MARKETHEALTH.COM NETWORK AFFILIATE AGREEMENT
MARKETHEALTH.COM NETWORK AFFILIATE AGREEMENT
This Agreement contains the complete terms and conditions that apply to your participation as a member of the Webmaster Affiliate Network (the “Network”) operated by Markethealth.com. (hereinafter, “Company,” “we” or “us). As used in this Agreement, “you” or “your” means the applicant/participating member.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND Markethealth.com. BY CHECKING THE BOX IN THE SUBMISSION FORM YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS SET FORTH HEREIN AND ARE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AFFILIATE NETWORK AGREEMENT AND YOU AGREE TO BE BOUND BY THE TERMS HEREOF. YOU CANNOT BECOME A MEMBER OF THE AFFILIATE NETWORK UNLESS YOU HAVE ACCEPTED EACH AND EVERY TERM HEREOF.
1. Enrollment in this Program.
To begin the enrollment process, you will submit a completed Program Application. We will evaluate your application in good faith and will notify you of your acceptance or rejection. We will reject your application if we determine that you have provided inaccurate or incomplete signup information, determine that you are under 18 years of age or determine that your site is unsuitable for the Program for any reason, including, but not limited to, if your marketing incorporates images or content that is unlawful, defamatory, obscene, harassing or otherwise objectionable, such as marketings that facilitate illegal activity or promote violence or promote or assist others in promoting copyright infringement (collectively, “Content Restrictions”).
2. Utilizing Links in Your Marketing
As an affiliate in the Program, you may use in your marketing materials (“Affiliate Marketing”) any form of promotion you choose, consistent with the terms of this Agreement. You may use banner advertisements, button links and/or text links to our site (the “Links”), however, you cannot employ deceptive language or misleading URL’s in the Links, and you must comply with all applicable state and federal laws. Promotional links must contain Market Health’s trade names, service marks, and/or logos for display in your Affiliate Marketing. Subject to the terms and conditions hereof, you are granted a limited, non-exclusive, non-transferable license to access and link designated promotional materials for placement in your Affiliate Marketing for the sole and exclusive purpose of promoting web sites owned, operated or controlled by Markethealth.com. In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Link or Links.
We will pay you a commission per sale coming from your Links. The Commission Rate is subject to change from time to time, upon email notice to you and commencing the 30-days following such notice. Note that a commission will only be paid if the visitor to our site can be tracked by the system from the time of the Link to the time of the sale. No commission will be paid if the visitor's payment to our site cannot be tracked directly to your marketing by our system or if full payment for services is not made to us by the customer. No commission will be paid for purchases by you or anyone within your organization. Commission amounts are described on the offer page of MarketHealth.com or as agreed upon. If affiliate sale results in a chargeback or fraudulent order, commissions will be removed from the balance. If chargebacks or fraudulent orders exceed 5% of your sales, there will be an additional $30 charge per fraudulent order to your balance and your account will be shut down. Affiliates are NOT charged for Product Returns.
4. Commission Payment.
Commissions due and owing to you under the Program will be paid to you directly by Markethealth.com. Bi-Weekly, Net 15 on the first and sixteenth of each month or on the first Monday following a weekend or holiday.
5. Marketing Must Conform To "Netiquette"
In addition to the Content Restrictions above, you must not send IRC messages or post advertising to the USENET, or a blog belonging to another person, that includes any of Markethealth.com. trademarks, images or Affiliate Marketing URL and/or Products. There will be no leniency in cases of inappropriate marketing and affiliates in violation of this policy will forfeit their unpaid commissions and be removed from the program. Affiliates who cause actual damages to Markethealth.com. through use of prohibited forms of advertising are liable for liquidated damages in the amount of $10,000 for each day Markethealth.com. suffers actual damages.
We do NOT authorize the harvesting or collection of screen names from any ISP service for the purpose of sending unsolicited email, and will terminate without pay any webmaster determined to have transmitted bulk emails advertising any web marketings marketed through this Program to lists gathered by such methods.
Should we determine, in our sole discretion that you have violated this AUP, you will be terminated immediately, will be ineligible to sign up for another account, will not be paid for any traffic or subscriptions generated prior to the date of termination; and your registration information may be turned over to complaining parties.
HOW TO REPORT IMPROPER MARKETING METHODS BY AFFILIATES
If you believe you are the target of advertising in violation of this Agreement from a person or company advertising web sites under this Program, we ask for your cooperation in tracking down the offending party. Please send the offending ad, with all header or other technical information, to info @ markethealth.com.
6. Non-Exclusive Limited License and Use of Affiliate Logos and Trademarks. You grant us a non-exclusive license to utilize your names, titles and logos, trademarks (collectively the “Affiliate Trademarks"), to advertise, market, promote and publicize in any manner our rights hereunder. Notwithstanding anything herein to the contrary, we shall not be required to so advertise, market, promote or publicize. You hereby represent and warrant that you are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use same in the manner contemplated herein, and such grant does not or will not (i) breach, conflict with or constitute a default under any Agreement or other instrument applicable to you or binding upon you, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. This license shall terminate upon the effective date of the expiration or termination of this Agreement.
7. Responsibility for Your Marketing Materials.
The currently effective version of Merchant’s Statement of Policy and Rules is posted at http://www.markethealth.com/marketing-policy.php. Acceptance of and compliance with these policies and rules by each Indirect Affiliate is a condition of Affiliate’s initial and continued eligibility to participate in any online marketing campaign or activities undertaken by Manager and/or Affiliate to promote Merchant's Product Offers.
