|
This Affiliate Agreement ("Agreement") contains the complete terms and conditions between
us, HealthNewsFlash and you, regarding your application to participate as an affiliate of
HealthNewsFlash ("Affiliate"), and the establishment of links from your Web site to our Web
site, "HealthNewsFlash.com." Execution by you of this Agreement as set forth below
constitutes your acceptance of the terms and conditions of this Agreement, and will be a
legally binding agreement between you and us.
1. Affiliate Program Enrollment. To become a participant in HealthNewsFlash Affiliate
Program, you will have to submit a complete Affiliate Program Application via our Web site.
We will evaluate your application and notify you of your acceptance or rejection. We may
reject your application if we determine, in our sole discretion, that your Web site is
not suitable 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, which by way of
example only, contains (i) sexually explicit, pornographic or obscene content (whether
in text or graphics), (ii) 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), (iii) graphic violence (which may include certain types of game sites),
(iv) content related to liquor, tobacco, firearms, drugs, gambling, crime or death,
(v) politically sensitive or controversial issues (e.g. abortion, capital punishment)
or other political content (e.g. lobbyists, political campaigns) or (vi) any unlawful
behavior or conduct. If we reject your application, you are welcome to reapply to
the Affiliate Program at any time, provided, you alter your Web site to delete all
offending content.
2. Setting Up Links. We will make available to you banner advertisements, button links
to our Web site and/or text links to our Web site, containing HealthNewsFlash's logo
and words identifying HealthNewsFlash ("Links") which you may display on your Web site,
provided you abide by the terms and conditions of this Agreement. In using the Links,
you agree that you will cooperate fully with us in order to establish and maintain
such Links. All Affiliate Web sites shall display such graphic images prominently
throughout your Web sites as you see fit and with our consent. A Link may only be
modified and/or expanded with our consent. Each Link connecting users of your Web site
to our Web site, will in no way alter the look, feel or functionality of our Web site.
We have the right, in our sole discretion, to monitor your Web site at any time and from
time to time to determine if you are in compliance with the terms of this Agreement.
3. Order Processing. We will process orders placed by customers who follow the Links from
your Web site to the HealthNewsFlash Web site. We reserve the right, in our sole
discretion, to reject orders that do not comply with certain requirements which we may
establish from time to time. All aspects of order processing and fulfillment, including
order entry, customer service, cancellations, returns and payment processing will be our
responsibility. We will track the amount of sales generated by your Web site and will
make this information available to you through our Web site. To permit accurate tracking,
reporting, and fee accrual, you must ensure that the Links between your Web site and our
Web site are properly formatted.
4. Commissions. We will pay you a commission equal to twelve (12%) percent for all new
customer purchases and five (5%) percent for repeat customer purchases (the "Commission
Rate") of the Net Sales to us by users of your Web site who purchase subscriptions on our
Web site, utilizing the Links between your Web site and ours, for subscriptions which we
provide to such customer and for which we have received full payment. Net Sales shall
include those amounts received by us for the sale of subscriptions less amounts collected
by us for sales, use or other taxes, and similar charges. A commission will only be
paid if the visitor to our Web site is tracked by the system from the time of the Link
to the time of the sale.
For a sale to generate a commission, the customer
must follow the Link from your Web site to our Web site, sign-up for our service and purchase a paid subscription within 90 days using our online ordering system, and remit full payment to us. However, no commission will be paid for subscriptions which are not paid for by
the customer.
We will pay your commission on a monthly basis. Within approximately 30 days following the end of each month, we will send you a check for the commission earned on the subscriptions purchased during the preceding month. If the commission payable to you for any month is less than fifty ($50.00) U.S. dollars, we will hold those commissions until such time as your commission earned equals at least fifty ($50.00) U.S. dollars. If a subscription sale that generated commission is refunded to the customer, we will deduct the corresponding commission from your next monthly payment.
HealthNewsFlash also retains the right to review all commissions for possible fraud, including but not limited to the use of software that generates real and fictitious email addresses for news letter and other subscriptions. Any incidence of fraud constitutes a breach of this Agreement, and HealthNewsFlash retains full authority to terminate this Agreement immediately.
5. Policies and Pricing. Customers who buy products through the Affiliate Program are customers
of HealthNewsFlash. All HealthNewsFlash rules, policies, and operating procedures concerning
customer orders, customer service, and sales applies to these customers. We may change our
policies and operating procedures at any time. For example, we will determine the prices to be
charged for subscriptions under the Affiliate Program in accordance with our own
pricing policies. Because price
changes may affect ads you already have listed on your Web site, you may not include
price information in your descriptions. We will use commercially reasonable efforts to present
accurate information, but we cannot guarantee the price of any particular subscription.
6. Non-Exclusive Limited License and Use of HealthNewsFlash Logos and Trademarks. We grant you
a non-transferable, non-exclusive, revocable license to (i) access our Web site through links
established solely as set forth under the terms of this Agreement and (ii) solely in connection
with such links, to use our logos, trade names, trademarks, service marks and similar identifying
material (collectively, "Licensed Materials"), solely for the purpose of selling subscriptions on your
Web site. You are not permitted to alter, modify or change the Licensed Material in any way
whatsoever. You may only use the Licensed Materials to the extent you are a member, in good
standing, of the Affiliate Program. You may not use any Licensed Materials for purposes other
than selling our products, without first submitting a sample of such use to us and receiving
our prior written consent. You are not permitted to use the Licensed Materials in any manner
that is disparaging or that otherwise portrays HealthNewsFlash or anyone else negatively. We
reserve all of our rights in the Licensed Materials and all other intellectual property rights.
