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This Agreement contains the complete terms and conditions that apply to
an individual's or entity's participation in the Wellness Tools Affiliate
Program (the "Program"). As used in this Agreement, "we" means Wellness Tools,
"you" means the applicant, and “product” means any item offered for sale
on the Wellness Tools Web site. "Site" means a World Wide Web site and,
depending on the context, refers either to Wellness Tools site (inclusive
of our affiliate reporting site) or to the site that you will link to our
site.
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1. Enrollment in the Program
To begin the enrollment
process, you will submit a complete Program application via our site. We
will evaluate your application in good faith and will 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 the Program.
Unsuitable sites include, but are not limited to, sites that: promote or
contain or link to sexually explicit materials promote violence promote
discrimination based on race, sex, religion, nationality, disability,
sexual orientation, or age promote illegal activities violate intellectual
property rights or violate any local, state, federal or other law or
regulation contain any libelous, defamatory or disparaging materials
contain little or no original content If we reject your application, you
are welcome to reapply to the Program at any time.
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2. Promotion of our Affiliate Relationship
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 may display as often and in as many areas on
your site as you desire. The Links will serve to identify your site as
a member of the Affiliate Program and will establish a link from your
site to ours. The Links may connect to any areas of our site, including
the Wellness Tools home page. Once you have been notified that your site
has been accepted into the program we will provide you with a specific
URL e-mail that will give you instructions on how to set up special links
between your site and ours. You may provide on your site one or more of
our logos, text links and banners which you select from our Wellness Tools
Affiliate library. To permit accurate tracking, reporting, and fee accrual,
you must ensure that the Links between your site and our site are properly
formatted.
You must use the specific html code for your links
in order to meet the criteria in the operating agreement. You may not
alter banners, logos, or other content available without written permission
from Wellness Tools. Additional brands and pricing issues may be added
from time to time. Additionally, new standards will be on our web site
from time to time. It is your responsibility to ensure that all such changes
are appropriately adhered to.
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3. Order Processing
We will process product orders placed by customers who follow Links from
your site to Wellness Tools home page. We reserve the right to reject
orders that do not comply with any requirements that we periodically may
establish. We will be responsible for all aspects of order processing
and fulfillment. We will track sales made to customers who purchase products
using authorized Links from your site to our site and will provide you
reports summarizing this sales activity. To permit accurate tracking,
reporting, and fee accrual, you must ensure that the Links between your
site and our site are created with the HTML code from the original e-mail
we send you upon joining the program. If our home page changes and you
have Links that direct visitors to these pages, we will redirect your
visitors to an appropriate page automatically.
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4. Fee schedule and payment
We will pay you 15% on the net sales of line of products (very few
exceptions). Net sales are defined as product sales not including any
sales tax or shipping charges. If the customer returns a Product that
generated a referral fee, we will deduct the corresponding referral fee
from your next payment. We will pay you monthly. All checks will be mailed
by last business day of the month following the month in which the fees
were generated. All payments will be made in U.S. Dollars. All we ask
is that our Wellness Tools affiliates only need to reach a minimum level
of $25 in commission before they are paid out. We want to reward you for
your efforts and appreciate your commitment to the program. All sales
are cumulative so all sales are carried to the next month until you reach
$25 in commissions. We will not, however, pay referral fees on any Products
that are added to a customer's Shopping Cart after the customer has re-entered
our site (other than through a Special Link), even if the customer previously
followed a link from your site to our site. You should have no problem
maximizing your payout! Gift certificates are not eligible to earn referral
fees.
You may not purchase products during sessions initiated through the links on your site
for your own use, for resale or commercial use of any kind. This includes
orders for customers or on behalf of customers or orders for products to
be used by you or your friends, relatives or associates in any manner.
Such purchases may result (in our sole discretion) in the withholding of
referral fees or the termination of this Agreement.
In addition, you may not: (a) directly or indirectly offer any person or
entity any consideration or incentive (including, without limitation,
payment of money (including any rebate), or granting of any discount or
other benefit) for using Special Links on your site to access our site
(e.g., by implementing any "rewards" program for persons or entities who
use Special Links on your site to access our site); or (b) post any
Special Links on any Web site or other platform that is accessible through
any Internet Access Appliance. If we determine, in our sole discretion,
that you have offered any person or entity any such consideration or
incentive, or posted Special Links on any such Web site or platform, we
may (without limiting any other rights or remedies available to us)
withhold any referral fees otherwise payable to you under this Agreement
and/or terminate this Agreement.
