AFFILIATE PROGRAM AGREEMENT
This Master Agreement ("Agreement") is made between DIET DIRECT ("Merchant") and Your Web Site ("Publisher").
Publisher and Merchant are each enrolled in the Shareasale Network. Publisher and Merchant each desire to establish the general terms and conditions which shall govern advertising and commission arrangements between Publisher and Merchant which result from their participation in the Shareasale Network.
TERMS AND CONDITIONS
In consideration of the promises set forth below, we agree as follows:
IMPORTANT-READ CAREFULLY: THIS AFFILIATE PROGRAM AGREEMENT, INCLUDING APPLICABLE OFFERS (COLLECTIVELY, THE "AGREEMENT"), IS A LEGAL AGREEMENT BETWEEN YOU AND DIET DIRECT ("DIET DIRECT") FOR PARTICIPATION IN DIET DIRECT'S AFFILIATE PROGRAM ("PROGRAM") AS MANAGED BY AND THROUGH SHAREASALE. BY REGISTERING FOR AND PARTICIPATING IN THE PROGRAM, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT REGISTER FOR OR PARTICIPATE IN THE PROGRAM. IF YOU DO NOT AGREE TO AND ACCEPT THE TERMS OF THIS AGREEMENT IN ITS ENTIRETY AND YOU ARE ALREADY A DIET DIRECT AFFILIATE, IMMEDIATELY TERMINATE ALL USES OF DIET DIRECT'S MARKS AND ANY LINKS TO DIET DIRECT'S WEBSITE. AS USED IN THIS AGREEMENT "WE" MEANS DIET DIRECT AND "YOU" MEANS THE PARTICIPATING WEB AFFILIATE ("AFFILIATE" OR "YOU").
1. PARTICIPATION IN THE PROGRAM
This agreement governs participation in the DIET DIRECT Affiliate Program only. Once you are accepted into the Program, you will be able to participate in the Program subject to the terms and conditions of this Agreement. You should also note that if you are accepted to participate in the Program and your Site is thereafter determined (in our sole discretion) to be unsuitable based on the criteria below for the Program, we may terminate this Agreement:
Publisher may NOT:
• Include ANY variations or misspellings of the following words (used singularly or in combination with other words) in their domain names. DIET DIRECT, DIETDIRECT, WONDERSLIM, WONDER SLIM, BARIWISE, WONDERLIFE.
• Bid on or include ANY variations or misspellings of the following “Prohibited words” (used singularly or in combination with other words) in connection with any search keyword programs and/or search engines such as Google, Yahoo, MSN, any other “pay-for-placement” or “pay-per-click” provider or any new search engine or similar type of technology for similar purposes not yet in existence on the date of this Agreement (collectively referred to as “Search Engines”). Prohibited words: DIET DIRECT, DIETDIRECT, WONDERSLIM, WONDER SLIM, BARIWISE, WONDERLIFE. Publisher is responsible for including negative keywords in search engine advertising to ensure that your ad(s) do not display on searches that include these prohibited words. Publisher shall bid only on such keywords which have been submitted to Advertiser by Publisher for Advertiser’s written approval, such approval to be granted or withheld in Advertiser’s sole discretion.
• Use direct linking, redirects or redirect links or scripts in “pay-per-click” (PPC) search engine advertising.
• Register, or seek to register any of Advertiser’s tradenames, trademarks, service marks, domain name or any variation or misspelling thereof, or any name, tradename, trademark or domain name which is confusingly similar to Merchant’s trademarks, tradenames, service marks or domain name, including, but not limited to the names : “Diet Direct”, “DietDirect.com”, “WonderSlim”, Wonderslim.com”, “BariWise”, Bariwise.com” and any variations or misspellings of the foregoing (all of the foregoing items being hereinafter referred to as “Prohibited Names”.
