Emperor's Herbologist AFFILIATE AGREEMENT
This Affiliate Agreement (the "Agreement") is made by and between SMARTER HEALTH CORPORATION, a Delaware corporation ("SHC"), and you, as an Affiliate of the SHC ("You" or "Member" or "Your" or "The Affiliate", "Affiliate").
To be an Authorized Affiliate of SHC you agree to abide by the terms and conditions contained in this Agreement. Please read this Agreement carefully before registering to be an Emperor's Herbologist Affiliate. By clicking on the signup I have read and accept the Emperor's Herbologist Affiliate Agreement box at the bottom of the signup page you agree to be bound by all of the terms and conditions contained in this. If you do not accept this Agreement, do not become an Emperor's Herbologist Affiliate.
BACKGROUND
SMARTER HEALTH CORPORATION has developed and currently operates a commercial web site for commerce www.emperorsherbologist.com and operates an affiliate program ("PROGRAM") which allows non competing Web sites to participate in revenue sharing programs. We provide our affiliates with trusted-third-party sales notification (thru the shopping cart), and monthly commission checks when your commission reaches the $25.00 level. You wish to become an Emperor's Herbologist Affiliate. As an Affiliate you will be participating in revenue sharing arrangements with us. In consideration of the promises set forth below, you agree as follows:
REGISTRATION:
To sign up as an Emperor's Herbologist Affiliate you must be at least 18 (eighteen) years of age.
You agree to not send unsolicited mail or SPAM mail to promote us, our Affiliate Program, our URL’s, any Affiliates in our program, and/or any of our products. This action WILL RESULT in immediate termination of your account with a cancellation of any pending commissions. You will also be in violation of the SHC Agreement and subject to legal action.
THE FOLLOWING TYPES OF SITES ARE NOT ALLOWED TO PARTICIPATE IN THIS PROGRAM: SITES THAT PROMOTE VIOLENCE, BIGOTRY, OR HATRED. SITES THAT PROMOTE ILLEGAL ACTIVITY. SITES THAT ARE RUN OR OWNED IN PART OR IN WHOLE BY OUR COMPETITION
You represent and warrant that any material which is provided by you and displayed on your web site will not: (i) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory, abusive or libelous; (iv) be multi-level marketing based (vi) violate any laws regarding unfair competition, (vii) be discriminatory, fraudulent or contain false advertising; (viii) promote violence or contain hate speech; or (ix) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
You represent and warrant that you have used your true legal name in registering for the Emperor's Herbologist Affiliate program; that you have the power and authority to enter into this Agreement and perform the obligations set forth herein.
You shall indemnify and hold harmless SMARTER HEALTH CORPORATION, its subsidiaries and affiliates, and its respective directors, officers, employees, agents, shareholders, partners, suppliers, customers, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys' fees) arising out of or related to any obligation undertaken or representation or warranty made by you; or any breach by you of any covenant or agreement made herein; or any content, trademark, copyright or intellectual property used, created or distributed by you.
The Emperor's Herbologist Affiliate program and SHC’s web site(s) are provided on an "As is" basis without warranties of any kind, either express or implied, including without limitation, warranties of merchantability or fitness for a particular purpose. In addition, we make no representation that (a) the operation of the Emperor's Herbologist Affiliate Program and SHC’s Web site(s) will be uninterrupted or error free; (b) defects will be corrected; (c) that there are no viruses or other harmful components; (d) that the security methods employed will be sufficient, or (e) regarding correctness, accuracy, or reliability (f) and we will NOT be liable for the consequences of any interruptions or errors. SHC shall have no liability for unauthorized access to, or alteration, theft of destruction of any web site of Yours or Your customer data files or systems or programs through accident, fraudulent means or devices. SHC shall have no liability with respect to SHC’s obligations hereunder or otherwise for consequential, exemplary, special, incidental, or punitive damages EVEN if SHC has been notified of such damages. Because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, the above exclusion may not apply to you. In such jurisdictions, SHC’s liability is limited to the smallest amount permitted by law. This paragraph will survive the failure of any exclusive or limited remedy.
