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This Agreement contains the complete terms and conditions that
apply to your participation as an online Affiliate (“Affiliate”) in the
Affiliate Program of Hennergy, Inc., and the establishment of links from your
affiliate website (the “Affiliate Website”) to our website, www.marilu.com
(“our site” or “Marilu.com”).
1. Enrollment in the Affiliate Program
To begin the enrollment process, you will submit a complete Affiliate Program
application via our site. We will evaluate your application in good faith and
will notify you of your acceptance or rejection in a timely manner. We may
reject your application if we determine (in our sole discretion) that your
site is unsuitable for the Affiliate Program for any reason, including, but
not limited to, inclusion of content that is in any way unlawful, harmful,
threatening, defamatory, obscene, harassing, or racially, ethnically, or
otherwise objectionable. If we reject your application, you are welcome to
reapply to the Affiliate Program at any time.
2. Promotion of Our Affiliate Relationship
As an Affiliate, we will make available to you a variety of graphics 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 our
Affiliate Program and will establish a link from your site to ours. In
utilizing the Links, you agree that you will cooperate fully with us in order
to establish and maintain such Links. You also agree that you will display in
your site only those graphic or textual images (indicating a Link) that are
provided by us, and you will substitute such images with any new images
provided by us from time to time throughout the term of this Agreement. The
Affiliate Site shall display such graphic and/or textual images prominently
in relevant sections of their site and in a manner consistent with our
then-current policies, including, but not limited to our policies regarding
image resolution and proprietary notices. All Links may be modified and/or
expanded from time to time throughout the term of this Agreement pursuant to
the mutual agreement of the parties hereto. Each Link connecting users of
your site to our site will in no way alter the look, feel, or functionality
of our site. You may not post product prices.
3. Our Responsibilities
We will be responsible for providing all information necessary to allow you
to make appropriate Links from your site to our site. We will be solely
responsible for processing every order placed by a customer following a
special Link from your site to our site, for tracking the volume and amount
of sales generated by your site, and for providing information to Affiliate
Sites regarding sales statistics via our reporting platform. We will be
responsible for order entry, payment processing, shipping, cancellations,
returns, and related customer service.
4. Other Responsibilities and Opportunities of Affiliate Sites
a. If you qualify and agree to participate as
an Affiliate Site, you shall display Links prominently throughout your site
as you see fit and with our consent.
b. You will be entitled to earn referral fee payments for customer
sales as set forth in sections 6 and 7 below.
c. You will not read, intercept, record, redirect, interpret, or fill
in the contents of any electronic form or other materials submitted to
Marilu.com by any person or entity;
d. You will not in any way modify, redirect, suppress, or substitute
the operation of any button, link, or other interactive feature of Marilu.com
e. You will not take any action that could reasonably cause any
confusion to the user as to which website transactions or actions are
occurring.
f. Except for linking as described above, you will not post or serve
any advertisements or promotional content around or in conjunction with the
display of Marilu.com (e.g., through any “framing” technique or technology or
pop-up windows), or assist, authorize, or encourage any third party to take
any such action. If we determine, in our sole discretion, that you have
engaged in any of the foregoing activities, we may (without limiting any
other rights or remedies available to us) withhold any revenue sharing fees
otherwise payable to you under this Agreement and/or terminate this
Agreement.
g. We have the right in our sole discretion to monitor your site at
any time and from time to time to determine if you are in compliance with the
terms of this Agreement.
5. Relationship
If, at any time, we discover that you are using your affiliate relationship
with us for any reason other than that of an affiliate, your relationship
with us will be immediately terminated and any commissions earned as a result
of the transaction or transactions that gave rise to said termination shall
immediately be disallowed or charged back.
6. Referral fee Payment Determination
Only products that
we choose to offer through our website (“products”) that are (a) sold by us,
(b) purchased by users linking to our site from your site (as an approved
affiliate) pursuant to a Link (“Linked Users”), (c) delivered to a customer
physically or electronically, and (d) for which we have received full
payment, will qualify for a referral fee payment (each, a “Qualifying
Purchase”).
7. Referral Fees Payment
For a Qualifying
Purchase, that affiliate will receive a commission fee of 10% of the selling
price of the product sold. This is known
as a first-tier commission and it is the only type of commission that we
offer.
A commission will only be credited to an affiliate after the
customer has made full payment to Marilu.com. If a customer later requests a refund or a chargeback is issued
by the credit holder whose credit card was used to pay for that customer’s
account, any commissions that were credited will be deducted from the next
monthly payment. If there is no next
monthly payment, the affiliate will be billed and hereby agrees to be bound
by law to reimburse Marilu.com in full for any such commissions.
Payments will be issued via check only, made payable to the
affiliate in the name the affiliate submits in his or her online
registration, and mailed to the mailing address provided by the affiliate.
