The parties referred to in this Agreement shall be defined as follows:
a) Company, Us, We: As we describe above, we’ll be referred to as the Company. Us, we, our, ours and other first-person pronouns will also refer to the Company, as well as all employees or legal agents of the Company.
b) You, the Affiliate: You will be referred to as the “Affiliate.” You’ll also be referred to throughout this Agreement with second-person pronouns such as You, Your, or Yours.
c) Parties: Collectively, the parties to this Agreement (the Company and You) will be referred to as “Parties” or individually as “Party.”
d) Affiliate Program: The program we’ve set up for our affiliates as described in this Agreement.
e) Affiliate Application: The fully completed form which must be provided to us for consideration of your inclusion in the Affiliate Program.
f) Website: The primary website we’ve noted above will be referred to as Website.
g) The program for which you participate in is the Elements Health and Wellness Affiliate Program (the “Affiliate Program” or “Program”).
The term of this Agreement will begin upon our acceptance of your Affiliate 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. You are only eligible to earn referral fees on referrals occurring during the term.
Enrollment in the Program
You will submit a complete Affiliate Program application from our site. We may reject your application (at our sole discretion) if we feel your site is unsuitable or inconsistent with the mission of Elements Health and Wellness. If your site is accepted, Elements Health and Wellness may terminate this Agreement anytime thereafter if your site is determined (at our sole discretion) to be unsuitable for the Program, even if your site has not changed since the time that your Affiliate Program application was accepted.
Promotion of Our Affiliate Program
Upon your acceptance as an Affiliate Site, we will make available to you a variety of graphic and textual links (the “Links”), which, subject to the terms and conditions hereof, you may display as often and in as many areas of your approved site as you desire. The Links will serve to channel potential buyers to our site.
Elements Health and Wellness Agrees to:
- Pay Affiliate a commission (see Referral Commissions for commission details) for each qualified online order completed via your site. Qualified online orders must be made within the return day “window” of 15 days and recognized by Commission Junction.
- Work to pay Affiliate on a monthly basis when commissions due have reached a minimum of $50.00. Accounts with a balance of less than $50.00 will roll over to the next month. Elements Health and Wellness sends out payments to affiliates on or around the 1st of every month for the previous month’s commissions.
Affiliate Agrees to:
- Place Elements Health and Wellness banners and/or text links on your site.
- Observe Elements Health and Wellness’s exclusive right of ownership as to the names of its property , including but not limited to its trademarked name and any variations thereof within all pay-for-placement and other search engines. Elements Health and Wellness grants a limited right to the use of its trademarked names solely for promotional purposes in conjunction with the relationship as described in this agreement.
- Remove all links regarding Elements Health and Wellness promotions on the date such promotions end, and agree to forfeit any commissions earned after the end date of the promotions if you continue to post such links.
- Have sole responsibility for the development, operation, and maintenance of your site and for all the materials that appear on your site.
- Ensure that all materials posted on your site are not illegal and do not infringe on the rights of any person or entity of any kind. We disclaim all liability for all materials on your site.
- Indemnify, defend, and hold us harmless from all claims, damages, and expenses relating to the development, operation, and contents of your site.
- Make sure that your site does not copy or resemble the look and feel of the Elements Health and Wellness Web site or create the impression that your site is our site or a part of our site
- If any immoral or unethical links are added to your site pointing to Elements Health and Wellness , we reserve the right to pursue all legal courses of action against you to the fullest extent possible under the law and you will be responsible for returning all commissions earned as a result of such links to Elements Health and Wellness.
- Remain active and consistent with promoting, advertising, and marketing Elements Health and Wellness products and merchandise. If affiliate fails to make a sale within 3 months of the official start date or 6 months from a last commissioned sale, affiliate account will be closed and deleted.
Elements Health and Wellness Affiliate Program pays commissions for each qualified net sale. The affiliate team will audit affiliate referred orders to ensure they are valid.
Elements Health & Wellness will issue payment to affiliates every month after the end of each calendar month for all commissions earned on sales during the prior month.
All affiliates who have met the $50 minimum payout requirement will receive the full amount of commissions due, less any amount Elements Health & Wellness determines, in its sole discretion not validly earned from a proper use of the links on an affiliate’s Website.
