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 those that incorporates images or content
that is in any way unlawful, harmful, threatening, defamatory,
obscene, harassing or racially, ethically or otherwise
objectionable, such as sites that facilitate illegal activity,
depict sexually explicit images; promote violence; promote
discrimination based on race, sex, religion, nationality,
disability, sexual orientation, or age; promote illegal activities
or incorporates any materials which infringe or assist others to
infringe on any copyright, trademark or other intellectual
property rights (collectively "Content Restrictions").
If we reject your application, you are welcome to reapply to
the Program at any time. You should also note that if we accept
your application and your site is thereafter determined (in our
sole discretion) to be unsuitable for the Program, we may
terminate this Agreement.
- Using our Links on Your
Site
Once you have been notified that your site has been accepted into
the Program, we will make available to you banner advertisements
for our site, button links to our site and/or text links to our
site, containing Vitalityweb™'s, BackSport Health
Products™'s or The-Backstore.com's logo and words identifying
Vitalityweb™, BackSport Health Products™'s and/or
The-Backstore.com (these links sometimes being referred to herein
collectively as "Links", or individually as a Link"), which,
subject to the terms and conditions hereof, you may display on
your site. In utilizing the Links, you agree that you will
cooperate fully with us in order to establish and maintain such
Links.
All Affiliate Sites shall display our graphic images
prominently throughout your site as you see fit and with our
consent. You shall not alter, modify or expand the links in any
way; however, a Link may be modified and/or expanded with our
written consent. Each Link connecting users of your site to our
site, will in no way alter the look, feel or functionality of our
site. 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.
To permit accurate tracking, reporting, and referral fee
accrual, we will provide you with special "tagged" URL link
formats to be used in all links between your site and our site.
You must ensure that each of the links between your site and our
site properly utilizes such special URL link formats. Links to our
site placed on your site pursuant to this Agreement and which
properly utilize such special link formats are referred to as
"Special Links." You will only earn referral fees with respect to
activity on our site occurring directly through Special Links: we
will not be liable to you with respect to any failure by you to
use Special Links, including to the extent that such failure may
result in any reduction of amounts which would otherwise be paid
to you pursuant to this Agreement.
- Order
Processing
We will be responsible for processing Product orders placed by
customers who follow Special Links from your site to our site. 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.
Among other things, we will prepare order forms, process payments,
cancellations, and returns, and handle customer service. We will
track sales made to customers who purchase Products using Special
Links from your site to our site and will make available to you
reports summarizing this sales activity. The form, content, and
frequency of the reports may vary from time to time in our
discretion. You may see a sample statistics page at:
https://st7.yahoo.com/cgi-bin/master/CLINKMGR.backstore/seelink/NvJcTg+q9TB2LYCaJ
- Referral
Fees
We will pay you (in accordance with Sections 5 and 6 below)
referral fees on Net Sales to third parties. For a Product sale to
be eligible to earn a referral fee, the customer must follow a
Special Link from your site to our site, select and purchase the
Product using our automated ordering system, accept delivery of
the Product at the shipping destination, and remit full payment to
us. We will not, however, pay referral fees on any Products that
are added to a customer's Shopping Cart or are purchased via our
web site after the customer has reentered our site (other than
through a Special Link), even if the customer had previously
followed a link from your site to our site. Gift certificates are
not eligible to earn referral fees. For the purposes of this
Agreement "Net Sales" shall mean sales revenues less amounts
collected by us for sales taxes, duties, shipping, handling,
credit card fees and similar charges. The Referral Fee is subject
to change at any time or from time to time, in our sole and
absolute discretion. You will be notified of any change in the
Referral Fees. Net Sales will also be reduced for amounts due to
credit card fraud, bad debts, cancellations and credits for
returned goods. A commission will only be paid if the visitor to
our site is tracked by the system from the time of the Link to the
time of the sale. No commission will be paid if the visitor to our
site cannot be tracked by our system. The Program is intended for
commercial use only, and you may not purchase products through the
Program for your own use. Such purchases may result (in our sole
discretion) in the withholding of referral fees or the termination
of this Agreement. Products that are eligible to earn referral
fees under the rules set forth above are referred to as
"Qualifying Products." The following example scenarios are for
purposes of illustration only. We maintain the sole right to
determine when and if a commission payment is due. (i) if a
visitor comes to our site once from a link from Site A and then
later returns to our site from a link from Site B, all commissions
will be paid to Site B; (ii) if a visitor comes to our site from
Site A, purchases nothing, and later returns directly to our site
to purchase product, no commission will be paid.