Your Site may not:
• Promote graphic violence (which may include certain types of game sites)
• Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
• Promote sexually explicit, pornographic or obscene content (whether in text or graphics)
• Promote illegal activities
• Include " DIET DIRECT”, “DIETDIRECT”, “WONDERSLIM”, “WONDER SLIM”, “BARIWISE”, “WONDERLIFE” or variations or misspellings thereof in their domain names
• Promote content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethnically or otherwise objectionable
• Promote or use bulk unsolicited email (spam)
• Promote speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise)
• Promote content related to liquor, tobacco, firearms, drugs, gambling, crime or death
• Promote politically sensitive or controversial issues (e.g. abortion, capital punishment) or other political content (e.g. lobbyists, political campaigns)
• Promote any unlawful behavior or conduct
• Otherwise are considered offensive or inappropriate at DIET DIRECT's sole discretion
2.1. "Qualifying Link" means a DIET DIRECT link from your Site to DIET DIRECT's Site using one of the Required URLs or any other URL or graphic link provided by DIET DIRECT for use in the Program. A Qualifying Link or "Linking Materials" shall be defined as hyperlinks, buttons, banners or other user interface established by DIET DIRECT for your Web site.
2.2. "Qualifying Product" means a product that is offered for sale by DIET DIRECT at the DIET DIRECT Site and is the subject of an Offer.
2.3. "Qualifying Product Sales" means sales of Qualifying Products offered at DIET DIRECT's Site.
2.4. "Qualifying Product Revenues" means revenues derived by us from Qualifying Product Sales, less chargebacks, taxes, surcharges and processing fees.
2.5. "Required URLs" means the special URLs specified in an Offer to be used to link from your Site to DIET DIRECT's Site.
2.6. "Cookie Duration". The length of time affiliates receive credit for a sale after the initial click is determined by cookie duration. DIET DIRECT’s cookie duration is 30 days.
2.7. "Site" means a World Wide Web Site and, depending on the context, includes the website that you will link to the DIET DIRECT Site as identified in your Shareasale registration form.
2.8. "Loyalty Program" refers to a program that issues any type of reward or incentive for qualifying product sales either directly to the consumer via a cash back or points system, or via a donation to a charitable organization. We do NOT allow incentive websites or loyalty programs.
3.1. From time to time, DIET DIRECT may post on Shareasale Offers to pay members of Shareasale a specified commission fee on certain Qualifying Product Sales to third parties through a Qualifying Link.
3.2. The terms of an Offer, as posted on Sharesale or otherwise communicated to you shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Offer and the terms of this Agreement, the terms of the Offer shall govern.
3.3. At any time prior to you providing a Qualifying Link, DIET DIRECT may, with or without notice, (a) change, suspend or discontinue any aspect of an Offer or (b) remove, alter, or modify any graphic or banner ad provided to you pursuant to an Offer. You agree to promptly implement any request from DIET DIRECT to remove, alter or modify any graphic or banner ad submitted by you that is being used in connection with an Offer.
4. YOUR RESPONSIBILITIES
4.1. You shall only link your Site to areas within DIET DIRECT's Site using Required URLs for the Program. You may post as many links to the Required URLs as you like. The position, prominence and nature of links on DIET DIRECT's Site shall comply with any requirements specified in the Offer, but otherwise will be in DIET DIRECT's sole discretion. Only valid Qualifying Links generated by Shareasale will be tracked for purposes of determining commissions that you may be eligible to receive on Qualifying Product Sales generated through your Site.
4.2. You agree to display DIET DIRECT's Link materials appropriately on your Web site and/or Email and to respect DIET DIRECT's trademarks, service marks and other rights in the Link Materials. You will use only these Link materials to link your Web site to DIET DIRECT's Web site, and you will not alter the look or feel of these Link Materials or of our Web site in any way. You will update to new versions of Link Materials as DIET DIRECT makes them available or you submit a request for a specific type of Linking Material.
4.3. DIET DIRECT will not, and is not obligated to, make any representations, warranties or other statements concerning you, your Site, any of your products or services, or your Site policies, except as expressly authorized by the Offer.