Payments will be issued via Elements Health & Wellness only, payable to the affiliate at the address submitted by the affiliate in his or her online registration.
Elements Health & Wellness will be solely responsible for tracking referrals using special software that communicates with the specially encoded URLs assigned to affiliates.
Furthermore, Elements Health & Wellness uses a “last Affiliate wins” system, under which a particular Internet user is assigned to the last affiliate site he visited prior to entering the Elements Health & Wellness Web site and then completes a transaction with Elements Health & Wellness. For instance, the user visits Affiliate Website A; then enters Elements Health & Wellness but does not complete a transaction; then the user later visits Affiliate Website B; finally enters Elements Health & Wellness again and this time submits an order. In this case the consumer is assigned to Affiliate B, and the commission is paid to Affiliate B
Elements Health & Wellness will endeavor to do its best to ensure accurate tracking of referrals made by affiliates. Affiliates will themselves be solely responsible for ensuring that these URLs are formatted properly, a necessary prerequisite to accurate tracking of referrals. Notwithstanding the above statement of responsibility by Elements Health & Wellness to track referrals, affiliates hereby acknowledge and accept that the tracking system employed by Elements Health & Wellness is not 100% fail-safe and that there may on occasion be instances of referrals made that are not credited to an affiliate for any of the following reasons:
- Failure by the affiliate to use the proper format of the specially assigned URL in promotions, webpage links, banner ads and so on
- Deliberate or accidental actions by customers to circumvent an affiliate’s special URL so that our software is unable to accurately track the referral
- Bugs, glitches or crashes of the tracking software that render it unable to accurately track referrals for a period of time
- Acts of nature that cause irretrievable data loss on the computers and back-up media that store the commission information
- As such, affiliates will not hold Elements Health & Wellness liable to compensate for any claimed commissions that were not tracked and recorded by the tracking software.
Pay-per-click search engines
We do not allow our affiliates to bid on any keywords we are bidding on.
Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or you, respectively, or any of our Affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party 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 such party hereto or its affiliates. This survives the term of the agreement.
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 Relationship, 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.
We grant you a nonexclusive, nontransferable, revocable right to link to our site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of linking your site to our site, solely for the purpose of identifying your site as a participant in the Program and assisting in promoting Elements Health & Wellness services. You may not alter, modify, or change the Links in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Elements Health & Wellness Affiliate Program. We may revoke your license anytime by giving you written notice.
We make no express or implied warranties or representations with respect to the Elements Health & Wellness Web site or the Elements Health & Wellness 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.
The terms of this Agreement will begin upon our acceptance of your application. This Agreement shall commence on the date of approval of your Affiliate Program application and shall continue thereafter in full force and effect until terminated at any time by either party by giving the other party written notice of termination. 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 Elements Health & Wellness trademarks, or those of any Elements Health & Wellness company, 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.
Elements Health & Wellness reserves the right to terminate any accounts we deem as “inactive” accounts. An affiliate account would be considered “inactive” if it fails to generate any sales for a period of at least six (6) months (or) If affiliate fails to make a sale within 3 months of the official start date. In the event of account termination (due to inactivity), affiliates will forfeit any commission balance less than the minimum commission payout amount of $25.00.
We may modify any of the terms and conditions of this Agreement at any time. You will be notified by e-mail, using the e-mail address currently listed in your Affiliate Profile, and a change notice will be posted on our site. If the modifications are unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in this Affiliate Program after a change notice has been posted will constitute binding acceptance of the change.
You and Elements Health & Wellness 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.
Representations and Warranties
You hereby represent and warrant to us as follows:
- This Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
- The development, operation, and contents of your site do not infringe upon the copyright, trademark, or any other right of any person or entity.
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 Elements Health & Wellness Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
If you commit fraud or falsify information in connection with the submission of referrals to Elements Health & Wellness services through the Links on your site, this Agreement will be terminated immediately. In addition, you will be liable to Elements Health & Wellness for any and all damages that Elements Health & Wellness suffers as a result of such actions. You will also be responsible for returning to Elements Health & Wellness all commissions received for fraudulent/falsified referrals submitted, and we will not hesitate to pursue all legal courses of action against you to the fullest extent possible under the law.
