Pristine Partners Affiliate Program Agreement
This Pristine Partners Affiliate Program Agreement (the “Agreement”) is a legally binding agreement between you (“You”) and PristineHydro Development, Inc. (the “Company” or “We”) and is effective on the date You accept the terms and conditions of this Agreement as set forth herein (the “Effective Date”).
BY CLICKING ON THE “I AGREE!” BUTTON AND/OR PARTICIPATING IN THE PRISTINE PARTNERS AFFILIATE PROGRAM (THE “AFFILIATE PROGRAM”), YOU ACKNOWLEDGE
THAT YOU HAVE READ THE TERMS OF THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS SET FORTH HEREIN, DO NOT CLICK THE “ACCEPT” BUTTON OR PARTICIPATE IN THE AFFILIATE PROGRAM.
1. Eligibility. To be eligible to be a Pristine Partners Affiliate Program affiliate (“Affiliate”), You must operate a website that at all times complies with the terms and conditions of this Agreement. Your website must not and, during the term of this Agreement, shall not, as determined by Company in its sole discretion: (a) infringe on Company’s or any other third party’s intellectual property, publicity, or privacy rights; (b) violate any law or regulation; (c) contain any false or misleading information; (d) operate or utilize a website or e-mail link to websites that contain or promote, any of these types of content: libelous, defamatory, obscene, abusive, violent, bigoted, hate-oriented, illegal, cracking, hacking or warez, content targeted at children, or the offer of any illegal good or service, or link to a website(s) that do so; (e) promote discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age; (f) engage in spamming, indiscriminate advertising or unsolicited commercial e-mail; (g) be based outside of the United States (unless You receive prior written approval from Company); and/or (h) engage in any illegal activity of any type, including but not limited to displaying illegal content on Your website or offering any illegal good or service through Your website. You remain solely responsible for all content on Your website. Notwithstanding these requirements, acceptance of any participant into the Affiliate Program is at the sole and absolute discretion of Company. Factors considered by the Company in the acceptance or non-acceptance of a prospective participant into the Affiliate Program vary and include, but are not limited to, marketing, financial, business development, Company relationships and specific and overall corporate strategy. No appeal of the Company’s decision in this regard is allowed and the Company is under no obligation to provide any explanation of its decision. Any participant who submits an application to the Company hereby accepts these conditions.
2. True and Complete Information. You represent and warrant that all information that You provided in connection with becoming an affiliate of Company is true and complete. You further
agree to maintain and promptly update such information to keep it accurate. You hereby indemnify Company in accordance with applicable provisions herein for any consequences resulting from any information provided by You that is not true and/or complete, and Company may immediately terminate Your participation with respect to the Company’s website if such breach also constitutes a breach of Section 1 above.
3. Content Usage Restrictions. You represent and warrant that You shall not, except as specifically provided for pursuant to the Affiliate Program: (i) copy or display any Company
Content (as hereinafter defined); (ii) modify, adapt, translate or create derivative works based on the Company Content; (iii) remove, erase, or tamper with any copyright or other proprietary notices in any copy of any of the Company Content; (iv) sell, market, license, sublicense, distribute, disclose or otherwise grant to any person any right or interest in the Company Content; (v) buy or bid on any of Company’s trademarks, or variations of the trademarks, on any search engine or site; or (vi) take any action which may cause deception, confusion or otherwise blurs, tarnishes or dilutes the quality of the Company Content or Company trademarks or other intellectual property or the goodwill associated therewith, all as shall be determined by Company. For any search functionality on Your site using Company trademarks, (a) Company Links must always appear at the top of the list, (b) any Link that contains Company’s name in the title must connect the user directly back to the Company website, and (c) such Link must be supplied to You by Company. You agree to use the Company Content exactly in the form provided to You pursuant to the Affiliate Program. Upon termination of this Agreement, for any reason, You shall immediately cease using, displaying or otherwise maintaining any interest in the Company Content. For purposes of this Agreement “Company Content” means any and all trademarks, service marks, logos and other content which Company makes available to You in connection with the Affiliate Program, including, but not limited to, banners, buttons, or other
display advertisements created and furnished by Company, and including any information appearing on Company’s website. Such Company Content may be owned by Company or licensed to Company by a third party. You agree that You do not and will not (i) use or in any way exploit, any information, software, photos, video, text, graphics, music, sounds, ideas, recipes, articles, content and other materials of Company, other than the Company Content, alone or in connection with any other content, including Company Content and (ii) include any trademark of Company, or a variant or misspelling of a trademark of Company, in any domain name.