Affiliates must have accumulated commissions of at least $50 for
a given payment period before a check will be issued. If commissions are less
than $50 for a given month, the commissions will be held over until the next
month. Commissions will continue to
be held over until the commissions accumulate to more than $50.
8. Tracking and Reporting of Sales
We will be solely responsible for tracking sales using
special software that communicates with the specially encoded Links assigned
to affiliates. We will track and pay
referral fees on Qualifying Purchases made even after the customer re-enters
our site through the use of a cookie placed on the end-user’s computer. The cookie may expire in 30 days or at a
time determined by Marilu.com.
Through the application process, you will have the
opportunity to register a user I.D. and Password and will have the ability to
enter a password-protected site to receive your sales statistics on a daily
basis.
Marilu.com will do its best to ensure accurate tracking
of referrals made by affiliates.
Affiliates will themselves be solely responsible for ensuring that
these special Links are formatted properly, a necessary prerequisite to
accurate tracking of referral sales.
Notwithstanding the above statement of responsibility by Marilu.com to
track sales, affiliates hereby acknowledge and accept that the tracking
system employed by Marilu.com is not 100% fail-safe and that there may on
occasion be instances of referral sales made that are not credited to an
affiliate for any of the following possible reasons:
a)
Failure by the affiliate to use the proper format of the
specially assigned Link in promotions, webpage links, banner ads and so on;
b)
Deliberate or accidental actions by customers to circumvent an
affiliate’s special Link so that our software is unable to accurately track
that sale;
c)
Deliberate or accidental actions by customers to remove or
restrict the cookie that we placed on the end-user’s computer so that our
software is unable to accurately track that sale;
d)
Bugs, glitches or crashes of the tracking software that render
it to inaccurately track sales for a period of time;
e)
Acts of nature that cause irretrievable data loss on the
computers and back-up disk media that store the commission information.
9. Policies and Pricing
Customers who buy products at our site through the Affiliate Program will be
deemed to be customers of Marilu.com. Accordingly, all of our rules,
policies, and operating procedures concerning customer orders, customer service,
and Marilu.com 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 Marilu.com products sold under the Affiliate
Program in accordance with our own pricing policies.
10. Publicity
You shall not create, publish, distribute, or permit any written material
that makes reference to us without first submitting such material to us and
receiving our prior written consent.
11. Licenses and Use of the Marilu.com Logos and Trademarks
a. WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO
(i) ACCESS OUR SITE THROUGH THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF
THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS, TO USE THE
MARILU.COM TRADEMARK AND LOGO AND SIMILAR IDENTIFYING MATERIAL RELATING TO US
(BUT ONLY IN THE FORM(S) THAT THEY APPEAR AS PROVIDED ) (COLLECTIVELY, THE
“LICENSED MATERIALS”), FOR THE SOLE PURPOSE OF PROMOTING MARILU.COM PRODUCTS
ON YOUR SITE. YOU MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN
ANY WAY. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS TO THE EXTENT
THAT YOU ARE A MEMBER IN GOOD STANDING OF OUR AFFILIATE PROGRAM.
b. You shall not make any specific use of any Licensed Materials for
purposes other than promoting Marilu.com Products on your site for
Marilu.com. You agree not to use the Licensed Materials in any manner that is
disparaging or that otherwise portrays us in a negative light. You will use
reasonable efforts to update to new versions of Licensed Materials as we make
them available. We reserve all of our rights in the Licensed Materials and of
our other proprietary rights. We may revoke your license immediately, by
giving you written notice.
c. You grant to us a non-exclusive license to utilize your names,
titles, and logos, as the same may be amended from time to time (the
“Affiliate Trademarks”), to advertise, market, promote, and publicize in any
manner our rights hereunder; provided, however, that we shall not be required
to so advertise, market, promote, or publicize. This license shall terminate
upon the effective date of the expiration or termination of this Agreement.
d. You may not register the words marilu.com, totalhealthmakeover.com,
THM, BodyVictory, Marilu Henner, Hennergy, or variations thereof for use in
any search engine, portal, advertising service or similar services service.
12. Obligations Regarding Your Site
a. You will be solely responsible for the
development, operation, and maintenance of your site and for all materials
that appear on your site. Such responsibilities include, but are not limited
to, the technical operation of your site and all related equipment; creating
and posting product reviews, descriptions, and references on your site and
linking those descriptions to our site; the accuracy and propriety of
materials posted on your site. Your site shall not (i) violate or infringe
upon the rights of any third party, (ii) be libelous, (iii) advocate or
promote sexually explicit material, (iv) not advocate or promote violence,
(v) not promote discrimination based on race, sex, religion, nationality,
disability, sexual orientation, or age, or (vi) not otherwise be illegal.
b. We disclaim all liability for all such 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.
13. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your Affiliate
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 notice of termination. You are only eligible to earn
referral fee payment(s) on sales occurring during the term, and referral fee
payment(s) earned through the date of termination will remain payable only if
the related Marilu.com 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.
14. Modification
We may modify any of the terms and conditions contained in this Agreement at
any time at our sole discretion. You will be notified by e-mail. Modifications
may include, but are not limited to, changes in the scope of available
referral fee payment(s) or the payment program in general, payment schedules,
payment procedures, and Affiliate Program rules. If any modification is
unacceptable to you, your only recourse is to terminate this agreement. Your
continued participation in the Affiliate Program following our posting of a
change notice or new agreement on our site will constitute binding acceptance
of the change.
15. Relationship of Parties
You and Marilu.com 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.
16. Disclaimers
We make no express or implied warranties or representations with respect to
the Affiliate Program or any Marilu.com Products sold through the Affiliate
Program (including, without limitation, warranties of fitness,
merchantability, non-infringement, or any implied warranties arising out of
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. Price
and availability information is subject to change without notice. All sales
are final.
THE SITE DOES NOT PROVIDE MEDICAL ADVICE.
This program is based on the writing of the New York Times best-selling
author Marilu Henner as found in her four books, The 30-Day Total Health
Makeover, Total Health Makeover, Healthy Life Kitchen and Healthy Holidays.
This program is designed to build a community and provide guidance for those
familiar with the contents of the aforementioned books. Hennergy, Marilu
Henner and the publisher of her books expressly disclaim responsibility for
any adverse effects arising from following the diet or exercise program in
the books without appropriate medical supervision. The Site is not intended
to replace medical advice or to be a substitute for a physician.
EXPORT RESTRICTIONS
Software from this Site is further subject to United States Export Controls.
No software from this Site may be downloaded or exported (i) into (or to a
national or resident of) Cuba, Libya, North Korea, Iran, Syria, or any other
country to which the United States has embargoed goods; or (ii) anyone on the
United States Treasury Department's list of Specially Designated Nationals or
the U.S. Commerce Department's Table of Deny Orders. By downloading or using
the software, you represent and warrant that you are not located in, under
the control of, or a national or resident of any such country or on any such
list. Further, as an approved affiliate
member, you represent that the primary focus of your site is to transact
business subject to United States Export Controls.
17. Representations and Warranties
You hereby represent and warrant to us as follows:
a. 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.
b. The execution, delivery, and performance by you of this Agreement
and the consummation by you of the transactions contemplated hereby will not,
with or without the giving of notice, the lapse of time, or both, conflict
with or violate (i) any provision of law, rule, or regulation to which you
are subject, (ii) any order, judgment, or decree applicable to you or binding
upon your assets or properties, (iii) any provision of your by-laws or
certificate of incorporation, or (iv) any agreement or other instrument
applicable to you or binding upon your assets or properties.
c. 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 your
trademarks in the manner contemplated herein, and such grant does not and
will not (i) breach, conflict with, or constitute a default under any
agreement or other instrument applicable to you or binding upon your assets
or properties, or (ii) infringe upon any trademark, trade name, service mark,
copyright, or other proprietary right of any other person or entity.
d. No consent, approval, or authorization of, or exemption by, or
filing with, any governmental authority or any third party is required to be
obtained or made by you in connection with the execution, delivery, and
performance of this Agreement or the taking by you of any other action
contemplated hereby.
e. There is no pending or, to the best of your knowledge, threatened
claim, action, or proceeding against you, or any affiliate of yours, with
respect to the execution, delivery, or consummation of this Agreement, or
with respect to your trademarks, and, to the best of your knowledge, there is
no basis for any such claim, action, or proceeding.
18. Confidentiality
Affiliate agrees that all business and financial information including but
not limited to product datafeeds, customer lists, referral fee percentages
and pricing and sales information, concerning us shall remain strictly
confidential and secret and shall not be utilized, directly or indirectly, by
you for its 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 through a source or sources other than you.
19. Sub-Affiliates
You may not obtain Sub-Affiliates by referring someone to Marilu.com who
subsequently signs up as an Affiliate.
Marilu.com does not offer a Sub-Affiliate program or multiple “tiers”
of affiliates. The Affiliate Program
is single-tiered.
20. 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 AFFILIATE 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 AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL REFERRAL FEE
PAYMENT(S) PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
21. Indemnification
You hereby agree to indemnify and hold harmless Marilu.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.
22. 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 WEBSITES THAT ARE SIMILAR TO OR
COMPETE WITH YOUR WEBSITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY
OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY
REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS
AGREEMENT.
23. Governing Law
This Agreement will be governed by the laws of the United States and the
State of California, without reference to rules governing choice of laws. Any
action relating to this Agreement must be brought in the federal or state
courts located in Los Angeles County, California, and you irrevocably consent
to the jurisdiction of such courts. 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 a provision or any other provision of this Agreement.
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