These terms and conditions (“Affiliate Agreement”) constitute a legal agreement between the person or entity (“Affiliate” or “you”) whose name and address appear in the application (“Application”) to participate in the Advanced Bionutritionals LLC Affiliate Program (the "Program"), available through the Affiliate Program. Subject to the terms specified herein, Affiliate may receive compensation for promoting the products of Advanced Bionutritionals LLC (“AB” or “Advanced Bionutritionals”) by using advertising messages including, but not limited to, testimonials, endorsements, blogs, demonstrations, web sites, banner ads, links, and search engine optimization tools (collectively, “Ads”).
1. Your Responsibility
- a.
You shall promote AB’s products using promotional materials, content, messaging, ads, graphic files, and similar media supplied or approved in advance by Advanced Bionutritionals (“Creative”). You agree that the Creative constitutes AB’s intellectual property and shall not be reproduced without AB’s express, written consent. In performing services under this Agreement, you shall not use any marketing or promotional materials not provided by AB unless you first receive AB’s prior written consent. Advanced Bionutritionals shall have the exclusive right to determine the acceptability of such materials. You shall not edit, alter, or make any changes to the Creative, without prior written approval from AB. If Affiliate changes the Creative without AB’s prior written consent, Affiliate shall forfeit all payments under the Agreement and AB may terminate this Agreement. AB may change or remove any Creative for any reason, with or without notice. You shall discontinue use and dissemination of the Creative within two (2) business days of AB’s request.
- b.
Pricing: You are prohibited from offering discounts, coupons, and bundle offers to third parties for AB’s products.
- c.
Links on Your Site: You may select one or more of AB’s products to list on your site and shall display on your site an approved description, banner, or other reference. You will be provided a special dedicated link from each product reference on your site, which will connect the user to AB’s site and will track and attribute any sales made through your site. To permit accurate tracking, reporting, and fee accrual, you must ensure that these tracking links are properly formatted and functioning. You shall not alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective any site tags, source codes, links, pixels, modules or other data provided by or obtained from AB that allow AB to measure performance of Affiliate and calculate payments. You agree to promptly make any changes to your references or links to our products that we may request.
- d.
Referral Fees: Whenever a visitor makes a sale through your affiliate link, your affiliate ID is credited with a onetime referral fee that is specified for each offer in your affiliate portal. The commission/referral fee amount varies from offer to offer. For a product sale to generate a referral fee, the purchaser must: follow a special link (in the format specified by AB) from your site or email sent by you to your permission-based email list, purchase the product using our ordering system and remit full payment to AB (or allow a third party to remit such payment without asserting a chargeback or similar credit).
- e.
Commission Payments: We pay commission fees for balances exceeding $100 (One Hundred and 00/100 U.S. dollars) on the 15th of each month for sales that occurred in the prior month. For example, on November 15th, we will pay commission fees for sales made in October.
Commission Adjustments - Customer returns DO NOT cause adjustments to commission fees. However, we DO adjust commission fees for orders that we are unable to process and fulfill. For example, orders resulting from fraud would cause an adjustment.
Taxes on Commissions - You shall be responsible for paying taxes on your earnings derived from this relationship. Your commission fees may be adjusted if we are required to withhold taxes under applicable law.
New affiliates are subject to an initial 60-day trial period. During this time, commissions are held until the month following the trial period. For example, if you sign up on April 1st, you will be in the trial period until May 30th. All commissions earned during April and May would be paid on June 10 provided they meet the other commission payment requirements above. Thereafter each month’s eligible commissions will be paid on the 15th of the month for the prior month.
If you wish to dispute AB’s sales reports, you shall contact affiliate manager at [email protected] within thirty (30) days of the date of the disputed report. AB will work with you in good faith to resolve any such dispute; however, AB shall make the final determination as to resolution of all disputes. Unless otherwise arranged with AB and confirmed in writing, payments to you will be made via the PayPal account you provide to AB. U.S. Affiliates MUST complete a W9 before receiving any commissions. AB affiliate program is available to U.S. Affiliates only.
- f.