5. Property Ownership Rights. You agree and acknowledge that Company retains all rights, title and interest in and to all property rights embodied in or associated with the Company Content. You represent and warrant that You will not take any action or assist any third party to take action challenging, contesting or otherwise inconsistent with Company’s ownership of the Company Content and any goodwill and benefits accruing from the use of such Company Content will automatically vest in Company.
6. Operation and Maintenance of the Company Web Site. You acknowledge and agree that Company may accept or reject, in its sole and absolute discretion, all orders from customers placed on or through the Company website. You further acknowledges and agrees that (i) You do not have any authority to make or accept any offer or commitment on behalf of Company, (ii) Company cannot, and does not, guarantee the availability and accessibility of the Company website, and (iii) Company has sole authority over all pricing, subscription processing, online fulfillment, cancellation, refunds and all other aspects of the Company website and its products and offerings. All personal information obtained from customers on the website shall be the exclusive property of Company.
8. Public Announcement. You may not mention Company in a press release or other public statement (other than the banners, buttons, or other display advertisements created and furnished by Company) unless You have received prior written approval from Company. You will not misrepresent or embellish the relationship between Company and you (including by expressing or implying that Company supports, sponsors, endorses, or contributes to any charity or other cause), or express or imply any relationship or affiliation between Company and you or any other person or entity except as expressly permitted by this Agreement.
9. Representations and Warranties. You hereby represent and warrant to Company that: (i) You have duly and validly executed this Agreement and it constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms; (ii) the execution, delivery, and performance by You of this Agreement and the consummation by You of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (a) any provision of law, rule, or regulation to which You are subject, (b) any order, judgment, or decree applicable to You or binding upon Your assets or properties, (c) any provision of Your by-laws or certificate of incorporation if applicable, or (d) any agreement or other instrument applicable to You or binding upon Your assets or properties; (iii) no consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by You in connection with the execution, delivery, and performance of this Agreement or the taking by You of any other action contemplated hereby; and (v) there is no pending or material threatened claim, action, or proceeding against You, or any subsidiary or affiliate of Yours, with respect to the execution, delivery or consummation of this Agreement, or with respect to Your trademarks, and there is no basis for any such claim, action, or proceeding.
10. Referral Fees. For the sale of products to be eligible to earn a referral fee, Your customer must click-through a link from your site, email, or other communications to the Company website and make a purchase through customer’s initial click-through. If your customer makes a purchase independently of this process, you will not earn a referral fee. Referral Fees are only paid on links that are automatically tracked and reported by our systems. For our systems to track the referral, the visitor must have cookies enabled. We will not pay Referral Fees if someone says they signed up through You but it was not tracked by our system. For each accepted and fully paid purchase by a customer referred by You, of items listed on the attached Pristine Partners Affiliate Referral Fee Schedule (a “Purchase”), the Company will pay you the corresponding referral fee shown on the Schedule (the “Referral Fee”). Thirty (30) days after the end of each month following Your customers’ Purchases, the Company will remit to you the aggregate Referral Fees earned in that prior month. Adjustments (deductions) to your Referral Fee shall be made for all Purchases that are returned or otherwise result in refunds or credits back to customers on a pari-pasu basis, regardless of reason. In the event a Referral Fee is paid on a Purchase that results in a refund or other customer credit, the amount due back to the Company shall be applied against any future Referral Fees earned by you in the six (6) months immediately following the month in which the return or customer credit was claimed. In the event the Referral Fees earned in the immediately following six (6) months are not sufficient for Company to recoup any Referral Fees due back to Company, you are required to contact Company within ten (10) days following the end of the six (6) month period to make arrangements for immediate repayment to the Company of all such Referral Fees. Each Referral Fee shall represent the total compensation earned by you for any given Purchase. The Company shall not be responsible for the payment of any other fees to any other third parties you may involve in your activities. In the event another Affiliate has a claim on a Referral Fee for a Purchase made by one of your referred customers, the referral credit as tracked by the Company’s system shall be the sole and final determinant as to the Affiliate to whom the Referral Fee is due. Referral Fee payments will be mailed to You at the address listed on the application or any subsequent changes to which are on file. The Company maintains the right, at any time without notice, to terminate the Affiliate Program, or to modify any terms, including Referral Fee compensation in all respects, at Company’s sole and absolute discretion.
11. Responsibility for Affiliate URLs. You will be solely responsible for the development, operation, and maintenance of all URLs related to You, or linked to by You, that are linked to the Company website and for all materials that appear on such URLs.