Affiliates will be removed from the Elements Health & Wellness Affiliate Program and forfeit any pending commissions if they are utilizing or distributing software downloads that enable diversions of commission from other affiliates in our program.
Such systems include those commonly known as “ParasiteWare” or that carry out functions commonly known as “Parasitic Marketing.” ParasiteWare is software (including, but not restricted to, browser helpers, browser plug-ins, toolbars and pop ups/sliders) that knowingly or unknowingly undermines or removes another affiliate’s ability to compete by changing, intercepting or redirecting an affiliate link. ParasiteWare may be installed knowingly or unknowingly by the end user, altering normal web browser functions and/or installing a third party application that works through the user’s altered browser.
Affiliate also agrees not to use any kind of technique that intercepts natural searches to redirect traffic through installed software, thereby causing commission-tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the natural search. (Natural search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot, LookSmart and similar search or directory engines)
Affiliate agrees not to use any technique or marketing program that might reasonably be considered “predatory” or manipulative. Elements Health & Wellness reserves the right to determine whether a technique or program is unreasonable. In the event of a breach of this Agreement by Affiliate and/or a third party or licensee, Elements Health & Wellness shall immediately terminate this agreement, and, in addition to all other remedies available to it, Elements Health & Wellness shall have the right to refuse to make payments to an Affiliate as a result of the Affiliate’s efforts promoting Elements Health & Wellness in such a manner.
Affiliate agrees to indemnify, defend and hold Elements Health & Wellness harmless from any cost, expense or liability arising out of any breach or alleged breach of your obligations under this Anti-Predatory Policy.
Affiliate agrees to comply with the requirements of the CAN-SPAM Act of 2003 (the “Act”) in its distribution of e-mail that contains messaging regarding Elements Health & Wellness. More specifically, e-mail must meets this criteria:
- May only be sent to recipients who have expressly agreed directly with Affiliate, in advance, to receive such communications from Affiliate.
- Must clearly and conspicuously identify that the message is an advertisement or solicitation, unless recipient has given prior affirmative consent to receipt of the message. Affirmative consent means that the recipient expressly consented to receive the message either in response to a clear and conspicuous request for such consent or at the recipient’s own initiative.
- Must clearly and conspicuously notify the recipient of the opportunity to decline to receive further commercial e-mail from Affiliate
- Must provide a valid physical postal address of Affiliate
- Must provide a functioning return e-mail address or other Internet-based mechanism, clearly and conspicuously displayed, that a recipient may use to submit, in a manner specified in the commercial e-mail, a reply e-mail or other Internet-based mechanism a request not to receive future commercial e-mail from Affiliate. The return address or Internet-based mechanism must be capable of receiving such messages for at least 30 days after the transmission of the original message. Affiliate may not send subsequent commercial e-mails more than ten (10) business days after the recipient’s request not to receive further e-mails has been received (unless there is a subsequent affirmative consent by the recipient to receive such e-mails.) Once Affiliate receives such a request, Affiliate may not sell, lease, exchange or otherwise transfer or release the e-mail address of the recipient.
- May not contain materially false or materially misleading header information, or deceptive subject heading.
- May not contain sexually oriented material.
In addition, in the event of a breach of this E-mail Agreement by Affiliate and/or a third party or licensee, in addition to all other remedies available to it, Elements Health & Wellness shall have the right to refuse to make payments to an Affiliate as a result of the Affiliate’s efforts promoting Elements Health & Wellness, which efforts cannot be verified by Affiliate as having complied with the terms and conditions of this E-mail Agreement.
Affiliate agrees to indemnify, defend and hold Elements Health & Wellness harmless from any cost, expense or liability arising out of any breach or alleged breach of your obligations under this E-mail Agreement.
You hereunder may not assign this Agreement and the rights and obligations without prior written consent of Elements Health & Wellness.
Reservation of Rights
Elements Health & Wellness may terminate this Agreement at any time if your site is determined (at our sole discretion) to be unsuitable for the Program, even if your site has not changed since the time that your Affiliate Program application was accepted. Elements Health & Wellness also reserves the right to monitor Affiliate sites at any time to determine whether they are in compliance with this Agreement.
The laws of the United States and the State of North Carolina will govern this Agreement, 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 Asheville, NC 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.