Access Sales Reports: Affiliates may access sales reports attributable to their referrals, including conversion data, campaign links, banners, email assets, and commissions earned, by logging into AB’s affiliate portal. You agree that AB owns all such information, and you shall not rent, sell, loan, share, barter or otherwise transfer or disclose such information to any third party without our prior written consent.
- g.
Personal Use of AB Products: The Program is intended for commercial use only, and you shall not purchase products through the Program for your own use or for you to give or sell to others. Such purchases may result, in our sole discretion, in the withholding of referral fees or the termination of this Agreement.
- h.
Responsibility for Your Site: You shall be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you shall be responsible for: the technical operation of your site, the accuracy and appropriateness of materials posted on your site, ensuring that materials on your site do not violate or infringe upon the rights of any third party (such as copyrights, trademarks, privacy, or other personal or proprietary rights), ensuring that materials posted on your site are not libelous or otherwise illegal, and ensuring that you link to AB’s site in the format specified by us. In addition, you agree that you shall not directly or indirectly disparage AB’s brand or products, or take any action that threatens our brand integrity (in our sole discretion). Further, you shall indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys’ fees) relating to the development, operation, maintenance, use and contents of your site.
- i.
Proprietary Information. You agree that Advanced Bionutritionals owns all rights, title, and interest to the Creatives, products offered for sale by Advanced Bionutritionals, links, and user data collected through the Program, and all name, logos, trademarks, service marks, trade dress, logos, graphics, artwork, text, proprietary technology and any data, reports, information or analyses arising out of the Program (“Proprietary Information”). Affiliate shall have no interest in or right to the Proprietary Information, and AB owns and shall retain all rights to, titles and interest in its Proprietary Information.
- j.
Confidential Information. Affiliate shall not disclose AB’s product plans, products, services, pricing, business and financial information, customer and vendor lists, mailing lists, marketing plans, opportunities, trade secrets, markets, software, developments, inventions, processes, designs, drawings, engineering, technical data, know-how, hardware configuration information, marketing or financial data (collectively “Confidential Information”) to any third party, except as required by law to fulfill its obligations hereunder. In the event that Confidential Information is required to be disclosed by operation of law via a third party or court request such as a subpoena, Affiliate shall immediately inform AB in writing sufficiently in advance of disclosure to allow AB to challenge disclosure, prior to the time commanded to produce or disclose such Confidential Information
2. Effective Date; Termination.
- a.
The effective date of this Agreement shall be the date that Affiliate submits its Application to participate in the Program and AB accepts Affiliate’s Application to the Program. Participation in the Program is subject to AB’s prior approval. AB reserves the right to refuse or revoke Affiliate’s acceptance in the Program at any time, with or without cause. Affiliate shall immediately update any information provided in Affiliate’s Application to ensure that AB’s records for Affiliate remain current.
- b.
AB may terminate this Agreement and Affiliate’s right to participate in the Program at any time, with or without cause, upon notice to Affiliate, which will be provided via email. Termination is effective upon date of notice. Upon termination, AB shall determine, in its sole discretion, any referral fee amounts owed to Affiliate, and any fees owed to Affiliate shall be paid during the next billing cycle; Affiliate shall discontinue using the Creatives; and Affiliate shall return to AB all Confidential Information and Proprietary Information. If Affiliate breaches this Agreement, it shall forfeit any and all payments owed and paid under this Agreement.
3. Compliance Requirements.
Affiliate represents and warrants that it will at all times comply with the requirements listed in this Section 3:
- a.
