary Rights.
Company’s logos, trade names, trademarks and similar identifying material (collectively “Company Marks”), are the sole property of Company. Affiliate agrees not to use the Company Marks in any manner that is disparaging or that otherwise portrays Company in a negative light. Affiliate will not now or in the future assert any claim to any goodwill, reputation or ownership of the Company Marks or any other intellectual property belonging to Company. Except for any limited licenses that may be granted herein, each party owns all right, title and interest in and to each party’s respective intellectual property, and each party may only use the other party’s intellectual property pursuant only to any limited license expressly granted in this Agreement.
- Representations and Warranties. Affiliate hereby represents and warrants that:
- it has the right and full power and authority to enter into this Agreement;
- at all times, Affiliate will comply with the Marketing Restrictions, all applicable state, federal and local laws, rules, ordinances, and Federal Trade Commission enabling regulations (including, without limitation, CAN-SPAM), and laws of foreign jurisdictions, with respect to e-mail marketing, consumer protection, privacy, false or deceptive advertising or misrepresentation, fraud and rights of privacy;
- the execution of this Agreement by Affiliate shall not breach, conflict with, or constitute a default under, any agreement or other instrument applicable to Affiliate or binding upon Affiliate;
- all data, images, graphics, design and content, including subject lines, products and/or services linked to any advertisements it provides and the materials posted on the Affiliate Websites (other than the Creative and Disclaimer): (a) do not violate or infringe upon the rights of any third party, including, but not limited to, copyrights, trademarks, privacy, or other personal or proprietary rights; (b) are not libelous, illegal, abusive, discriminatory, obscene, pornographic, fraudulent, deceptive, misleading or otherwise offensive; and (c) are accurate, do not contain any fraudulent or deceptive materials, and do not falsely represent the product, service or message being communicated; and
- when performing e-mail marketing of Products, Affiliate will:
- deliver Affiliate E-mail only to those recipients: (a) who have given Affiliate direct and/or explicit consent to receive e-mail advertising from Affiliate, as defined under applicable law, and have not revoked such consent as of the date that the commercial e-mail was transmitted to such recipient; or (b) with whom Affiliate have a preexisting business relationship, as defined under applicable law, and have not unsubscribed to receive e-mail advertising as of the date that the commercial e-mail was transmitted to such recipient;
- not falsify e-mail header and transmission information (including, without limitation, source, destination and routing information);
- not use any subject or from line that is materially false or misleading;
- not use brand names and/or trademarks of another party in the subject or from lines or body of any commercial e-mail transmission;
- not seek or obtain unauthorized access to computers for the purpose of sending any commercial e-mail; and
- include within all Affiliate E-mail: (a) Affiliate’s correct point-of-origin e-mail address, transmission information and routing information; (b) clear, prominent opt-out instructions in the e-mail and in the first line of the text, if required by applicable law; (c) a toll-free telephone number or valid e-mail address at which recipient may contact Affiliate to file complaints and/or opt-out; (d) a functioning unsubscribe link which, when activated by an end-user, actually and permanently removes the end-user’s e-mail address from the Affiliate Database; (e) accurate information regarding the manner in which the recipient opted-in to receive the e-mail; and (f) the identifier and any disclaimers that Company assigned to the e-mail.
- Without limiting any other provision of this Agreement, Affiliate must promote Products in a manner that does not mislead end users, and in a manner that ensures bona fide transactions between end users and Company. You shall not promote, facilitate or otherwise initiate transactions that are not in good faith, including without limitation by means of any misleading device or technology. Company shall have no obligation to compensate you for transactions involving you or an end user acting as your agent, for non-bona fide transactions, including without limitation multiple transactions initiated by the same individual, entity or IP address.
COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE PROGRAM, THE AFFILIATE LINKS OR ANY OTHER RIGHTS GRANTED OR INFORMATION EXCHANGED HEREUNDER. YOU UNDERSTAND THAT THE OPERATION OF THE WEBSITE OR SERVICE MAY NOT BE UNINTERRUPTED OR ERROR FREE.
- Limitation of Liability.
IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF DATA, ARISING IN CONNECTION WITH THIS AGREEMENT, AFFILIATE CREATIVE, DISCLAIMER, SUPPRESSION LISTS, PRODUCTS AND ANY OTHER PRODUCTS AND/OR SERVICES SOLD BY COMPANY OR FROM ANY OTHER OBLIGATION RELATING TO THIS AGREEMENT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT WILL NOT EXCEED TWO HUNDRED DOLLARS ($200.00). THE PROVISIONS OF THIS SECTION WILL SURVIVE TERMINATION OF THE AGREEMENT.