Only Product that is sold by us (to users of your site through
Links to our site), shipped to a customer and for which we have
received full payment will qualify for a commission. For a sale to
generate a commission, the customer must follow the Link from your
site to our site, purchase the product or products in question
using our online ordering system, accept delivery of the item at
the shipping destination, and remit full payment to us.
- Referral Fee
Schedule
You will earn referral fees based on Qualifying Revenues according
to referral fee schedules to be established by us. "Qualifying
Revenues" are revenues derived by us from our sales of Qualifying
Products, excluding costs for shipping, handling, gift-wrapping,
taxes, service charges, credit card processing fees, and bad debt.
The current referral fee schedule is:
- 10% of Qualifying Revenues from the sale of individual
products with a price of $1000 or less.
- 5% of Qualifying Revenues from sales of individual products
with a price of greater than $1000.
- Referral Fee
Payment
We will pay you referral fees on a quarterly basis. Approximately
30 days following the end of each calendar quarter, we will send
you a check for the referral fees earned on our sales of
Qualifying Products that were shipped during that quarter, less
any taxes that we may be required by law to withhold. However, if
the referral fees payable to you for any calendar quarter are less
than $50.00, we will hold those referral fees until the total
amount due is at least $50.00 or (if earlier) until this Agreement
is terminated. If a Product that generated a referral fee is
returned by the customer, we will deduct the corresponding
referral fee from your next quarterly payment. If there is no
subsequent payment, we will send you a bill for the referral fee.
- Policies and
Pricing
Customers who buy products through this Program will be deemed to
be customers of Vitalityweb, BackSport Health Products and
The-Backstore.com. Accordingly, all Vitalityweb rules, policies,
and operating procedures concerning customer orders, customer
service, 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.
- Identifying Yourself as an
Associate
We will make available to you a small graphic image that
identifies your site as a Affiliate Program participant. You must
display this logo or the phrase "In association with Vitalityweb's
The-Backstore" 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 Vitalityweb's The Backstore.com home page at
https://www.the-backstore.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.
- Limited
License
We grant you a nonexclusive, revocable right to use the graphic
image and text described in this agreement and such other images
for which we grant express permission, solely for the purpose of
identifying your site as a Program participant and to assist in
generating Product sales. You may not modify the graphic image or
text, or any other of our images, in any way. We reserve all of
our rights in the graphic image and text, any other images, our
trade names and trademarks, and all other intellectual property
rights. We may revoke your license at any time by giving you
written notice.
- Non-Exclusive Limited License
and Use of Affiliates Logos and Trademarks.
You grant us a non-exclusive license to utilize your names,
titles, logos, and trademarks (collectively the "Affiliate
Marks"), and 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.
- 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 written consent.
- Responsibility for Your
Site
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 catalog, 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), and
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.
- 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. Upon the 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 Vitalityweb, BackSport Health
Products and The-Backstore.com 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. You are only
eligible to earn referral fees on our sales of Qualifying Products
occurring during the term, and referral fees earned through the
date of termination will remain payable only if the related orders
are not canceled or returned. We may withhold your final payment
for a reasonable time to ensure that the correct amount is paid.
- 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, referral fee 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.
- 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.
- 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 this Agreement.
- 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.
- 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.
- 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"). For purposes of this Agreement, the
term "Confidential Information" shall include, but not be limited
to, any modifications to the terms and provisions of this
Affiliate Program Agreement made specifically for your site and
not generally available to other members of the Affiliate Program,
website, business and financial information relating to
Vitalityweb™, BackSport Health Products™,
The-BackStore.com™, customer and vendor lists relating to
Vitalityweb™, BackSport Health Products™,
The-BackStore.com™ and pricing and sales information for
Vitalityweb™, BackSport Health Products™,
The-BackStore.com™ and any members of the Affiliate Program,
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 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. We make no warranty, expressed 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.
- Indemnification
You hereby agree to indemnify, defend and hold harmless
Vitalityweb™, BackSport Health Products™,
The-BackStore.com™, 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) 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 representation
or warranty made by you herein; or (iii) or any claim related to
your site.
- 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.