SHC, its suppliers, resellers, customers, and/or affiliates shall not be liable to you or any other person or entity for (i) any indirect, special, exemplary, incidental, or consequential damages of any character arising our of the use of or inability to use, or any information provided on SHC’s Web sites or any other hyperlinked web site(s), including without limitation, damages for loss of goodwill; lost profits; business interruption; loss of programs; or other data on your information handling system or otherwise, EVEN if SHC or a SHC authorized representative has been advised of the possibility of such damages or; (ii) any claim attributable to errors, omissions or other inaccuracies in the web sites or any hyperlinked web sites. Because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, the above exclusion may not apply to you. In such jurisdictions, SHC’s liability is limited to the smallest amount permitted by law. This paragraph will survive the failure of any exclusive or limited remedy.
SHC IS NOT RESPONSIBLE FOR TECHNICAL PROBLEMS, ACTS BY THIRD PARTIES, OR OTHER EVENTS OUTSIDE OUR REASONABLE CONTROL WHICH MAY TEMPORARILY DISRUPT OR DIMINISH OUR PROGRAM OR WEB SITES.
You shall provide SHC with accurate, complete and updated contact, and other information as required by SHC. You may not select the name of another person with the intent to impersonate that person or deceive SHC or other users as to Your true identity.
You agree that SHC may rely on any data, notice, instruction or request furnished to SHC by You which is reasonably believed by SHC to be genuine and to have been sent or presented by a person reasonably believed by SHC to be authorized to act on Your behalf. You shall notify SHC by e-mail of any known or suspected unauthorized uses of Your data, Web site, or any known or suspected breach of security, including but not limited to loss, theft or unauthorized disclosure of Your email. You shall be responsible for maintaining the confidentiality of Your email and SHC’s proprietary material, and you are responsible for all usage and activity by YOU, including use of the account by a third party authorized by You to use Your information. Any fraudulent, abusive or otherwise illegal activity may be grounds for termination by SHC and referral to the appropriate law enforcement agencies.
As SHC may not review all information provided by You, You shall remain solely responsible for Your content and Web site. As an Affiliate, You may not artificially inflate traffic counts to our sites using any device, program, robot or other means. Links may not be placed in unsolicited e-mail, unsolicited or cross posting in newsgroups, banner networks, counters, or guestbooks. Any Link placed must be done so in such a way that it is not misleading to any Visitor and done so with the intention of delivering valid clicks, sales, or leads to us for that Link. We do encourage you to use text links in your ezine(s).
SHC HAS THE SOLE THE RIGHT TO DEEM ANY SITE INAPPROPRIATE AND TERMINATE THE SITE AS AN Emperor's Herbologist Affiliate. If You are terminated from the PROGRAM, SHC has the right to withhold money You earned within the PROGRAM or money that You owe to SHC.
WHAT YOU GET PAID FOR
Commissions will only be paid out on direct orders placed through our online ordering system. You will receive a 10 percent (10%) commission on the Selling Price of the item(s) shipped. The Selling Price means the price paid for the product by the Customer less shipping, handling, database processing fees, credit card validation fees or any other charges incurred by the Customer.
HOW YOU GET PAID
The Commission will be paid to you by us when your commissions reach a minimum of $25.00 You will be paid in the following month to allow for returns, etc.
You will not receive Commissions on Orders placed by You. Rather, You will receive a 10% discount on any Orders You place to us. Any Order you place to us must be placed directly thru our Web site, not from a link form your web site, or another Affiliates web site. You must mention in the note section of the order form that you are an affiliate and give your affiliate number.
Money that is being held for whatever reason does not accrue interest.
In the event of a Chargeback by a Merchant including but not limited to SHC, the Merchant may recover Payouts and Fees previously credited to Your account. All Chargebacks will be promptly deducted against your current earnings. In the event that you have already received payment for the month, all Chargebacks will be deducted against Your future earnings. SHC is not responsible to compensate you for commissions that have been forefitted, or lost due to chargeback’s, misuse of a program, or your removal from the PROGRAM by SHC or any other Affiliate program you may be a part of.