- Term and Termination.
The term of this Agreement begins upon Company’s acceptance of your application for the Affiliate Program and ends when terminated by you or Company. Either you or Company may terminate this Agreement at any time, for any reason or no reason, by giving the other party written notice of termination in accordance with this Agreement. Immediately upon termination (whether by you or Company), You must remove the Affiliate Link from your Affiliate Website and must destroy or erase from computer memory all copies of the Affiliate Link. Company will pay you any commissions you earned before termination. In the event that Company terminates this Agreement for cause, however, Company shall have no obligation to pay you any commissions that were unpaid as of the date of termination. The provisions of Section 3, 7.3, 8, 11-17 will survive any termination or expiration of the Agreement.
YOU UNDERSTAND THAT COMPANY, MAY, IN ITS SOLE DISCRETION, WITHOUT PRIOR NOTICE, TERMINATE YOUR ACCOUNT IN ITS ENTIRETY FOR ANY BREACH OR SUSPECTED BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR ANY APPLICABLE LAW OR REGULATION, AND SUCH TERMINATION WILL RESULT IN THE FORFEITURE OF ANY AND ALL UNPAID COMMISSIONS.
YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY COMPANY AND ITS RESPECTIVE OWNERS, AGENTS, OFFICERS AND EMPLOYEES FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES WHICH MAY ARISE OUT OF THE TERMINATION OF ACCOUNT.
- Indemnification. Affiliate will indemnify, defend, and hold harmless Company and its officers, directors, employees, and agents (the “Indemnified Parties”) from any claim, demand or other legal process or proceeding, including without limitation as to legal costs and fees, arising from or alleging facts that, if true, would constitute breach of this Agreement or any of the representations and warranties contained herein. The Indemnified Parties have the right but not the obligation, to participate through counsel of their choice in any defense by you required by this Section 13. You may not settle any claim against any Indemnified Party without their prior written consent.
- Relationship of the Parties. Each of the parties hereto is an independent contractor. Nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties, and neither party shall have the power to obligate or bind the other party in any manner whatsoever.
- General Terms and Conditions.
- Governing Law. This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of Massachusetts, without reference to its conflict of laws rules or principles.
- Venue. This Agreement is performable in Boston, Massachusetts. Any action brought to enforce or interpret this Agreement, or resulting from a breach of this Agreement, shall be brought only in the state or federal courts of Boston, Massachusetts, and the parties waive any rights that they might have for venue to lie elsewhere.
- Assignment. This Agreement, and all rights granted hereunder, is not transferable or assignable by Affiliate without the prior written consent of Company. Company may assign this Agreement, and any and all rights granted hereunder, in its sole discretion, without Affiliate’s consent. Subject to the foregoing, this Agreement shall inure to the benefit of, and shall be binding on, the parties and their respective successors and permitted assigns.
- Attorney’s Fees. In the event that any action is brought to enforce any provision of this Agreement or to declare a breach of this Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby.
- Severability and Reformation. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
- Waiver. A waiver of any default, breach or non-compliance under this Agreement is not effective unless in writing and signed by the party to be bound by the waiver. No waiver shall be inferred from or implied by any failure to act or delay in acting by a party with respect to any default, breach, non-observance or by anything done or omitted to be done by another party. The waiver by a party of any default, breach or non-compliance under this Agreement shall not operate as a waiver of that party’s rights under this Agreement with respect to any continuing or subsequent default, breach or non-compliance (whether of the same or any other nature).
- Modifications. Company may modify any of the terms and conditions contained in this Agreement, at any time and at its sole and absolute discretion, upon posting such changes on the Company website or providing notice to Affiliate by and through the applicable Affiliate Program. All such modifications shall take effect forty-eight (48) hours after Company either posts the modified Agreement or provides notice, as applicable. If any modification is unacceptable to Affiliate, Affiliate’s only recourse is to terminate its marketing of the Company Products and terminate this Agreement. Affiliate’s continued marketing of the Company Products, following the posting of, or notice of, any modification, as applicable, will constitute binding acceptance of the change. Affiliate may not modify this Agreement without Company’s prior written consent.
- Survival. Sections 8-16, and such other provisions set forth in this Agreement that by their very nature should survive termination or expiration of this Agreement, shall survive.
- Electronic Signatures.
Affiliate acknowledges and agrees that by clicking on the submit button or taking such other action as may be designated by Company as a means of accepting this Agreement, Affiliate is submitting a legally binding electronic signature and is entering into a legally binding contract. Affiliate acknowledges that Affiliate’s electronic submission constitutes Affiliate’s agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, AFFILIATE HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY COMPANY. Further, Affiliate hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.