12. Product Claims. You are prohibited from making any medical or health claims whatsoever relative to any of the Company’s products and/or services, and You shall indemnify and hold Company harmless from any related third party claims, including reasonable legal fees. You may not make medical claims, or state or imply that any of Company’s products are formulated, designed or approved by the Company or any regulatory authority to treat any disease or medical condition. Such representations would imply that the Company’s products are drugs rather than cosmetics or nutritional products. You also may not compare Company’s products to drugs, or make drug or medical claims. Any such representations, claims or comparisons by you may result in your personal liability. You shall not state or imply that any of Company’s products are registered or approved by the United States Food and Drug Administration (the “FDA”) or any other regulatory authority. The FDA does not require or grant specific approval for the individual cosmetic or nutritional products that the Company sells. When making product benefit claims or giving personal testimonials regarding nutritional products that are “structure/function” claims, the claim or testimonial must be accompanied by the following disclaimer:
“These statements have not been evaluated by the U.S. Food and Drug
Administration or any other local authority. This product is not intended to
diagnose, treat, cure, or prevent any disease.”
Structure/function claims describe the role of a nutrient or dietary ingredient intended to affect normal structure or function in humans, for example, “calcium builds strong bones.” They are
not pre-approved by the FDA and must be truthful and not misleading.
13. Promotion, Marketing and Informational Materials. You agree to promote the Company’s products over any competitors’ products and to display any physical Company marketing materials in the most favorable locations within Your premises. You agree to surrender and return, or destroy, immediately at Your expense any outdated marketing materials as determined by Company upon Company’s request, or upon termination of this Agreement. You may receive promotional literature, sales brochures, advertisement and other literature at the sole discretion of Company. All marketing/promotional materials, signs or plaques shall remain the property of Company. No logos, promotional materials or bottle (or other packaging) designs may be changed without the express written consent of Company. You may not modify any packaging, labels, literature or instructions for use of any of Company’s products. You may not give instructions to use Company’s products in any way not described in the Company’s current approved literature. Any such modifications or instructions by you may result in your personal liability.
14. Use of Trademarks and Copyrights. The Company’s trademarks and copyrights are valuable assets of the Company and the Company strictly regulates the use of these trademarks and copyrights to ensure that they do not lose their value to the Company or its affiliates. You may not use the Company’s trademarks, copyrights and other intellectual property rights, registered or otherwise, in any form except as specifically authorized or approved in writing by the Company. The Company may prohibit the use of the Company’s trademarks or copyrights at any time at Company’s sole and absolute discretion. You are liable to the Company for any damages arising out of misuse of the Company’s trade names, trademarks, copyrights and other intellectual property rights, in any form except as specifically authorized or approved in writing by the Company.
15. No Joint and Several Liability. You acknowledge and agree that neither Company, norits subsidiaries, parents, other affiliates, directors, officers, employees, agents, successors or assigns (collectively, the “Company Parties”), shall be liable to any party, including You, for any claim, liability, suit, action, judgment, loss, costs, expenses or other damages related to or in connection with Your website(s) and/or any content or other information displayed or contained thereon, including but not limited to, claims of infringement. Without limiting the generality of the proceeding sentence, You acknowledge and agree that, Company, nor any of its subsidiaries, parents, other affiliates, directors, officers, employees, agents, successors or assigns, shall be liable to You for any claims for indemnification, contribution or otherwise.
16. Affiliate Indemnification. You, at Your expense, shall indemnify, defend and hold harmless, Company against any claim, suit, action, judgment, liability, loss, cost, expenses and other damages, including, without limitation, reasonable attorney’s fees, based upon or in connection with (i) any breach or alleged breach of Your representations and warranties hereunder, (ii) the failure to comply with or perform any obligation or agreement of You hereunder, (iii) Your website(s) and/or any content or other materials displayed or contained thereon, including, but not limited to, claims of infringement; and (iv) claims or actions of third parties alleging unfair or deceptive trade practices or false advertising in connection with statements or claims made by You pertaining to Company’s products and/or services.
17. Term of the Agreement. This Agreement shall begin on the Effective Date and shall terminate on the date You are no longer an Affiliate of Company pursuant to the Affiliate Program.