YOU ARE AN INDEPENDENT CONTRACTOR
The relationship between SHC and Affiliate established by this Agreement is that of independent contractors. SHC and Affiliate shall each conduct its respective business at its own initiative, responsibility and expense, and shall have no authority to incur any obligations on behalf of the other, except as otherwise provided herein. Term "Affiliate" shall not be interpreted as a legal partner or affiliate, simply as an independent contractor for SHC under this agreement Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between you and us. Neither party, by virtue of this Agreement, is authorized as agent, employee or legal representative of the other. Except as specifically set forth herein, neither party shall have the power to control the activities and operations of the other and their status is, and at all times will continue to be that of independent contractors.
You will not make any statement, whether on your web site or otherwise, that reasonably would contradict anything in this Section.
YOU AGREE NOT TO SPAM
Any unsolicited e-mail sent that mentions SHC, it’s Affiliate Program, Affiliates, URL(s), Products, or is in any way connected with SHC will result in an immediate termination of your participation, and will subject you to legal action. Any advertising you provide mentioning SHC, it’s Affiliate Program, Affiliates, URL(s), Products, or is in any way connected with SHC must be pre-approved in writing by SHC prior to its use by you.
If termination is based upon abuse of the program such as spamming or using the tracking links in email then yours account(s) will be deleted and no commissions will be paid. You agree that if it is proven that you have spammed or hired a third party to spam mentioning SHC, it’s Affiliate Program, Affiliates, URL(s), Products, or is in any way connected with SHC that you are in violation of this agreement and agree to pay to SHC upon demand a sum equal to US $5.00 for each Email SPAM sent or a minimum of $10,000 per occasion; whichever is greater. Our business and service is based upon solid, reputable practices and we will not tolerate abuse.
CHANGES TO THE PROGRAM
SHC reserves the right to make changes of the terms and conditions contained in this PROGRAM and/or Agreement at our sole discretion. We may modify the Agreement and/or PROGRAM, at any time and, by posting a change notice or new agreement on emperorsherbologist.com (or any successor web site.) Modifications may include, but are not limited to, changes in the scope of available services, changes in the scope of available products, referral fees, fee schedules, payment procedures and methods of linking to emperorsherbologist.com. In either such case SHC will notify Members via e-mail, newsletter or posting to our Web site of such changes, at which time Members may either agree to such changes or withdraw from the Service. 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.
CHANGES TO OUR WEB SITES
We reserve the right in our sole discretion to discontinue operation of emperorsherbologist.com at any time without notice to you and to redesign or modify the organization, structure, "look and feel," navigation, Contents and other elements of emperorsherbologist.com and their successors.
RESPONSIBILITY OF YOUR WEB SITE
You are solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. We disclaim all liability for these matters. Furthermore, you will indemnify and hold us harmless from all claims, damages and expenses (including without limitation, attorney's fees) relating to the development, operation, maintenance and contents of your site.
WE OWN THE TRADEMARKS
All materials, including but not limited to reviews, articles, ad banners, photographs, images, illustrations, databases appearing on emperorsherbologist.com are protected by patent, copyright, trade dress and/or trademark law pursuant to U.S. and/or foreign patent, copyright and trademark laws and/or international treaties or conventions and are the sole Property of SHC including rights in and to any derivatives thereof regardless of how they came into being.
We will make available to You, materials for Your use in promoting our products and site on a non-exclusive, limited, revocable right to use. All images, technology and content provided by SHC is and shall remain the sole property of SHC regardless of their origin or coming into being, and no part thereof shall be deemed assigned or licensed to You except as explicitly provided for herein. Materials may include but are not limited to: SHC’s trademarks and banners, product descriptions, pictures, product use instructions. It is agreed that these materials are the property of SMARTER HEALTH CORPORATION Any Promotional material provided by us remains property of us and is solely our company property. No part thereof shall be deemed assigned or licensed to You except as explicitly provided for herein. Except as set forth in this Agreement, you may not use, transmit, distribute, sell, reproduce or otherwise copy any of the Content without express written authorization of the copyright and/or trademark owner of such materials. You may not modify the trademarks, banners, the content or any of SHC’s provided images in any way. It can only be used to promote our products.