We may revoke your license at any time by written notice to you. You acknowledge that, except
for the license expressly granted in this Agreement, you have not acquired and will not acquire
any right, interest or title to the Links or the Licensed Materials by reason of this Agreement
or through the exercise of any rights in the Links or the Licensed Material granted to you
under this Agreement. This license shall terminate upon the effective date of the expiration
or termination of this Agreement.
7. Non-Exclusive Limited License and Use of Affiliates Logos and Trademarks. You grant us a
non-exclusive license to utilize your names, titles and logos, trademarks and service marks
(collectively, "Affiliate Materials"), with prior written consent from you, to advertise, market,
promote and publicize in any manner under this Agreement. We will not, however, be required to
advertise, market, promote or publicize your Web site. You represent to us that you are the sole
and exclusive owner of the Affiliate Materials and have the right and power to grant to us this
license 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.
8. Obligations Regarding Your Web site. You will be solely responsible for the technical
operation of your Web site and all related equipment; creating and posting subscription descriptions
on your Web site and linking those descriptions to our Web site; the accuracy and appropriateness
of materials posted on your Web site; for ensuring that materials posted on your Web 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); and for ensuring that materials
posted on your Web site are not libelous or otherwise illegal.
You agree that your Web site will not, in any way, copy or resemble the look and feel of our Web
site nor will you create the impression that your Web site is our Web site or is a part of our Web
site. You also agree that your Web site will not contain any content of our Web site or any
materials which are proprietary to HealthNewsFlash, except (i) with our prior permission, or
(ii) materials obtained by you via the HealthNewsFlash Affiliate Web site in accordance with the
provisions hereof or the policies or instructions thereon. You further agree that your domain name
does not and will not contain the words "Health News Flash" and/or "HealthNewsFlash" or any
variation thereof. We disclaim all liability for such matters. Further, you will indemnify and
hold us harmless from all claims, damages, and expenses (including, without limitation, attorney
fees and expert witness fees) relating to the development, operation, maintenance, and contents
of your Web site.
9. Term. The term of this Agreement will begin upon our acceptance of your Affiliate Program
Application and will end when terminated by either Party. At any time, either Party may terminate
this Agreement, with our without cause, by giving the other Party written notice of termination.
If this Agreement is terminated for any 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.
Upon the termination of this agreement for any reason, you will immediately cease use of, and
remove from your Web site, all Links and Licensed Material and any other names, marks, symbols,
copyrights, logos, fanciful or other characters, designs, representations, figures, drawings,
photographs, ideas or other proprietary designations or properties owned, developed, licenses
or created by us and/or provided by or on behalf of us to you pursuant to this Agreement or in
connection with the Affiliate Program.
10. Modification. We may modify any of the terms and conditions contained in this Agreement, at
any time or in our sole discretion. Posting on our Web site of a change notice or a new agreement
is considered sufficient notice. Modifications may include, but are not limited to, changes in
the scope of available commission fees, commission 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 Web site will constitute binding acceptance of the change.
11. 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 commissions paid or payable to you under this Agreement.
12. Relationship of Parties. You and HealthNewsFlash 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 (a) have no authority to make or accept
any offers or representations on our behalf and (b) not make any statement, whether on your Web
site or otherwise, that reasonably would contradict anything in this Section.
13. Disclaimers. We make no express or implied warranties or representations with respect to the
Affiliate Program or any products or other items sold through the Affiliate 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 Web site will be uninterrupted or error-free, and will
not be liable for the consequences of any interruptions or errors.
14. Representations and Warranties. You hereby represent and warrant to us the following: (i) 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; (ii) 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 any provision of law, rule or regulation to which you are subject to, any
order, judgment or decree applicable to your or binding upon your assets or properties, any
provision of your by-laws or certificate of incorporation or any agreement or other instrument
applicable to you or binding upon your assets or properties; and (iii) you are an adult of at
least 18 years of age.
15. Confidentiality. We may disclose to you certain information as a result of your participation
as part of the Affiliate Program, which information we consider to be confidential (herein referred
to as "Confidential Information") which shall include, but not be limited to, any modifications to
the terms and provisions of this Agreement made specifically for your Web site and not generally
available to other members of the Affiliate Program, Web site, business and financial information
relating to HealthNewsFlash customer and vendor lists relating to HealthNewsFlash and pricing
and sales information for HealthNewsFlash and any members of the Affiliate Program, other than
you. 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 the same is required by law or legal process.
16. Indemnification. You hereby agree to indemnify, defend and hold harmless HealthNewsFlash,
its shareholders, officers, directors, employees, agents, affiliates, successors and assigns,
from and against any and all claims, 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 or are
based on (i) any claim or threatened claim that our use of the Affiliate Materials infringes
on the rights of any third party; (ii) the breach of any representation or warranty made by
you herein; or (iii) any claim related to your Web site.
17. Entire Agreement. 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.
18. Independent Investigation. You acknowledge that you have read this Agreement, have had an
opportunity to consult with your own legal advisors if you so desired, 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 competitive with your Web site. 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.
19. Miscellaneous. This Agreement will be governed by the laws of Canada
without reference to rules governing choice of laws. Any legal proceeding
of any nature brought by either Party against the other Party 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 a jury, before the federal or provincial courts located in Ottawa, Ontario
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 provision or any other provision of this Agreement. In any action
to enforce or interpret any provision of this Agreement, the prevailing party will be entitled
to recover its attorneys' fees and costs.
I indicate my approval of this Agreement and desire to become an Affiliate under these terms
and conditions by filling out and submitting the Affiliate Application Form.
|
|
|
