| Operating Agreement |
This Operating Agreement contains the complete terms and conditions between any and all individuals and/or legal entities and and HerbalSex.com concerning your application and participation as an Affiliate in the HerbalSex Affiliate Program ("Program") and the establishment of links from your web site to HerbalSex.com products pages.
BY CLICKING ON THE "SIGN UP NOW" BUTTON AT THE END OF THIS AGREEMENT OR ANY OTHER FORMS ON HERBALSEX.COM SITE CONTAINING A REFERENCE TO THIS AGREEMENT, AND BY SUBMITTING YOUR APPLICATION, YOU CONFIRM THAT YOU HAVE THOROUGHLY READ, UNDERSTAND ALL OF ITS CONTENTS AND AGREE THAT YOU WILL BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
1. Definitions
As used in this Agreement, terms:
- "you" or "your" refer to you (the Applicant);
- "sponsoring Web site", "referring site" and variations thereof refer to the World Wide Web site from which you will link to HerbalSex.com;
- "we," "us" or "our" will mean HerbalSex.com;
- "Participant", "Affiliate" shall mean an Applicant, which has been approved to be a Participant/Affiliate in the HerbalSex Affiliate Program ("Affiliate Program or Program");
- "Product(s)" refers to any item listed for sale in the HerbalSex.com Web site;
- "Link(s)" shall mean special coded links (text and/or graphic), which will establish the operational connection between your and our sites;
- "Dollars", USD and $ signs shall mean United States Dollars.
2. Enrollment in the Affiliate Program and Qualification Requirements
2.1. To begin the enrollment process, you must first read and acknowledge your acceptance of this Agreement and submit a complete Affiliate Program Application (you will be automatically forwarded to the Application after you click on the "Sign up now" link at the end of the Agreement. We will evaluate your application in good faith and notify you of your acceptance or rejection. If we reject your application, you may reapply to the Program if you believe that you have corrected the problems that were the original cause of your rejection.
2.2. In order to be accepted into the Program, you must meet ALL of the following requirements:
(a) you must be at least 18 years old (or older if required in your local jurisdiction); (b) you must have your own developed and operating web site or newsletter; (c) your web site must be suitable for the Program. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Program for any reason, including but not limited to inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, promoting the use of spam, pyramid schemes, nudity or pornography, violating intellectual property rights, or racially, ethnically, or otherwise objectionable to us. (d) You promise to promote the Program in an ethical way and in full compliance with the terms and conditions contained in this Agreement and within the standards of the affiliate marketing industry.
2.3. We reserve the right to remove you from the Program at any time without prior notice if it comes to our attention that, in our sole discretion, your site has become unsuitable for the Program.
3. Privacy Policy
3.1. We respect and protect the privacy of our visitors, subscribers, customers and Affiliates. Our Privacy Policy is posted on the site. No information obtained through either your application or participation in the Program will ever be used for any purpose other than the proper administration of the Program and we will never give, sell or lease your personal information to anyone outside of our organization unless required by law or under the advice of our legal advisors.
3.2. You agree that we shall have no obligation to share any customer information collected by us, including but not limited to the name, address, e-mail address of the customer, or any titles ordered.
3.3. By accepting this Agreement you hereby grant us the right to send you e-mails for the purpose of informing you of changes to the Program, special offers to Affiliates, contests, bonuses or rebates for Affiliates, or for other legitimate reasons related to the Program. Should you decide to opt-out of future mailings you can e-mail us at affiliate@HerbalSex.com. However, you understand and agree that should you opt-out of these future mailings you will be obligated to periodically inspect our site in order to be aware of changes to the Program and our policies. Your continued participation in the Program will constitute your acceptance of any such future changes.
3.4. As part of the Program you will be given a password to access your stats and change your contact information. It is your responsibility to maintain secrecy and control of this password so that others cannot gain access to, or change, your personal information. HerbalSex cannot be held responsible for any loss of information or incorrect sending of payments if you fail to protect your information.
4. Links
If you qualify and agree to participate as an Affiliate site, we will make available to you a variety of graphic and textual links which, subject to the terms and conditions hereof, you may display as often and in as many areas on your site as you see fit and with our consent. The Links will serve to identify your site as a member of the HerbalSex Affiliate Program and will establish a link from your site to ours. The Links may connect to any area of our site. In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. You also agree t hat you will display on your site only those graphic or textual images (indicating a Link) that are provided by us, and you will promptly substitute such images with any new images provided by us from time to time throughout the term of this Agreement. Your site shall display such graphic and/or textual images prominently in relevant sections of your site. You shall not alter, modify or expand the Links in any way without our written consent. Each Link connecting users of your site to our site will in no way alter the look, feel or functionality of our Web site. We have the right, in our sole discretion, to monitor your site at any time to determine if you are in compliance with the terms of this Agreement.