Any instruction on product applications, directions, designs, newsletters, product descriptions, product likenesses are the property of SMARTER HEALTH CORPORATION regardless of their origin. Upon termination of this agreement, or upon notice from us you must immediately remove and delete any SHC promotional, and/or proprietary materials in your possession and control provided by us currently in use by you or archived by you, including but not limited to: text, news letters, product descriptions, Product Use instructions, testimonials, product pictures, trade marks, etc.
You agree to use the Marks exactly in conformance with SHC’S trademark usage policies as communicated to You from time to time. SHC may immediately terminate any Your license to use the Marks if SHC reasonably believes the such use dilutes, tarnishes or blurs the value of the marks.
You acknowledge that Your use of the Marks will not create in it, nor will it represent it has, any right, title or interest in or to the Marks other than the license granted by SHC above. You will not challenge the validity of or attempt to register any of the Marks or its interest therein as a licensee, nor will it adopt any derivative or confusingly similar names, brands or marks or create any combination marks with the Marks. You acknowledge SHC’s and its affiliates’ ownership and exclusive right to use the marks and agrees that all goodwill arising as a result of the use of the Marks shall inure to the benefit of SHC and its affiliates.
We reserve all right, title and interest in our web sites and all Content therein, including without limitation, all intellectual property rights. Except as expressly set forth in this Agreement, we do not grant you any right or license in our web sites, Content or trademarks.
CUSTOMER OWNERSHIP
Customers who buy products through this program will be deemed to be customers of SMARTER HEALTH CORPORATION Accordingly, all SHC Group, Inc policies, directives, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. SHC shall have sole proprietary rights to any data regarding a purchaser of SHC’s products.
Our Use Of the Emperor's Herbologist AFFILIATE PROGRAM
DATA AND SALES DATA
We reserve the right to disclose information about sales and usage generated by the Emperor's Herbologist Affiliate Program in forms that do not reveal your personal identity. SHC respects the privacy of its Affiliates and promises not to disclose personal information to third parties without the express permission of you and your company. We will not sell, loan, or rent your name, e-mail address, phone number, or any other personal information to any third party. We consider this information to be private, and it will remain as such.
If you have any questions about your privacy rights, or would like further information regarding the confidentiality of your interactions with SHC, contact us.
To protect SHC customer privacy, we cannot provide identifying customer names and contact information to you. However, we will provide an email receipt detailing price, service, date of sale, and perhaps other data for your records.
PRICE CHANGES
We may change our policies, prices and operating procedures at any time without prior warning to you. Due to the nature and content of our products, price changes could affect your links that you have listed on your site, so you may not include price information in your product descriptions.
ORDER PROCESSING
We shall have the sole right and responsibility to process product orders placed by customers who access our web sites via the hyperlinks to our site from Your Web site. The "Customers" in the session commenced with their arrival at emperorsherbologist.com The "Orders", including handling customer payments, packing and shipping customer orders, and customer service. Orders will be governed by our then-applicable terms and conditions of sale, and all agreements relating to such terms and agreements will be between us and Customer. Those terms and conditions may be changed at any time, without notice to you. Selling prices for the products will be set by us at our sole discretion, and may be changed at any time. We may refuse an order for any reason or no reason at all.
TERM & TERMINATION
This Agreement shall remain in effect until terminated. This Agreement may be terminated by SHC, or You for any reason or no reason, or immediately upon notice of any breach of the provisions of this Agreement. Upon termination, You shall no longer be entitled to be a Emperor's Herbologist Affiliate. You may terminate this Agreement at any time by sending notice to us via e-mail. You will be credited with all Commissions earned until the time of termination.