18. Termination. Company may terminate this Agreement at any time and for any reason upon ten (10) days written notice (e-mail or other electronic communication will suffice) to Affiliate with effect from the 11th day from such notice. Company may terminate this Agreement immediately, without notice, if Company determines, in its sole discretion, that Affiliate has breached any of Affiliate’s obligations hereunder. In addition, Company may terminate this Agreement, in its sole discretion, immediately upon written notice (e-mail or other electronic communication will suffice) if: (a) Company believes in good faith that You or any Related Third- Party is harming, blurring or tarnishing the Company’s brand, any other trademark, service mark or trade name owned or licensed by Company or Company’s reputation; or (b) Company believes in good faith that Your or any Related Third-Party’s actions or one or more of Your or any Related Third-Party’s websites is causing or would cause Company to be in breach of its contractual obligations with third parties.
19. Modification of Agreement. Company reserves the right to modify this Agreement upon reasonable notice to Affiliate. Company may modify this Agreement by notifying Affiliate, and such notification may be completed electronically. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, AFFILIATE’S SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT. AFFILIATE’S CONTINUED PARTICIPATION AS AN AFFILIATE FOLLOWING THE MODIFICATION OF THIS AGREEMENT SHALL CONSTITUTE ACCEPTANCE OF SUCH MODIFICATION BY AFFILIATE.
20. LIMITATION OF DAMAGES. COMPANY WILL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, COMPANY’S AGGREGATE LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM WILL IN NO EVENT EXCEED THE TOTAL REVENUE SHARE PAID OR PAYABLE BY COMPANY TO AFFILIATE UNDER THE AFFILIATE PROGRAM DURING THE IMMEDIATELY PRECEDING 12 MONTH PERIOD PRIOR TO THE DATE SUCH LIABILITY AROSE.
21. WARRANTY DISCLAIMER. COMPANY MAKES NO WARRANTIES, REPRESENTATIONS, GUARANTEES, OR CONDITIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. IN PARTICULAR, COMPANY MAKES NO REPRESENTATION THAT THE OPERATION OF THE WEBSITE WILL BE UNINTERUPTED OR ERROR-FREE.
22. Independent Contractors. Company and Affiliate are independent contractors and nothing in this Agreement or the Affiliate Program is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative, or employment relationship. Neither party has expressly or by implication any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever. You are solely responsible for all expenses associated with your activities in relation to this Agreement. You agree that you will not, under any circumstances, represent, directly or by implication, or otherwise hold Yourself out as anything other than a “Pristine Partner” Affiliate or participant in PristineHydro’s Pristine Partners Affiliate Program. Nothing contained herein shall impose any liability on Company in connection with the operation of Your business, or for any expenditure, obligation, or liability incurred by You in performing or preparing to perform any of Your obligations under this Agreement.
23. Governing and Applicable Law. This Agreement is governed by and in accordance with the substantive laws of the State of California, excluding its conflict of laws principles. Any lawsuit relating to this Agreement must be brought in the proper federal district or state courts located in Orange County, California. If any of the provisions of this Agreement or other related documents fail in any way to be in strict compliance with the US Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising and relevant US Food and Drug Administration Advertising Guidelines (the “Regulatory Guidelines”), it is unintentional and all such provisions shall be deemed to be automatically revised to correctly reflect the Company’s and Affiliate’s rights, liabilities, duties and obligations under the provisions of the Regulatory Guidelines and all other applicable laws.
24. Taxes. You are required to provide the Company with a completed IRS Form W-9 (Request for Taxpayer Identification Number and Certification) immediately upon Company’s request. Any Referral Fees withheld for more than thirty (30) days following a Company request for Your W-9, which has not been complied with, shall be forfeited by You. Business entities are required to provide the Form W-9 as well. If any information submitted by You on the W-9 is incomplete, incorrect or inaccurate, payments due to You will be withheld at Company’s sole discretion. It is Your sole responsibility to ensure that Company has a complete and accurate Form W-9 on file when requested. The Referrer is responsible for any and all income, payroll and self-employment taxes, as applies, required by federal, state, and local laws, statutes, and regulations.
24. 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.
25. Assignment. You, the Affiliate, may not assign any of its rights or delegate any of its obligations under this Agreement, by operation of law or otherwise, without Company’s 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.
26. Waiver. Company’s failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
27. Entire Agreement. This Agreement, along with any applicable program terms that You accept, represents the complete agreement and understanding between the parties, and supersedes any other oral or written communications or understandings between the parties regarding the subject matter hereof. No amendment or modification to this Agreement will be binding upon Company unless agreed to by an authorized representative of Company.
Pristine Partners Affiliate Program – Referral Fee Schedule
(as of 2019.01)
All items purchased via your affiliate code and/or referral link.
Referral Fee: 10% of Collected Sales Price