8. 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. We have the right to monitor your Web site at any time and from time to time to determine if you are in compliance with this Agreement. We also reserve the right to review all commissions for possible fraud. Any incidence of fraud constitutes a breach of this Agreement, and Markethealth.com. retains the right to terminate this Agreement immediately.
9. Term of the Agreements.
The term of this Agreement will begin upon our acceptance of your Affiliate Network 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 notice of termination. Notice by email, to your email address on our records, is considered sufficient notice for to terminate this Agreement. If this Agreement is terminated because you have violated the terms of this Agreement, you are not eligible to receive any commissions payments, even for commissions earned prior to the date of termination. If this Agreement is terminated for any other reason, you are only eligible to earn a commission on sales occurring during the term of the Agreement, and commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion. Notice of any change by email, to your address on our records, or the posting on our site of a change notice of a new Agreement, is considered sufficient notice for notifying you of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available commission fees, commission schedules, payment procedures, and Affiliate Network rules. All such modifications shall take effect 48 hours after we serve notice as provided above, unless we indicate otherwise. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Network, following our posting of a change notice or new Agreement on our site, will constitute binding acceptance of the change.
11. Relationship of Parties.
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 in your marketing or otherwise, that reasonably would contradict anything in this Section. You are not an agent of the Markethealth.com. and the Market Health expressly disclaims responsibility for any conduct by you in violation of our terms of Agreement.
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 or fifty dollars ($50.00), whichever is greater.
We make no express or implied warranties or representations with respect to the Affiliate Network or any Markethealth.com. services or other items 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.
14. Representations and Warranties.
You hereby represent and warrant to us that 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; and that the execution, delivery and performance by you of this Agreement are within your legal capacity and power; have been duly authorized by all requisite action on your part; require the approval or consent of no other persons; and neither violate nor constitute a default under the (i) provision of any law, rule, regulation, order, judgment or decree to which you are subject or which is binding upon you, or (ii) the terms of any other Agreement, document or instrument applicable to you or binding upon you. Should any law enforcement agency or Internet access service provide Markethealth.com. with notice that you have engaged in transmission of unsolicited bulk emails or have otherwise engaged in unlawful conduct or conduct in violation of said service provider’s terms of service, we reserve the right to cooperate in any investigation relating to your activities including disclosure of your account information in connection therewith. We make no warranty, express or implied, with respect to any information delivered hereunder, including implied warranties of merchantability, fitness for a particular purpose or freedom from patent, trademark or copyright infringements, whether arising by law, custom or conduct, or as to the accuracy or completeness of the information and we shall not have any liability to you or to any other person resulting from your or such third person’s use of the information.
We may disclose to you certain information as a result of your participation as part of the program, which information we consider to be confidential (herein referred to as “Confidential Information”). For purpose of this Agreement, the term “Confidential Information” shall include, but not be limited to, any modifications to the terms and provisions of this Affiliate Network Agreement made specifically for your marketing and not generally available to other members of the Affiliate Network, web site, business and financial information relating to Markethealth.com., customer and vendor lists relating to Market Health and any members of the Affiliate network, other than you. Confidential Information shall also include any information that we designate as confidential during the term of this Agreement. You agree not to disclose any Confidential Information and that such Confidential Information shall also include any information that we designate as confidential during the term of this Agreement. You agree not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or if same is required by law or legal process. Should you received a court notice, complaint or subpoena requesting or seeking to compel disclosure of Confidential Information, you shall immediately inform Markethealth.com. and Market Health shall have the right, and be given the opportunity, to obtain a protective order to prevent disclosure of such Confidential Information.
You hereby agree to indemnify, defend and hold harmless Markethealth.com., its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, losses, liabilities, damages or expense (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 or are based on (i) any claim or threatened claim that our use of the Affiliate Trademarks infringes on the rights of any third party; (ii) the breach of any promise, covenant, representation or warranty made by you herein; or (iii) or any claim related to your marketing.
Terminated accounts cannot later apply to the Program without our express written consent. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. 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. This Agreement and the legal relations between the parties hereto shall be governed in all respects, including validity, interpretation, performance and effect, by the laws of the United States of America, applicable to contracts made and to be wholly performed therein. The parties hereto expressly and irrevocably consent and submit to the personal jurisdiction and venue of the state and federal courts of Los Angeles, California with respect to any legal action or proceeding that may be brought pursuant to this Agreement. You hereby expressly and irrevocably waive any claim or defense in any such action or proceeding based on any alleged lack of personal jurisdiction, improper venue or forum non convenient or similar theory. In any action for violation of this Agreement, the prevailing party shall be entitled to recovery of costs and expenses, including attorneys' fees.
18. Other Grounds for Termination
In addition to the foregoing, we will immediately terminate your participation in the Program if we believe you have engaged in any of the following:
Altering by electronic, mechanical or automated means or other technologies, that may now exist or come into existence, the Program webmaster affiliate code or Program site URLs belonging to or identified with accounts other than your own, or causing the modification or substitution of Program webmaster affiliate code or Program site URLs belonging to or identified with accounts other than your own that may reside within or originate from a third party system in the form of bookmarks, cached pages, cookies or other stored forms that may be passed to the Program and/or Company system by user operation of said third party system.
Making any statement, whether on your site or otherwise, that reasonably would contradict anything in this Agreement.