We may, in our sole discretion, terminate this Agreement for any reasons whatsoever or no reason at all, including, without limitation, your breach of this Agreement.
NONASSIGNABILITY
You may not assign this Agreement to any successor or affiliate without SHC’s express written permission. SHC retains it right to assign or transfer this Affiliate Program to any other party. If you do not approve, your only recourse is to terminate your participation in the Program.
JURISDICTIONAL ISSUES
Information SHC publishes may contain references or cross references to SHC’s programs or services that are not announced or available in Your jurisdiction. Such references do not imply that SHC intends to announce such programs or services in Your jurisdiction. Except as described otherwise, all materials in the SHC’s site are made available only to provide information about SHC. SHC controls and operates its site from its offices in the State of Florida, United States of America and makes no representations or warranties that these materials are appropriate or available for use in other locations, and access to them from territories where their contents are illegal is prohibited. If you use SHC’s site from other locations, you are responsible for compliance with applicable local laws. This Agreement shall be governed by Florida law (except for conflict of law provisions). The exclusive forum for any actions brought in connection with this Agreement shall be in the state and federal courts in and for the State of Florida, County of Duval, City of Jacksonville and You consent to such jurisdiction. The application of the United Nations Convention on the International Sale of Goods is expressly excluded.
The parties agree that (i) the failure of either party to insist upon performance of any of the terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of any rights granted hereunder; (ii) in the event that any portion of this Agreement may be held to be invalid or unenforceable for any reason, said invalidity or unenforceability shall not affect the other portions of this Agreement; (iii) this Agreement shall be binding upon and inure to the benefit of and shall be enforceable by AFFILIATE, its successors and assignees, and SHC and its successors and assignees; (iv) wherever the context herein so requires, words in either gender shall be deemed to include the other gender; and (v) this agreement shall be governed by and interpreted in accordance with the laws of the State of Florida applicable to contracts entered into and performed entirely within the State of Florida, without regard to its conflict of law provisions irrespective of the fact that a party hereto may be an individual who is or who may become a resident of another state.
In the event of any dispute regarding the Emperor's Herbologist Affiliate Program or any matter related to this Agreement, you agree that litigation shall be in the state or federal courts in the City of Jacksonville, County of Duval, State of Florida. Any process in any action or proceeding arising under or relating to this Agreement may, among other applicable methods, be served by delivering or mailing the same by registered or certified mail return receipt requested, directed to us at SMARTER HEALTH CORPORATION, 3947 Boulevard Center, Suite 110, Jacksonville, FL 32207 Attn: General Counsel or to you at the address appearing on your Emperor's Herbologist Affiliate Program registration. Due to the high cost of litigation, if the parties can not resolve their disagreements thru negotiation with each other, both parties agree in advance to submit to binding arbitration, performed by a recognized independent 3rd party arbitrator in Jacksonville, FL USA.
DIRECT ALL CORRESPONDENCE REGARDING THE
www.emperorsherbologist.com www.emperorsherbologist.com web sites to
TO: SMARTER HEALTH CORPORATION,
3947 Boulevard Center, Suite 110,
Jacksonville, FL 32207 USAPhone: (904) 390-4424
MISCELLANEOUS
This Agreement represents the complete agreement concerning this license and may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.
Submitting this form constitutes your signature to the above agreement. This agreement is legally and binding between You (The Affiliate) and SMARTER HEALTH CORPORATION It is the complete and exclusive statement of all of the terms of the agreement and may only be changed by a written statement signed by SMARTER HEALTH CORPORATION Please read the agreement carefully. Use of the SMARTER HEALTH CORPORATION advertising banners or participating in the SMARTER HEALTH CORPORATION marketing program constitutes your agreement to all of the terms of the agreement.
Before submitting your completed agreement please print a hard copy for your records.
I have read and accept the Emperor's Herbologist Affiliate Agreement
Last modified: June 13, 2005