4.4. You will be solely responsible for the development, operation and maintenance of your Site and for all materials that appear on your Site. We disclaim all liability for such materials. You shall indemnify and hold us harmless from all claims, damages and expenses (including, without limitation, attorney's fees) relating to the development, operation, maintenance and contents of your Site. You are also responsible for notifying us and Shareasale of any malfunctioning of the Required URLs or other problems with your participation in the Program in accordance with the terms of the Offer and this Agreement. DIET DIRECT (or a designee such as Shareasale) will respond in normal course to all concerns upon notification.
4.5. You will not make any representations, warranties or other statements concerning DIET DIRECT, or DIET DIRECT's Site.
4.6 Coupons and deals found on Shareasale or those being promoted directly on DietDirect.com are allowed at a reduced commission rate. User generated content that contains unauthorized coupon codes is not allowed to appear on any page where an affiliate link to DietDirect.com is present. Affiliates found promoting any unauthorized coupon codes will be subject to a reversal of ALL commissions for the given period.
4.7 DIET DIRECT reserves the right to adjust payment levels based on traffic and sales reports in order to right-size sales generated via browser redirects (all sales not generated via site driven marketing efforts such as site placements, newsletters, etc.)
As an approved participant of DIET DIRECT's Affiliate Program, you may earn commissions for affiliate services in accordance with this Section 5. DIET DIRECT may change or terminate the provisions of this Section 5 at any time and at DIET DIRECT's sole discretion.
5.1. DIET DIRECT agrees to pay you the commission specified in this Agreement if DIET DIRECT sells to a visitor to DIET DIRECT's site (a "Customer") a product or service that is the subject of this Agreement and if that Customer has accessed DIET DIRECT's site and purchased the product or service via a Qualifying link.
5.2. Affiliates with websites related to the diet/fitness industry, DIET DIRECT will pay 15% for all NEW CUSTOMER (a customer that has never shopped with DietDirect.com before) sales and 5% on all REPEAT CUSTOMER (a customer that has ordered from DietDirect.com anytime in the past) sales. The amount of the Qualifying Product Revenues per item for products sold are subject to change at any time in Merchant's sole and absolute discretion.
5.2.1. For any Coupon/Deal/Loyalty related websites (a website whose primary promotion method is through coupons, coupon codes, deals and/or loyalty programs), DIET DIRECT will pay 4% for all NEW CUSTOMER (a customer that has never shopped with DietDirect.com before) sales and 1% on all REPEAT CUSTOMER (a customer that has ordered from DietDirect.com anytime in the past) sales. The amount of the Qualifying Product Revenues per item for products sold are subject to change at any time in Merchant's sole and absolute discretion.
5.3 The length of time affiliates receive commission for Qualifying Product Revenues after the initial click is determined by cookie duration. DIET DIRECT’s cookie duration is 30 days.
5.4. DIET DIRECT shall have the sole right and responsibility for processing all payment processing and fulfillment of orders for our Products sold pursuant to this Agreement. You acknowledge that all agreements relating to sales to Customers shall be between DIET DIRECT and the Customer.
5.5. You acknowledge that your entitlement to any compensation reported with respect to any tracked or reported activity is solely a function of the terms of your agreement with DIET DIRECT and that DIET DIRECT is solely responsible for its payment. The fact that a compensation amount is reported for any tracked activity does not necessarily mean that a payment is due to you from DIET DIRECT, since payment may be subject to conditions established by DIET DIRECT, including policies regarding order cancellation, returned merchandise, receipt of pending credit card authorizations and minimums for earned compensation before payment is made. All determinations of Qualifying Links and the compensation due to you shall be final and binding.
5.6. All determinations of Qualifying Links and whether a commission is payable will be made by DIET DIRECT and will be final and binding on both parties. Prices for the products will be set solely by DIET DIRECT in its discretion.
5.7. As an independent contractor, you will be solely and entirely responsible for any and all taxes and/or other fees or obligations associated with the receipt of payment under this Agreement.
5.8. The terms and conditions of this Section 5, including the fee amounts, may be changed at any time and for any reason within DIET DIRECT's sole discretion.