5. Order Processing
We will process product orders placed by customers who follow the Links from your site to the HerbalSex.com site. We reserve the right, in our sole discretion, to reject orders that do not comply with any requirements that we may periodically establish. We will be solely responsible for all aspects of order processing and fulfillment, including order entry, payment processing, handling returns and cancellations, shipping and customer service. We will track the volume and amount of sales made to customers who purchase products using Links from your site to the HerbalSex.com site and will provide you with reports summarizing this sales activity. The form, content and frequency of the reports may vary from time to time at our discretion. To permit accurate tracking, reporting and fee accrual, you must ensure that the Links between your site and our site are created with the HTML tag generator. If our product pages change and you have Links that direct visitors to these pages, we will redirect your visitors to an appropriate page automatically.
6. Commissions and Tracking
6.1. Subject to the terms and conditions of this Agreement, we will pay you a referral commission basis fifteen (15) percent (the "Commission Rate") on all product sales.
6.2. In order for a sale to qualify for a commission it must meet all of the following requirements:
(a) the customer must follow a coded link from your site to HerbalSex.com site;
(b) the customer must have been tracked by our system (if the customer got to our site via multiple affiliate links, the last referring Affiliate will receive the commission);
(c) the customer must have purchased a product using our automated ordering system;
(d) the customer must have accepted delivery of the product at the shipping destination, and
(e) the customer must have remitted full payment to us.
6.3. Gift certificates are not eligible to earn a commission.
6.4. The commission rate is subject to change at any time or from time to time, in our sole discretion.
6.5. Commission rates will be based on the amount actually received by us for purchases, excluding amounts collected by us for sales tax (if applicable), shipping and handling fees, returns, chargebacks, fraud, exchanges, credit card processing fees, returned check fees and other similar charges ("Net Sales"). Commission on any cancellations, returns, bad checks, credit card fraud or other similar items will be deducted from your next payment. Should you not have a sufficient balance to cover the amount due back to us the excess amount will be due and payable to us immediately upon notification to you of the amount due. We reserve the right to withhold notification to allow your balance to cover the amount due, but we may still notify you at our discretion.
7. Commission Payments
7.1. Commissions will be paid quarterly to all Affiliates with a balance due of at least $250. Approximately 30 days following the end of each calendar quarter, we will send you a check for the commission earned on the products shipped during that quarter, less any taxes that we may be required by law to withhold. If the commission payable to you for any quarter is less than $250 your balance will be carried forward into the next quarter and paid 30 days after the end of the quarter in which the cumulative commission is in excess of $250.
7.2. Unless other arrangements are made, checks are issued and funded in U.S. dollars only and are mailed via U.S. Postal Service to the name and address currently on record for your account. You are responsible for informing us of any changes to your account information. Should you ever inform us that a payment was not received due to your failure to notify us of a change in a timely fashion you will be responsible for any charges or costs necessary to rectify the problem.
7.3. We shall not be responsible for any errors made either by you or customers referred by your site, which result in any loss of any tracking information contained in the special Link.
8. Policies & Pricing
Customers who buy products through this Affiliate Program will be deemed to be customers of HerbalSex.com. Accordingly, all HerbalSex.com rules, policies and operating procedures concerning customer orders, customer service, promotions and product sales apply to these customers. We may change our prices, policies and operating procedures at any time. You shall not include price information in any descriptions on your site without our prior written approval. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product on our site.
9. Non-Exclusive Limited License and Use of K inetro Logos and Trademarks
We hereby grant you a non-exclusive, non-transferable, revocable right to access our site through links and use our logos, trademarks, trade names, and similar identifying materials in your effort to promote us pursuant to this Agreement and during the term thereof as they appear in the banners supplied by us to you. solely in accordance with the terms of this Agreement, and solely in connection with such links, to use, without the right to sublicense the HerbalSex logo, trademark and similar identifying material (collectively "Licensed Materials") solely for the purpose of linking your site to our site, where your users can purchase HerbalSex products. 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 you are a member, in good standing, of the Affiliate Program. You may not make any specific use of any Licensed Materials for purposes other than selling products for HerbalSex, without first submitting a sample of such use to us and obtaining our prior written consent. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays HerbalSex or anyone else negatively. We reserve all of our rights in the Licensed Materials and all other intellectual property rights. We may revoke your license at any time by giving you written notice. If not revoked, this license shall terminate upon expiration or termination of this Agreement, and you shall immediately cease using and remove all our Licensed Material from your site and any other of your materials.
