Drawing on the Back
MEMBERS ONLY SECTION
ABUNDANT HEALTH RESOURCES, INC. AFFILIATE OPERATING AGREEMENT
This Agreement contains the terms and conditions that apply to your participation as an online Affiliate (“Affiliate,” “you,” or “your”) in the Affiliate Program of Abundant Health Resources, Inc. (“Abundant Health,” “we,” “us,” or “our”) and the establishment of links from your affiliate website (the “Affiliate Website”) to our website Abundant Health Resources, Inc. (www.abundanthealth.com).
1. Enrollment in the Affiliate Program. To begin the enrollment process, you will submit the application by mail, fax or email. Abundant Health will evaluate your application and will notify you of your acceptance or rejection in the program. Abundant Health may accept or reject your application at its sole discretion.
2. Affiliate Links. Affiliate will be issued an “Affiliate Link” (sometimes referred herein simply as “Link”) which, subject to the terms and conditions hereof, you may display as often and in as many areas of your site as you desire. The Link will serve to identify your site as a member of our Affiliate Program and will establish a link from your site to ours. The Link is a unique URL which allows Abundant Health to identify visitors from Affiliate’s site as originating from Affiliate. These visitors are tracked with this unique URL, and sales are recorded with the appropriate Affiliate ID. To receive referral fees, Affiliate must use the provided Affiliate Link. The URL may be in various forms, such as a banner, graphic image or text link.
3. Displaying of Affiliate Link. Affiliate is responsible for displaying and maintaining the Affiliate Link in the following manner:
a. Use Abundant Health Provided Link. Affiliate agrees to display in Affiliate’s site only that Affiliate Link which is provided by Abundant Health.4. Responsibilities of Affiliate. As an Affiliate, you are responsible for the following:
a. Providing Accurate Information. Affiliate shall provide Abundant Health with accurate, complete and updated registration information.
5. Prohibited Affiliate Conduct: Affiliate shall not engage in the following activities:
a. Modification of Affiliate Link/Interactive Features. You will not in any way modify, redirect, suppress, or substitute the operation of any Link, button, or other interactive feature of Abundant Health.6. Responsibilities of Abundant Health. Abundant Health will be responsible for the following:
a. Providing Information Necessary for Linking. Abundant Health will provide all information necessary to allow Affiliate to make appropriate Links from Affiliate’s site to Abundant Health website(s).
7. Referral Fees. Affiliates will receive Referral Fees subject to the following terms and conditions.
a. Calculating Referral Fees/Qualifying Purchases. Only subscriptions to Abundant Health’s website(s) and/or library (“Subscriptions”), and products and services) that Abundant Health chooses to offer through our website(s) (“Products & Services”) that are (a) sold by Abundant Health, (b) purchased by users and/or Affiliate linking directly to Abundant Health’s site from Affiliate’s site pursuant to the Affiliate Link (“Linked Users”), (c) delivered to a customer, and (d) for which Abundant Health has received full payment will qualify for a referral fee
8. Referral Fee Payments. Although the Abundant Health Affiliate Program is not limited to the United States, all payments will be made in U.S. dollars. When the total Referral Fee payment(s) due to Affiliate (based on Section 7 above) exceeds $50.00 US at the end of any calendar quarter, Affiliate will be paid by a company check for the applicable Referral Fees. Such Referral Fee checks will be sent approximately forty-five (45) days after the end of each calendar quarter. Referral Fee payments totaling less than $50.00 US will be withheld for the next occurring calendar quarter when total accumulated Referral Fees reach or exceed the $50.00 US threshold. If a sale is cancelled or refunded after Referral Fee payments are already paid to Affiliate for said sale, the related Referral Fee will be deducted from the next subsequent payment.
a. Required Affiliate Payment Information. As a condition to payment of a Referral Fee, Affiliate must provide Abundant Health information as is reasonable necessary for Abundant Health to process payment to Affiliate in accordance with applicable laws and regulations. This includes, but is not limited to, Affiliate’s Social Security Number or Tax Identification Number (for businesses located in the US).9. Quarterly Financial Reports/Payments. A financial report indicating sales and corresponding Referral Fees due will be provided to Affiliate on a quarterly basis, approximately forty-five (45) days after the end of each calendar quarter, with or without payment. Payment for Referral Fees will accompany the financial report if the Referral Fee total meets the $50.00 US threshold amount outlined above in Clause 8.
10. Customers/Policies. Customers who buy Subscriptions, Products and/or Services at Abundant Health’s website(s) through the Affiliate Program will be deemed to be customers of Abundant Health. Accordingly, all of Abundant Health’s rules, policies, and operating procedures concerning, customer service, customer orders and sales will apply to those customers.