6. COMMISSION PAYMENT
Unless otherwise stated in an Offer Addendum, we will pay you commissions on a monthly basis. Approximately thirty (30) days following the end of each month, we (via our designee, Shareasale) will pay you a commission earned on Qualifying Product revenues for that month, less any returns and canceled orders. However, if the commission payable to you for any month are less than $25.00, we will hold those commissions until the total amount due is at least $25.00 or (if earlier) until this Agreement is terminated.
7. OWNERSHIP AND LICENSES
7.1. Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.
7.2. We grant you a limited, revocable, non-exclusive, license to use the graphic image and text, which may include our name, logos, trademarks, service marks (collectively, the "DIET DIRECT Marks"), designated in the Offer, only as provided to you through Shareasale’s Site and solely for the purpose of creating links from your Site to our Site pursuant to this Agreement. Except as expressly set forth in this Agreement or permitted by applicable law, you may not copy, distribute, modify, reverse engineer, or create derivative works from the same. You may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void. Any prominent use of the DIET DIRECT Marks on your Site must be approved by DIET DIRECT prior to publishing. We may revoke your license at any time by giving you written notice.
7.3. As a condition to your acceptance and participation in the Program, you agree not undertake or engage in the following practices, and any violation of this Section shall be deemed a material breach of this Agreement:
(a) Use or otherwise incorporate the word "DIET DIRECT", “DIETDIRECT”, “WONDERSLIM”, “WONDER SLIM”, “BARIWISE”, “WONDERLIFE” or variations or misspellings in the domain name(s) of your Site(s), on any meta tags of Web pages comprising your Site, or in advertising or searchable keywords.
(b) Modify or alter DIET DIRECT's Site in any way;
(c) Make any representations, either express or implied, or create an appearance that a visitor to your Site is visiting DIET DIRECT's Site, e.g. "framing" the DIET DIRECT Site, without DIET DIRECT's prior written approval; or
(d) "Scrape" or "spider" the DIET DIRECT Site or any other DIET DIRECT website for content (such as images, logos, coupons and text).
Furthermore, upon DIET DIRECT's request, you shall immediately remove from the your Site any Link to our Site which is displayed on a page which we, in our sole discretion, deem objectionable.
7.4. Customers that link from your Web site to DIET DIRECT's Web site under this program become DIET DIRECT's customers and DIET DIRECT's responsibility for purposes of their business relationship with DIET DIRECT. DIET DIRECT Customer lists and other DIET DIRECT Customer information are DIET DIRECT's trade secret information.
8.1. Either party may terminate this Agreement at any time, for any reason, upon written notice of such termination to the other party. In addition, DIET DIRECT shall be entitled to terminate this Agreement immediately, and void outstanding commissions if you materially breach or violate any terms or conditions of this Agreement, or if DIET DIRECT determines, in its sole discretion, that there are technical, or operational issues (e.g. interruptions caused by or shifts in online/Internet technology) that adversely affect the implementation of the Program, or the orders/referrals were obtained fraudulently, or through misrepresentation, in which case DIET DIRECT reserves the right to withhold payment of associated commission pending an investigation of the suspected fraud or misrepresentation. Termination of this Agreement shall also terminate any outstanding Offer. However, all rights to payment, causes of action and any provisions that by their terms are intended to survive termination, shall survive termination of this Agreement.
8.2. Upon termination of this Agreement for any reason, you will immediately cease use of, and remove from your Site, all links to our Site, and all DIET DIRECT trademarks, trade dress and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program.
8.3. You are only eligible to earn commissions on Qualifying Product Revenues occurring during the term of this Agreement, and commissions earned through the date of termination will remain payable only if the related Qualifying Products are not canceled or returned by a Customer, or voided by DIET DIRECT.