Affiliate shall fulfill the obligations under this Agreement in compliance with all laws and regulations, including without limitation the CAN-SPAM Act of 2003 and all state anti-spam laws including California Business & Professions Code Section 17529.5, California Civil Code Section 1798.83, the Federal Trade Commission Act, the California Online Privacy Protection Act, the Children’s Online Privacy Protection Act, and any and all other federal, state, and local consumer protection laws, regulations, and standards; Affiliate has disclosed to AB, prior to executing this Agreement, the existence of any past federal or state decrees, orders, or consent agreements, and any pending formal or informal government investigations or prosecutions by the Federal Trade Commission, any other federal or state governmental or regulatory body or agency, or any industry regulatory authority against Affiliate or any Sub-Affiliate; Affiliate owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on all materials that Affiliate uses that AB does not provide to Affiliate; Affiliate shall not use fraud or deceit when promoting AB’s products; Affiliate shall display each Creative exactly as it is provided or approved in writing by AB, and Affiliate shall not alter any Creative without AB’s prior written approval; any website or link to a website used by Affiliate in connection with this Agreement shall be (a) content-based and not simply a list of links or advertisements, (b) be written in English and contain only English-language content, (c) have a top-level domain name, and (d) be fully functional at all levels and have no “under construction” websites or sections; the recipients of all email addresses used by Affiliate in connection with this Agreement have provided affirmative, direct consent to receive commercial emails from Affiliate and AB; Affiliate shall not fraudulently add leads or clicks or inflate leads or clicks by Fraudulent Events (as determined solely by AB); Affiliate shall not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the site tags, source codes, links, pixels, modules or other data provided by or obtained from AB that allow AB to measure performance and provide its services; Affiliate shall not engage in or promote any illegal activities of any kind in association with this Agreement; and Affiliate shall not use text messaging, outbound calling, or telephone marketing of any kind to provide services under this Agreement.
- b.
Affiliate represents and warrants that it shall not use Sub-Affiliates to perform services under this Agreement without AB’s prior written consent. If Affiliate uses Sub-Affiliates, Affiliate shall contractually bind all Sub-Affiliates to the terms of this Agreement. Affiliate agrees that for the purposes of this Agreement, the acts and omissions of Sub-Affiliates shall be deemed Affiliates’ acts and omissions regardless of whether such Sub-Affiliates bound themselves to this Agreement or any other agreement. Affiliate is responsible for breach of this Agreement by any Sub- Affiliates regardless of whether Sub-Affiliates execute this Agreement or any other agreement. Affiliate shall periodically monitor Sub-Affiliates for compliance with this Agreement and shall allow AB to audit and monitor all Sub-Affiliates. If Affiliate or any Sub-Affiliate becomes involved or named in any action, investigation, complaint or other proceeding by or before any governmental or regulatory authority, or private party, Affiliate shall immediately notify AB of such action, investigation, complaint or other proceeding, in which event AB may terminate this Agreement immediately and without notice to Affiliate.
4. Ad Requirements.
All Ads created by Affiliate to promote AB’s products are subject to the following requirements and restrictions. Failure to comply with these requirements shall constitute “Fraudulent Events”, and AB shall be under no obligation to pay Affiliate for any Fraudulent Events:
- a.
Ads shall not include content that is deceptive, misleading, untruthful, unsubstantiated, or otherwise fails to comply with federal and state consumer protection laws, regulations, rules, and guidelines.
- b.
Ads shall not include any claim regarding the efficacy of any AB product or services, or any ingredients contained therein, unless Affiliate possesses a reasonable basis for such claim and has received AB’s prior express written approval of such claim.
- c.
Ads shall be content-based, not simply a list of links or advertisements.
- d.
Ads shall not include any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating events, or otherwise attempt to induce Internet users to click on any advertisement through the use of any other incentives or surveys. Affiliate shall not place AB’s Creatives on any incentivized website or use any incentives to procure clicks or leads.
- e.
Ads shall be fully functional at all levels, with no "under construction" sites or sections or blank pages.
- f.
Ads shall not spawn process pop-ups or use any downloadable application.
- g.
Ads shall not contain, promote, or have links to profanity, sexually explicit materials, hate material, libelous or defamatory material, degrading material, or material that promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials deemed unsuitable or harmful to the reputation of AB, in AB’s sole discretion.
- h.
Ads shall not promote or reference illegal activities including, without limitation, the promotion of gambling, illegal substances, software piracy, or hacking.
- i.
Ads shall not be labeled as an “official site” or similar designation or include any other designation indicating the Ad is an “official” advertisement or web site of AB or its products.
- j.
Ads shall not promote Internet abuse, including but not limited to, the sending of unsolicited bulk electronic mail.
- k.
Ads shall not be a communication to a wireless device by text messaging or outbound telephone calls in any form. Ads shall not constitute advertising via facsimile or telemarketing (including, without limitation, by use of prerecorded or artificial voice messages).
- l.