11. Pricing/Terms. Abundant Health’s pricing of Subscriptions, Products & Services is totally within Abundant Health’s discretion and Abundant Health reserves the right to change the pricing structure, terminate any special offers, discontinue Subscriptions, Products and/or Services, or change the terms under which Subscriptions, Products and/or Services are offered at any time without any advance notice to Affiliate.
12. Advertising and Publicity. Affiliate agrees to abide by the advertising and publicity guidelines of Abundant Health as outlined below.
a. Placement of Link. Affiliate may place Abundant Health’s Link anywhere on Affiliate’s site as Affiliate sees fit, within your newsletters, or within non-spam emails.13. Licenses and Use of Abundant Health’s and Related Logos and Trademarks.
Abundant Health grants Affiliate the following license and use of Licensed Materials.
a. LICENSE GRANTED: ABUNDANT HEALTH GRANTS AFFILIATE A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINK(S) AND, (ii) TO USE THE ABUNDANT HEALTH’S TRADEMARK, LOGO, AND SIMILAR IDENTIFYING MATERIAL RELATING TO US IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. SAID TRADEMARK, LOGO, AND SIMILAR MATERIAL CAN ONLY BE USED IN THE FORMS AS PROVIDED BY ABUNDANT HEALTH (COLLECTIVELY, THE “LICENSED MATERIALS”) FOR THE SOLE PURPOSE OF PROMOTING ABUNDANT HEALTH’S SUBSCRIPTIONS, PRODUCTS AND SERVICES ON AFFILIATE’S 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.14. License and Use of Affiliate’s Trademark. Affiliate grants to Abundant Health 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.
15. Obligations Regarding Affiliate’s Site. Affiliate is responsible for operating and maintaining Affiliate’s site at all times in the below described manner.
a. Site Maintenance. Affiliate will be solely responsible for the development, operation, and maintenance of Affiliate’s site and for all materials that appear on your site. Such responsibilities include, but are not limited to, the technical operation of Affiliate’s site and all related equipment; creating and posting Product reviews, descriptions, and references on your site and linking those descriptions to Abundant Health website(s); and the accuracy and propriety of materials posted on Affiliate’s site.16. Relationship of Parties. The Affiliate is an independent contractor, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Parties. Affiliate will have no authority to make any statements, whether on its website or otherwise, commitments, or representations, nor to accept any offers on behalf of Abundant Health. Abundant Health shall not be bound by, or become liable for, any representation, commitment, act or omission whatsoever of the Affiliate contrary to the provisions hereof.
17. Warranties and Representations. Affiliate hereby warrants and represents to Abundant Health the following:
a. Right to Execute this Agreement. The person submitting and/or signing this Agreement has the legal authority to do so; this Agreement has been duly and validly executed and delivered by Affiliate; this application constitutes Affiliate’s legal, valid, and binding obligation, enforceable against Affiliate in accordance with its terms.
19. Disclaimers. Abundant Health makes no warranties expressed or implied with regard to the Affiliate Program except as outlined in this agreement.
a. No Express or Implied Warranties. Abundant Health makes no express or implied warranties or representations with respect to the Affiliate Program or any Abundant Health Products, goods or services sold through the Affiliate Program, including without limitation, warranties of fitness for a particular purpose, merchantability, non-infringement, or any implied warranties arising out of course of performance, dealing, or trade usage. All Products, goods, and services are provided AS IS with respect to Abundant Health.20. Limitations of Liability and Remedies. ABUNDANT HEALTH WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, USE, OR DATA, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR TO PARTICIPATION IN THE AFFILIATE PROGRAM, EVEN IF ABUNDANT HEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, ABUNDANT HEALTH’S AGGREGATE LIABILITY, WHETHER BASED ON CONTRACT, TORT, WARRANTY, STRICT LIABILITY, OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE AFFILIATE PROGRAM SHALL NOT EXCEED THE TOTAL REFERRAL FEE PAYMENTS PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT.
21. Indemnification. Affiliate hereby agrees to indemnify and hold harmless Abundant Health, its subsidiaries, affiliates, directors, officers, employees, agents, representatives, partners, members, and other owners against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to this Agreement that are based upon (i) any claim that our use of the Affiliate Trademarks or any other material provided by Affiliate infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation or alleged breach of any representation, warranty, covenant or provision of this Agreement, or (iii) any claim related to Affiliate’s site, including without limitation, content therein not attributable to Abundant Health.
