THIS IS A LEGAL AGREEMENT BETWEEN YOU AND DELTECH MANUFACTURING (FitnessDestination.com). BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
- Overview
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in the Deltech Manufacturing inc. Affiliate Program. The purpose of this Agreement is to allow HTML linking between your web site and the Fitnessdestination.com web site. Please note that throughout this Agreement, "we," "us," and "our" will mean Deltech Manufacturing, Inc. (www.fitnessdestination.com), and "you," "your," and "yours" will mean the affiliate.
- Affiliate Obligations
- To begin the enrollment process, you will complete and submit the online application. We will evaluate your application to join the program and 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, for example, sites that:
- promote sexually explicit materials
- promote violence
- promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age
- promote illegal activities or violate intellectual property rights
- or from applicants who we prefer not to be associated with
- As a member of www.fitnessdestination’s Affiliate Program, you will be notified via email when an order is credited to your account. When your account accumulates to $50, we will send payment to you.
- You are allowed to link to any web pages on the Fitnessdestination.com website. In order for us to accurately keep track of guest visits from your site to ours, you must use the HTML code that we provide.
- You agree to fully cooperate with us in order to establish and maintain any links between the www.fitnessdestination.com site and your site. You also agree that those graphic images that you display pertaining to www.fitnessdestination.com, for use as a link or otherwise, will only be graphic images that we provide to you from the Affiliate Management Center. If we update those graphics, you will need to replace our old graphics with the new ones.
- The maintenance and the updating of your site will be your responsibility. Because you are a member of fitnessdestination’s Affiliate Program and the information within www.fitnessdestination.com is updated often, it will be necessary for you to update the content of your site on a regular basis to maintain consistency and accuracy between the www.fitnessdestination.com site and your site. We may monitor your site as we feel necessary to make sure that your site is up-to-date and to notify you of any changes to your site that we feel should be made.
- It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person's copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person's copyrighted material or other intellectual property in violation of the law or any third party rights.
- Fitnessdestination.com Rights and Obligations
- We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement and to notify you of any changes to your site that we feel should be made or to make sure that your links to our web site are appropriate and to notify you of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the Affiliate Program.
- Deltech Manufacturing, Inc. reserves the right to terminate this Agreement and your participation in the Fitnessdestination.com Affiliate Program immediately and without notice to you should you commit fraud in your use of Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, Deltech Manufacturing, Inc. shall not be liable to you for any Referral Fees for such fraudulent referrals.
- End users who register with Deltech Manufacturing, Inc. through Fitnessdestination.com's Affiliate Program will be considered Members of Fitnessdestination.com ("Members"). All our rules, policies, and operating procedures will apply to those Members. We may change our policies and operating procedures at any time.
- This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated hereunder.
- Termination
Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email or fax. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you.
- Modification
We may modify any of the terms and conditions in this Agreement, at any time in our sole discretion. Modifications may include, but are not limited to, changes in the payment procedures, and Fitnessdestination.com’s Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in Fitnessdestination.com’s Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
- Affiliate Fees
For every new end user who enters the Fitnessdestination.com web site through your Links from your Site and purchases merchandise from Fitnessdestination.com (a "Qualified Buyer"), Deltech Manufacturing, Inc. will pay you a fee of 10% (10 percent) of the order subtotal (before tax and shipping). Qualified Buyers exclude all existing Fitnessdestination.com customers. Please note that we will not pay Affiliate Fees on purchases by Qualified Buyers who subsequently re-enter the Fitnessdestination.com web site (other than through your Links from your Site), even if the customer previously followed a link from Your Site to the Fitnessdestination.com web site.
- Payment
When your account balance reaches $50, a payment will be sent to the address listed with the account. Affiliates in the United States may be paid by Money Order or check via postal mail.
Deltech Manufacturing, Inc. will only accept Affiliates inside the United States of America.
- Promotion Restrictions
You are welcome to promote your own web sites, but naturally any promotion that mentions the Fitnessdestination.com web site, could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by Deltech Manufacturing, Inc.. For example, advertising commonly referred to as "spamming" is unacceptable to us and could cause damage to our brand name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name or your return email address. You may use mailings to customers to promote the Fitnessdestination.com web site so long as the recipient is already a customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote the Fitnessdestination.com web site so long as the news group specifically welcomes commercial messages. No matter what, you must always clearly represent yourself and your web sites as independent from Fitnessdestination.com. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Fitnessdestination.com Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to unacceptable advertising or solicitation.
- Grant of Licenses
- We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the "Licensed Materials") that we provide to you for such purpose. 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 Fitnessdestination.com’s Affiliate Program. All uses of Licensed Materials by you shall be subject to the Fitnessdestination.com trademark usage guidelines as will be provided to you from time to time. You agree that all uses of the Licensed Materials will be on behalf of Fitnessdestination.com and the good will associated therewith will inure to the sole benefit of Fitnessdestination.com.
- You grant to us a non-exclusive right to utilize your names, titles, and logos in the advertising, marketing, promoting, and publicizing in any manner our rights under this Agreement. However, Fitnessdestination.com is under no obligation to so advertise, market, promote, or publicize.
- Each party agrees not to use the other's proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
- Disclaimer
DELTECH MANUFACTURING, INC. MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING FITNESSDESTINATION.COM SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF FITNESSDESTINATION.COM ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. 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 represent and warrant 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;
- You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
- You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
- Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL FITNESSDESTINATION.COM CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
- Indemnification
You agree to indemnify and hold harmless Deltech Manufacturing, Inc. and its employees, representatives, agents and affiliates, against any and all claims, suits, actions, or other proceedings brought against Deltech Manufacturing, Inc. based on or arising from any claim (i) that our use of any material provided by you infringes on any copyright, patent, trademark, trade secret or any other intellectual property right of any third party, or (ii) resulting from your breach of this Agreement or resulting from your breach of any third party intellectual property right or misappropriation of any material, or resulting from any of your defamatory, libelous act or resulting from your violation of any third party right of publicity or privacy. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by Deltech Manufacturing, Inc. in connection with or arising from any such claim, suit, action, or proceeding.
- Privacy Policy
It's pretty simple... We ONLY use the information you submit to maintain your account. That is, to make your commission payments and to communicate changes in OUR product offerings. We will NOT email you with any other company's products... period! We WILL notify you of new banners and or text links to facilitate promotion of [Your Company]. We Do Not Now nor Will We in the future, Sell, Rent or otherwise make your personal information available to anyone!
- Miscellaneous
- You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Deltech Manufacturing, Inc. (www.fitnessdestination.com). 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 any other of Your Site or otherwise, that reasonably would contradict anything in this Section.
- Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party.
- This Agreement shall be governed by and interpreted in accordance with the laws of the State of Kentucky without regard to the conflicts of laws and principles thereof.
- You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
- This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
- The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
- If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.
This concludes the agreement. Thank you for taking the time to read it carefully. We look forward to working with you, our Valued Affiliates! By signing up for our Program, you are in effect, agreeing to the above "affiliate agreement".