Ads shall not include any “worm,” “virus” or other device that could impair or injure any person, entity, or equipment.
5. Email.
- a.
Obtain AB’s prior express written consent to conduct email marketing to promote AB’s products. If you plan to write your own email copy or alter the ones the AB affiliate program manager has provided, you MUST receive approval to do so. No COVID-19 references are allowed or disease claims of any kind.
- b.
Deliver emails to addresses on email lists owned or managed solely by Affiliate (“Affiliate’s Email List”). Affiliate shall maintain complete and accurate subscriber sign-up/registration data for every email address on Affiliate’s Email List. Within twenty-four (24) hours of AB’s request, Affiliate shall provide the following sign-up and registration data for any email address to which any email is sent under this Agreement: (a) subscriber’s IP address; (b) date and time of subscriber’s sign-up/registration; and (c) location and URL of website of subscriber’s sign-up and registration.
- c.
Refrain from sending emails to email addresses that have been improperly obtained, including addressees harvested from the Internet, through scripts or other automated means of registering for multiple email accounts, or “scraping” of websites. Affiliate is responsible for knowing the source of its email list. Affiliate shall not use email accounts or domain names that were created using information that falsifies the identity of the registrant.
- d.
Remove from the transmission list any email address associated with any person who has requested not to receive commercial email solicitations from Affiliate.
- e.
Remove from the transmission list any email address associated with a wireless domain name listed on the then-current list of wireless domains maintained by the Federal Communications Commission.
- f.
Ensure that each email message includes (i) clear and conspicuous notice of the recipient’s right to opt-out of receiving future commercial messages from Affiliate; and (ii) a functional electronic mechanism that the recipient can use to make such an opt-out request, in compliance with the requirements of the CAN-SPAM Act and Federal Trade Commission regulations and guidelines implementing the CAN-SPAM Act.
- g.
Ensure that “subject” and “from” lines used in any email communications are truthful and non-misleading and do not otherwise violate the CAN-SPAM Act or any other federal and state consumer protection laws and regulations (including but not limited to California Business & Professions Code § 17529) and do not infringe on the intellectual property rights of any third party.
- h.
Include accurate email header information (including source, destination, date and time, and routing information) on all emails.
6. Allowed Traffic Sources.
- Organic search (exclude product-specific keywords, Advanced Bionutritionals brand keywords, and AB’s doctor names keywords)
- Social media (NO FB ads allowed)
- YouTube Ads
- Email (your own list)
- Banner/display
- Mobile
- Native
Non-Allowed Traffic Sources
7. Testimonials and Endorsements.
- a.
As used in this Agreement, an “Endorsement” means any ad (including but not limited to Affiliate testimonials or endorsements, other consumer testimonials or endorsements, celebrity or expert endorsements, blogs, verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name, logo or seal of an organization) that consumers are likely to believe reflect the opinions, beliefs, findings, or experience of a party other than AB. The party whose opinions, beliefs, findings, or experiences the Endorsement appears to reflect shall be referred to as the “Endorser”.
- b.
Endorsements shall reflect the honest opinions, findings, beliefs and experience of the Endorser, and shall not convey an express or implied representation that would be deceptive if made directly by AB or Affiliate.
- c.
Endorsements shall not be presented out of context or reworded so as to distort the Endorser’s opinion or experience with an AB product.
- d.
If the Endorsement represents that the Endorser uses an AB product, the Endorser must have been a bona fide user of it at the time the Endorsement was given.
- e.
No Endorsement containing statements reflecting the objective experience of an individual or group on a central or key attribute of an AB product may claim that the experience is representative of what consumers will achieve.
- f.
Affiliate must include in the Ad a clear and conspicuous disclosure, in close proximity to the Endorsement, that Affiliate has been or will be paid for the Endorsement and disclose the material connection between Affiliate and AB. Example of an acceptable disclosure includes: “I may earn compensation for my review, promotion or mention of the Advanced Bionutritionals products discussed on this website.”
8. Compliance Monitoring. AB may, but is not required to, monitor or audit Affiliate on a regular basis, on its own or with the assistance of third parties, for compliance with this Agreement and applicable laws, rules, and regulations. AB reserves the right, in its sole discretion, to investigate, withhold payment, suspend and terminate Affiliate for any suspected or actual violations of this Agreement or law, rule, or regulation.