22. Term of Agreement/Termination/Final Payments. The term of this Agreement will commence upon Abundant Health’s acceptance of your Affiliate Program application and will end when terminated by either Party. Either Abundant Health or the Affiliate may terminate this Agreement at any time, with or without cause, by giving the other Party written notice of termination. If the Agreement is terminated, any Referral Fees due Affiliate at the time of termination shall become payable and due so long as the terms of this Agreement were not violated by Affiliate. However, final payment of Referral Fees may be withheld for a reasonable time in order to allow for the potential cancellation of Services and/or the return of Products, and to ensure that the correct amount is paid.
23. Grounds for Termination/Withholding of Referral Fees. If Abundant Health determines, in its sole discretion, that Affiliate has or is engaging in any activities and/or conduct in violation of this Agreement, Abundant Health may, without limiting any other rights or remedies available to us, withhold any Referral Fees otherwise payable to Affiliate under this Agreement and/or charge back any Referral Fees already paid to Affiliate that was attributed to such conduct, as well as suspend and/or terminate this Agreement. Such activities and/or conduct include, but are not limited to, the following:
a. Breaching this Agreement: Breaching or violating any of the provisions of this Agreement, including but not limited to, the posting of posting or serving of any advertisements or promotional content around or in conjunction with the display of Abundant Health in violation of Item 5(d) above, or by utilizing SPAM to promote Abundant Health in violation of Items 5(f) and 11(f) above.24. Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or any breach thereof shall be submitted to binding arbitration pursuant to the Commercial Rules of the American Arbitration Association (“AAA”) before a single, impartial arbitrator, mutually agreed upon by both Parties, knowledgeable in internet law. The sole venue for arbitration shall be Sacramento, California. The determination of the arbitrator in such proceedings shall be final, binding and unappealable. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The prevailing party as determined by the arbitrator shall be entitled to reimbursement for costs and reasonable attorney’s fees.
EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
The application of the United Nations Convention on the International Sale of Goods is expressly excluded.
25. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the United States of America and the State of California, without regard to its conflict of laws principles.
26. Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreement.
27. Modifications. Abundant Health may modify and/or update any of the terms and conditions contained in this Agreement at any time, for any reason, without prior notice, at our sole discretion. Modifications may include, but are not limited to, changes in the scope of available Referral Fee payments, payment schedules, payment procedures, the payment program in general, and Affiliate Program rules. If any modification is unacceptable to you, Affiliate’s only recourse is to terminate this Agreement. Affiliate’s continued participation in the Affiliate Program, promoting or marketing Abundant Health’s Subscriptions, Products and/or Services, as well as the acceptance of Referral Fees following Abundant Health’s posting of a change notice or new agreement on our website will constitute binding acceptance by Affiliate of any and all modifications. Affiliate agrees to review this Agreement for any modifications and/or updates monthly. The date of the last modifications and/or updates is posted at the end of this Agreement.
28. Notices. All Notices required or permitted to be made under this Agreement shall be in writing.
a. Notices to Abundant Health: Notices to Abundant Health shall be sent to James Mally at 8421 Auburn Boulevard, Suite #275. Citrus Heights, CA 95610 or by e-mail to email@example.com. Such Notice shall be deemed to have been duly delivered and received either (a) on the day of delivery, if hand delivered or delivered by overnight courier, (b) on the fifth (5th) day after the date sent, if sent by prepaid certified mail, or (c) on the calendar day following the date of transmission, if sent by electronic mail.29. Assignment. Affiliate may not assign this Agreement, by operation of law or otherwise, without the prior written consent of Abundant Health.
30. Heirs, Successors, and Assigns. This Agreement shall be binding on, ensure to the benefit of, and be enforceable against the Parties and their respective successors, heirs, and assigns.
31. Waiver. Abundant Health’s failure to enforce Affiliate’s strict performance of any provision of this Agreement will not constitute a waiver of Abundant Health’s right to subsequently enforce any such provision or any other provision of this Agreement.
32. Severability. If any provision of this Agreement is found to be invalid, illegal, or unenforceable any invalidity, illegality or unenforceability will affect only that provision and will not make any other provision of this Agreement invalid, illegal or unenforceable. Such provision shall be modified, amended or limited only to the extent necessary to render it valid, legal and enforceable.
34. Acceptance of Agreement. AFFILIATE ACKNOWLEDGES THAT AFFILIATE HAS READ THIS AGREEMENT AND AGREES TO ALL OF ITS TERMS AND CONDITIONS. AFFILIATE UNDERSTANDS THAT ABUNDANT HEALTH MAY AT ANY TIME, DIRECTLY OR INDIRECTLY, SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR FROM THOSE OPERATING WEBSITES THAT ARE SIMILAR TO OR COMPETE WITH AFFILIATE’S WEBSITE. AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIA TE PROGRAM AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
________________________________________________________________________ © Abundant Health Resources, Inc. 05/09/10