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5. Policies and Pricing
Customers who buy products through this Program will be deemed to be customers
of Wellness Tools. Accordingly, all Wellness Tools rules, policies, and
operating procedures concerning customer orders, customer service, marketing,
promotions, and product 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 products sold under this Program
in accordance with our own pricing policies. Product prices and availability
may vary from time to time. Because price changes may affect products
that you already have listed on your site, you may not 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. For additional information on our
policies and pricing, please see the Customer Service Section on Wellness
Tools.
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6. Identifying Yourself as an Associate
We will make available to you a small graphic image that identifies your
site as a Program participant. You must display this logo or the phrase
"In association with Wellness Tools" somewhere on your site. We may modify
the text or graphic image of this notice from time to time. In addition,
we encourage (but do not require) you to include a Special Link on your
site to the Wellness Tools.com home page at http://www.wellnesstools.com.
You may not make any press release with respect to this Agreement or your
participation in the Program without our prior written consent, which
may be given or withheld in our sole discretion. In addition, you may
not in any manner misrepresent or embellish the relationship between us
and you, or express or imply any relationship or affiliation between us
and you or any other person or entity except as expressly permitted by
this Agreement (including by expressing or implying that Wellness Tools
supports, sponsors, endorses or contributes money to any charity or other
cause).
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7. Limited License
We grant you a non-exclusive,
nontransferable, non-sublicensable, revocable right to use the icon and
message described in this agreement and such other images for which we
grant express permission (collectively “Marks”), solely for the purpose of
identifying your site as a Program participant. You may not modify the
Marks, the message, or any of our proprietary identifying logos or images
in any way. We reserve all of our rights in the Marks and the message
including all trade names, trademarks, and all other related intellectual
property rights. We may revoke your license at any time by giving you
written notice.
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8. Responsibility for Your Site
Subject to our right of approval relating to your exercise of the licenses
granted herein, you will be solely responsible for the development, operation,
and maintenance of your site and for all materials that appear on your
site. For example, you will be solely responsible for: the technical operation
of your site and all related equipment creating and posting product descriptions
on your site and linking those descriptions to our site the accuracy and
appropriateness of materials posted on your site (including, among other
things, all product-related materials) ensuring that materials posted
on your site do not violate or infringe upon the rights of any third party
(including, for example, copyrights, trademarks, privacy, or other personal
or proprietary rights) ensuring that materials posted on your site are
not libelous or otherwise illegal. We disclaim all liability for these
matters. Further, you will indemnify and hold us harmless from all claims,
damages, and expenses (including, without limitation, attorneys' fees)
relating to the development, operation, maintenance, and contents of your
site. Except as provided here you agree that you have no right, title
or interest in or to the Marks, the message or any of our proprietary
materials. You agree not to apply for registration of any of the Marks
(or any mark similar there to) anywhere around the world. You agree that
you will not engage, participate or otherwise become involved in any activity
or course of action that diminishes and/or tarnishes the image and or
reputation of Wellness Tools or any of its Marks. You acknowledge and
agree that your web site information (name, URL, traffic counts, etc.)
may be utilized by Wellness Tools. Possible uses include (but are not
limited to) lists of the busiest sites, lists of member sites, etc. You
agree to allow Wellness Tools to use screen shots of any web page that
contains the Wellness Tools HTML code in Wellness Tools promotional materials.
The information provided by Wellness Tools to you may be proprietary in
nature. You represent and warrant to us that you are not and shall not
be a competitor of Wellness Tools and agree not to share our confidential
information with any competitors.
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9. Term of the Agreement
The term of this Agreement
will begin upon our acceptance of your 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 referral fees
on sales occurring during the term, and fees earned through the date of
termination will remain payable only if the related product orders are not
canceled or returned. We may withhold your final payment for a reasonable
time to ensure that the correct amount is paid.
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10. Modification
We may modify any of the terms and
conditions contained in this Agreement, at any time and in our sole
discretion, by posting a change notice or a new agreement on our site.