9.1. You represent and warrant that (a) you have the authority to enter into this Agreement and sufficient rights to grant any licenses expressed herein, and (b) any material displayed on your Site will not: (i) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, anti-discrimination or false advertising; (vi) promote violence or contain hate speech; (vii) promote discrimination based on race, age, sex, religion, nationality, sexual orientation or disability; (viii) contain viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines' or (ix) otherwise constitutes an "unsuitable Site" as determined by DIET DIRECT in accordance with the terms outlined in the Section 1 above titled "Participation in the Program."
9.2. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. DIET DIRECT MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM OR THAT OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE AND WE WILL NOT BE RESPONSIBLE FOR CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
Each party hereby agrees to indemnify, defend and hold harmless the other party and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.
11. LIMITATION OF LIABILITY
In no event will either party be liable to the other party for any direct, indirect, special, exemplary, consequential or incidental damages arising from or related to this Agreement, the Program, or Shareasale, even if informed of the possibility of such damages. Further, DIET DIRECT's aggregate liability arising from this Agreement and the Program shall not exceed the total commissions paid or payable to you under this Agreement.
12.1. No Agency. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect, and nothing in this Agreement (including any Offer) shall create any partnership, joint ventures, agency, franchise, sales representative or employment relationship between the parties. Neither party shall make any statement, whether on their sites or otherwise, that reasonably would contradict anything in the paragraph.
12.2. Responsibility for Binding Agreement. 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 Sites that are similar to or compete with your 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.
12.3. Jurisdiction; Venue. This Agreement shall be governed by the laws of the State of North Carolina, without reference to rules governing choice of laws and you irrevocably consent to the jurisdiction of such courts. DIET DIRECT may freely assign their rights in this Agreement. An affiliate may not assign affiliate rights in this Agreement.
12.4. Counterparts; Manifestation of Assent. This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution and manifestation of assent may be achieved in any format convenient to the parties.
12.5. Severability. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
12.6. Assignment. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent, which may be withheld in our sole discretion. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and 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 provision or any other provision of this Agreement.
12.7. Equitable Relief. The parties agree that any breach of either of the party's obligations regarding trademarks, service marks or trade names, confidentiality, links or the removal of links, and/or user data may result in irreparable injury for which there may be no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party's obligations regarding trademarks, service marks or trade names, confidentiality, links or the removal of links, and/or user data, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.
12.8. Obligation to Mediate in Good Faith. Except as provided in this Section 12.7, before either party initiates a lawsuit against the other relating to this Agreement, the parties agree to mediate all disputes and claims arising out of or relating to this Agreement, the parties' performance under it, or its breach. To this end, either party may request, after informal discussions have failed to resolve a dispute or claim, that each party designate an officer or other management employee with authority to bind the party to meet in good faith and attempt to resolve the dispute or claim through mediation. During their discussions, each party will honor the other's reasonable requests for information that is not privileged and relates to the dispute or claim. This Section does not apply (i) should the expiration of the statute of limitations for a cause of action be imminent, or (ii) if a party is seeking an injunction pursuant to Section 12.8.
12.9. Force Majeure. You acknowledge that DIET DIRECT's and Shareasale’s servers, equipment, and services (e.g. tracking and reporting) may be subject to temporary modifications or shutdowns due to causes beyond DIET DIRECT's and Shareasale’s reasonable control. Such temporary service interruptions will not constitute a material breach of this Agreement. DIET DIRECT and Shareasale will use commercially reasonable efforts to provide the services contemplated under this Agreement and to remedy any temporary interruptions or other problems that adversely affect the Program.
12.10. Attorneys' Fees. In the event any action is commenced to construe or enforce any provision of this Agreement, the prevailing party, in addition to all other amounts such party is be entitled to receive from the other party, will be entitled to receive its reasonable attorneys' fees and costs incurred in bringing such action.
12.11. Survival. Sections 8 (Termination), 10 (Indemnification), 11 (Limitation of Liability), and 12 (General), including all subsections thereof, shall survive the termination of this Agreement.
12.12. Modifications. 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 the Shareasale Site and giving you notice of the modification through Shareasale. Modifications may include, for example, changes in the scope of available commissions, commission schedules, payment procedures, and Program rules. 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.