This license shall terminate immediately upon termination of this Agreement.
10. HerbalSex Responsibilities
We will be responsible for all matters relating to the sale of our products and the service to our customers, including without limitation:
(a) setting all prices, shipping and handling fees, shipping and delivery, processing payments, cancellations, returns and related customer service functions for all orders;
(b) providing all information, including coded links and graphics, necessary to allow you to make appropriate links from your site to our site and assist you in your efforts to send your visitors to us and to convert them into paying customers;
(c) processing every order placed by a customer following a special Link from your site, for tracking the volume and amount of sales generated by your site;
(d) paying your sales commission;
(e) operating within the laws of all applicable jurisdictions.
11. Your Responsibilities
(a) You will be solely responsible for the development, operation and maintenance of your site and for all materials that appear on your site. Such responsibilities include (but are not limited to), the technical operation of your site and all related equipment; creating and posting product descriptions on your site and linking those descriptions to our site.
(b) You hereby agree that your site will not, in any way, copy or resemble the look and feel of the HerbalSex.com site, nor will you create the impression that your site is our site or is a part of our site. You also hereby agree that your site will not contain any content of our site or any materials which are proprietary to HerbalSex.com, except (i) with our explicit prior permission, or (ii) materials which are obtained by you via the HerbalSex.com site in accordance with the provisions hereof or the policies or instructions thereon.
(c) You further agree that your domain name does not and will not contain the words HerbalSex.com or HerbalSex or any variation thereof and that you will not purchase or otherwise contract with a third party to exploit any of the HerbalSex.com marks for the purpose of causing your site to appear as a search result or for any other reason.
(d) Your site shall not contain any material that is lewd, pornographic, harmful to minors or others, threatening, defamatory, obscene, harassing, or otherwise inappropriate or offensive. We disclaim all liability and responsibility for such matters.
(e) Further, you will indemnify and hold us harmless from all claims, fees, damages and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance and contents of your site.
(f) You will display our text and/or graphic links on your pages to encourage your visitors to become customers of HerbalSex.com.
(g) You are solely responsible for ensuring that your site complies with all applicable copyright and other laws. or violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights); and ensuring that materials posted on your site are not libelous or otherwise illegal.
(h) You will not violate any provision of this Agreement, including but not limited to our strict prohibition against the use of SPAM.
(i) You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site including maintenance of any and all links to the HerbalSex.com products.
(j) You are solely responsible for any taxes due as a result of any commissions earned by you hereunder. This includes federal, state and local income taxes, self-employment taxes, unemployment insurance, state disability, social security, or any other payments owed to government entities.
(k)You will indemnify and hold us harmless from all claims, judgments, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site.
12. Spam Policy
Spam, for the purposes of this Agreement, shall be defined as unsolicited commercial e-mail sent to third parties with whom you have no existing relationship or permission to send e-mail for the purpose of promoting or generating business or traffic, especially bulk e-mail. This includes posting in newsgroups, forums, etc., where the y do not specifically allow commercial posts.
We have a zero tolerance for spam. We do not use spam in the promotion of our business. If you are caught spamming your participation in the Program will be terminated, and you agree to forfeit any commissions due in addition to any other liabilities for damages, costs, attorneys fees, etc.
13. Relationship of Parties
You are an independent contractor, 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 and you will not make any statement, whether on your site or otherwise, to the contrary.
14. Modifications
14.1. We must reserve the right to change any of the terms and conditions in this Agreement, at any time and in our sole discretion, in order to adjust to changing business conditions. However it is our intention to maintain the Program as is for as long as possible, and we will not make any material, substantive changes unless they are in good faith and not without first giving you at least 7 days written notice to your e-mail address of record. We will also post changes on the web site.
14.2. Should you not agree with any changes your only option will be to terminate your participation in the Program and remove all links to our site. Your continued participation in the Program shall constitute your binding acceptance of the change(s).