Modifications may include, for example, changes in the scope of available
referral fees, fee schedules, payment procedures, and Program rules. Your
continued participation now, or within thirty (30) days following the
posting notice of any changes in these terms and conditions, will
constitute a binding acceptance by you of such rules, changes or
modifications. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY
RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN
THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON
OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
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11. Relationship of Parties
You and we 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, that reasonably
would contradict anything in this Section.
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12. Limitation of Liability
We will not be liable for indirect, special, or consequential damages (or any loss of revenue,
profits, or data) arising in connection with this Agreement or the
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 Program will not exceed the total referral fees paid or payable to
you under to this Agreement.
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13. Disclaimers
We make no express or implied
warranties or representations with respect to the Program or any products
sold through the Program (including, without limitation, warranties of
fitness, merchantability, non-infringement, or any implied warranties
arising out of a 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.
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14. Indemnification
You hereby agree to indemnify, defend and hold harmless Wellness Tools,
its shareholders, officers, directors, employees, agents, affiliates,
successors and assigns, from and against any and all claims, demands,
losses, liabilities, damages or expenses (including attorneys’ fees and
costs) of any nature whatsoever incurred or suffered by us (collectively
the “losses”), in so far as such losses (or actions in respect thereof)
arise out of, are related to, or are based on i) the breach of any representation,
warranty, or covenant made by you herein; or ii) or any claim related
to your site.
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15. Confidentiality
Except as otherwise provided in
this Agreement or with the consent of the other party hereto, each of the
parties hereto agrees that all information including, without limitation,
the terms of this Agreement, business and financial information, customer
and vendor lists, and pricing and sales information, concerning us or you,
respectively shall remain strictly confidential and secret and shall not
be utilized, directly or indirectly, by such party for its own business
purposes or for any other purpose except and solely to the extent
necessary to exercise rights and perform obligations under this Agreement.
The foregoing restrictions will not apply to information to the extent (i)
was known to the receiving party at the time of disclosure; (ii) has
become publicly known through no wrongful act of the receiving party;
(iii) has been rightfully received from a third party under no obligation
to the disclosing party; (iv) has been disclosed by court order or as
otherwise required by law if the receiving party has given the disclosing
party a reasonable opportunity to contest or limit the scope of such
required disclosure.
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16. Independent Investigation
YOU ACKNOWLEDGE THAT
YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS.
YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) 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 YOUR
WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF
PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION,
GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
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17. Miscellaneous
The provisions contained in this agreement constitute the entire agreement
between the parties with respect to the subject matter of this agreement,
and no statement or inducement with respect to such subject matter by
any party which is not contained in this agreement shall be valid or binding
between the parties. You may not assign or transfer this agreement or
any interest herein, nor shall the same be assignable by operation of
law, without our prior written consent. For this purpose, "assignment"
shall include any sale of a majority of the voting power of your capital
stock or any merger, consolidation or other comparable transaction following
which you are not the surviving corporation. This agreement shall be governed
by, and construed in accordance with, the laws of the State of Colorado.
Any legal proceeding of any nature brought by either party against the
other to enforce any right or obligation under this agreement, or arising
out of any matter pertaining to this agreement, shall be submitted for
trial, without jury, before the federal or state courts located in the
city of Colorado Springs, Colorado. The parties consent and submit to
the jurisdiction of any such court and agree to accept service of process
inside or outside the State of Colorado in any matter to be submitted
to any such court pursuant hereto. No release, discharge or waiver of
any provision of this agreement will be enforceable against or binding
upon either party unless in writing and executed by the party granting
such release, discharge or waiver. Neither the failure to insist upon
strict performance of any of the agreements, terms, covenants or conditions
hereof, nor the acceptance of monies due hereunder with knowledge of a
breach of this agreement, shall be deemed a waiver of any rights or remedies
that either party may have or a waiver of any subsequent breach or default
in any of such agreements, terms, covenants and conditions. If any term
or provision of this agreement shall be found to be void or contrary to
law, such term or provision shall, but only to the extent necessary to
bring this agreement within the requirements of law, be deemed to be severable
from the other terms and provisions hereof, and the remainder of this
agreement shall be given effect as if the parties had not included the
severed term herein. As used in this agreement, "dollars" or "$" refers
to United States dollars. This agreement only applies to our Wellness
Tools site and not to any web site operated by us outside of the United
States.
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