9. Disclaimer of Warranties; Limitation of Liability.
AB provides the program and creatives on an "as is" and “as available” basis without any warranty of any kind. To the fullest extent permitted by law, AB disclaims all warranties of any kind, whether express, implied, oral, written, or otherwise, including but not limited to the implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance, except as expressly set forth herein. Without limiting the foregoing, AB does not warrant or guarantee sales, conversion rates, commission rates, ad response rates or ability to convert the responses into sales. All services are contingent upon AB’s ability to procure necessary on-line and other communications access and AB is not responsible for delays caused by accident, war, act of god, embargo, computer system failure, or any other circumstance beyond its control. Under no circumstances shall AB be liable to affiliate for indirect, incidental, consequential, special or exemplary damages (even if Affiliate hereby agrees to indemnify, defend, and hold h
AB has been advised of the possibility of such damages). AB shall not in any event be liable to affiliate for more than the amount paid to affiliate under this agreement. No action, suit or proceeding shall be brought against AB more than one year after the date of the event that gave rise to the action, suit, or proceeding.
10. Indemnification.
Affiliate hereby agrees to indemnify, defend, and hold harmless AB and its respective officers, directors, agents, affiliates, employees, successors, and assigns from and against all claims, causes of action, suits, liabilities, damages, costs, expenses and fees (including attorneys' fees) arising out of or related to any act or omission by Affiliate including but not limited to: (a) violation of any law, rule or regulation; (b) breach or violation of this Agreement (including, but not limited to a breach of Affiliate’s representations, warranties, covenants, or agreements under the Agreement); (c) any inaccuracies or omissions contained in Affiliate’s Application; (d) any acts or omissions of any Sub-Affiliate or any other parties working with such Sub-Affiliate related to this Agreement (as applicable); (e) improper use of the Creatives by Affiliate; and (f) any claim relating to the violation or infringement of the intellectual property rights of any third party. AB shall have the right to participate fully, including choosing counsel, in the defense of any action for which indemnity is sought. Any compromise or settlement of any action for which indemnity is sought shall require AB’s prior written consent.
11. General Provisions
- a.
Relationship of Parties. For purposes of this Agreement, each party shall be and act as an independent contractor. This Agreement does not constitute, create, or give rise to any employer/employee or franchiser/franchisee relationship, nor any joint venture, partnership, limited partnership, or agency among the parties. Neither party has any right or authority to obligate or incur costs on behalf of the other party without the other party’s prior written consent.
- b.
Assignment. This Agreement shall be binding upon and inure to the benefit of AB’s subsidiaries, successors, and assigns. Affiliate shall not assign any of its rights or privileges hereunder without AB’s prior written consent.
- c.
Mutual Representations. Each party represents and warrants that it has the full right and authority to enter into this Agreement, and each party has obtained all licenses, authorizations, consents or permits required to perform its obligations under this Agreement and to conduct its business.
- d.
Severability. If any provision of this Agreement is held to be ineffective, unenforceable or illegal for any reason, such decision shall not affect the validity of any or all of the remaining portions thereof.
- e.
Entire Agreement; No Waiver. This Agreement constitutes the entire agreement and supersedes all prior agreements of the parties with respect to the subject matter set forth herein. No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
- f.
Governing Law. This Agreement shall be governed by and construed under the laws of the State of Georgia without regard to its conflicts of law provisions. In the event of a dispute, the parties shall submit the dispute to binding arbitration in the State of Georgia, conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. Notwithstanding the foregoing, AB may initiate a dispute either by submitting it to binding arbitration or by filing in a state or federal court located in the State of Georgia.
- g.
Entire Agreement; Modifications. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Applicable sections shall survive expiration or termination of this Agreement. AB reserves the right to modify this Agreement at any time, with or without notice to Affiliates. Affiliate’s continued use of or participation in the Program after any such changes constitutes Affiliate’s agreement to the changes.
- h.
Notices. All notices to Advanced Bionutritionals must be sent to: Affiliate Manager, AB, 5305 Oakbrook Pkwy, Norcross, GA 30093; or by e-mail to [email protected].