14.3. No changes will ever be made retroactive.
15. Term & Termination
The term of this Agreement will begin upon our acceptance of your 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 commissions for sales that are initiated during the term hereof and subsequently complete all of the requirements as set forth herein. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
If you are terminated for cause, which means you have violated any stipulations of this Agreement, then you will forfeit any unpaid commissions forever. You will additionally be subject to potential legal action for damages, costs, attorneys' fees, etc. We will notify you of the termination and the reason why you were terminated for cause.
If you are terminated without cause, or you notify us that you have terminated your own participation, but the Program continues in effect, you will no longer be eligible to earn commissions. Any commission still owed to you will be payable per the Agreement. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. Should the final payment be less than the minimum, then that payment will be paid to you less an accounting/administrative fee of $10.
16. Indemnification
You hereby agree to indemnify and hold harmless HerbalSex and its directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any breach of a covenant and Agreement made by you herein, or (ii) any claim related to your site, including, without limitation, content therein not attributable to us.
17. Independent Investigation
You acknowledge that you have read this entire Agreement and that you agree to all of its terms and conditions. You understand that we may at any time, directly or indirectly, engage in similar arrangements with other sites that are on terms that may differ from those contained herein, or we may operate web sites that are similar to or compete with your web site.
You have independently evaluated the desirability of participating in our Program and are not relying on any representation, statement or promise other than as set forth in this Agreement.
18. Assignment
You may not assign this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent which shall not be unreasonably withheld. We will not assign this Agreement unless to change names or to complete a sale or merger to an entity that is capable of performing the assigned obligations. Subject to said restrictions, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
19. Limitation of Liability
HERBALSEX WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA OR SERVICES, ARISING IN CONNECTION WITH THE EXECUTION, OPERATION OR PERFORMANCE OF THIS AGREEMENT OR THE OPERATION OF THE HERBALSEX.COM OPERATED WEBSITES OR PRODUCTS, REGARDLESS OF WHETHER HERBALSEX WAS INFORMED OR HAD DIRECT OR IMPUTED KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS IN ADVANCE.
FURTHER, HERBALSEX.COM AGGREGATE LIABILITY WITH RESPECT TO THE EXECUTION, OPERATION OR PERFORMANCE OF THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF COMMISSIONS PAYABLE TO YOU UNDER THIS AGREEMENT. HERBALSEX.COM MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE HERBALSEX.COM WEBSITES, OR THE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE).
IN ADDITION, HERBALSEX.COM MAKES NO REPRESENTATION THAT THE OPERATION OF HERBALSEX.COM WEBSITES WILL BE UNINTERRUPTED OR ERROR FREE AND HERBALSEX.COM WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
20. General Provisions
20.1. In its performance of this Agreement and in the operation of each party's respective web sites, you and we each will comply with applicable laws, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction. Without limiting the generality of the foregoing, you and we each will pay, collect and remit such taxes as may be imposed with respect to any compensation, royalties or transactions under this Agreement.
20.2. Any notices under this Agreement shall be given in writing. Notice may be given by electronic mail and will be deemed delivered as given for all purposes on the sent date, but only if the receiving party has confirmed its receipt by return electronic mail. Notice sent via traditional means will be sent via certified mail, return receipt requested. Notices to Kinetro should be sent to:
HERBAL PRODUCTS GROUP
PO Box 2187
Tampa, FL 33601
USA
Attention: Affiliate Program Manager
20.3. The failure of either you or us to enforce any provision of this Agreement will not constitute a waiver of the right to subsequently enforce the provision. Any remedies specified in the Agreement are in addition to any other remedies that may be available at law or in equity.
20.4. This Agreement represents the entire agreement between you and us with respect to the subject matter hereof and supersedes any other oral or written agreements regarding such subject matter and may be amended or modified only by a written instrument signed by a duly authorized agent of each party.
20.5. If any provision of this Agreement will be declared by any court competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement will not be affected and will remain in full force and effect.
21. Disclaimers
We make no express or implied warranties or representations with respect to the Affiliate Program or your potential to earn income from the Affiliate Program. In addition, we make no representation that the operation of our site or the Affiliate Sites will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
22. Choice of Law and Venue
The laws of the United States, the State of Florida, and the County of Hillsborough, Florida, 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 the State of Florida, and the County of Hillsborough, Florida, and you irrevocably consent to the jurisdiction of such courts.
23. Informed Assent
By clicking on the "Sign up now" button below, submitting the Affiliate Program Application form and accepting this Agreement, you acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated this Program and are not relying on any representation, guarantee or statement other than as set forth in this Agreement.
Sign up now!
|
|
