NON-EXCLUSIVE AFFILIATE AGREEMENT
THIS NON-EXCLUSIVE AFFILIATE AGREEMENT (“Agreement”) is made by and between TOP TRAINER LLC (hereinafter “the company”) and AFFILIATE(s) collectively called as parties.
WHEREAS, this agreement WITNESSETH that in consideration of conditions contained herein, it is covenanted agreed and declared by and among the Parties (as defined herein) as follows:
TERMS AND CONDITIONS
SECTION 1: PURPOSE
The company is in the business of developing, marketing, selling apparel, workout and nutrition Guides. The company intends to launch an affiliate program and engage the affiliate, and the affiliate agrees to sell the products of the company listed in Exhibit 1 as an independent, non-exclusive sales representative in the territories provided in Exhibit 2 on the terms and conditions provided herein. The company reserves the right to contract with other sales representatives in the territory and to sell the products itself in the territory.
SECTION 2: PRODUCTS
The affiliate shall sell the products listed in Exhibit 1. The company may amend Exhibit 1 upon notice to Affiliate at any time to include additional products, and such additional products will thereafter be considered "products" within the meaning and subject to the terms of this Agreement. Additional products may be added by the company through email correspondence.
SECTION 3: AFFILIATE PROGRAM
The affiliate program launched by the company shall be termed "MAILBOX MONEY FOR GYMS" and may be referred to as "MBM4G."
SECTION 4: FEE & COMMISSION
4.1 The company offers a yearly membership fee of $100. The aforesaid subscription shall be automatically renewed on the anniversary of such a subscription. If the affiliate intends to cancel the subscription, it shall give 30 days' prior written notice to the company before the renewal date.
4.2 The affiliate shall be paid a fixed commission depending on the nature of product. However, the fixed commission shall not exceed 50 percent except if determined otherwise by the company at its sole discretion.
SECTION 5: TERM AND TERMINATION
The term of this agreement (the "term") shall be from the date of its execution and shall continue on a month-to-month basis, subject to termination by either party on twenty-four (24) hours’ prior written notice, which termination shall be immediately effective upon the expiration of the twenty-four (24) hour period. The Company and Affiliate shall each have the right to immediately terminate this Agreement at any time with or without any cause.
Commission payouts are based solely on the price of Products sold and not reflective of any shipping and/or taxes. All Commission payments shall be made through PayPal to the PayPal address designated by Affiliate. It is Affiliate’s responsibility to provide an accurate PayPal address. The Company will not be liable for any Commissions which are not received or are delayed as a result of the Affiliate’s failure to provide accurate PayPal information. Affiliate agrees to notify the Company immediately in writing with any changes to Affiliate’s account information. Changes to Affiliate’s PayPal account or other information may require reverification and as such incur the withholding of Commission payments. All Commission payouts will expire after thirty (30) calendar days if Affiliate’s PayPal information remains unverified.
SECTION 6: TERMS AND CONDITIONS OF SALE
If a customer desires to place an order for the Product(s) (each, a “Purchase Order”), Affiliate shall assist the customer in filling out the Company’s standard order form and then Affiliate shall enter the Purchase Order into the Company’s online ordering system. Each customer is required to have their own unique account which includes the customer’s full name, email address, physical address, and any other information about the customer that is required to submit a Purchase Order. Alternatively, customers may place orders directly by using the link provided by Affiliate, which orders must also be placed using a unique account for the customer that includes the customer’s full name, email address, physical address, and any other information about the customer that is required to submit a Purchase Order. Affiliate shall notify each customer that the Company may elect to accept or reject a Purchase Order in its sole and absolute discretion. All accepted Purchase Orders will be fulfilled directly by the Company to the customer.
SECTION 7: EXISTING AFFILIATE
If Affiliate is an employee of an Existing Affiliate program, then such Existing Affiliate shall be considered a referral partner of the Company and all Commissions otherwise payable to Affiliate shall be paid to the Existing Affiliate. Affiliate acknowledges and agrees that the Company shall have no liability whatsoever to Affiliate if Affiliate is a current employee of an Existing Affiliate, and Affiliate forfeits any Commissions if it is an employee of an Existing Affiliate. Further, if Affiliate falsifies information resulting in Commissions belonging to an Existing Affiliate being paid to Affiliate, then all such Commission received by Affiliate shall be promptly returned to the Company.
SECTION 8: MASTER AFFIIATE PROGRAM
Each Affiliate has the opportunity to participate in Company’s Master Affiliate Program through the Affiliate’s online portal. If this option is elected, such Affiliate (“Master Affiliate”) will be paid a commission (“Referral Commission”) for sales made by each new Affiliate that Master Affiliate refers to Company and which Company approves as an Affiliate (each, a “Referral Affiliate”). Company shall have the sole and absolute right to determine whether any referral will be approved as a Referral Affiliate. Referral Commissions shall equal five percent (5%) of the price of Products sold by each Referral Affiliate referred by Master Affiliate and approved by Company, excluding any shipping and/or taxes payable on such sales. Master Affiliates will be provided two dashboards within their respective portal, one for its own Product sales, and one for Referral Affiliates. Master Affiliate shall be responsible for providing any potential Referral Affiliate with the referral link provided by Company, which will be used to track potential Referral Affiliates that Master Affiliate refers to Company for purposes of determining Master Affiliate’s Referral Commissions. Master Affiliate shall not use any paid advertising in connection with Master Affiliate’s referral link. Master Affiliate is solely and exclusively responsible for directing any potential Referral Affiliate to the website in order to apply to become a Referral Affiliate. Master Affiliate shall only be entitled to, and shall only receive, Referral Commissions for sales made by Referral Affiliates that Master Affiliate directly refers to Company and which are approved by Company, and not sales made by any additional Affiliates that Master Affiliate’s Referral Affiliates may refer to Company.
Master Affiliate Referral Commissions shall be paid in accordance with the schedule provider hereafter. Each month will be broken into four (4) payment cycles as follows: (i) Cycle 1: 1st-8th day of the month; (ii) Cycle 2: 9th-16th day of the month; (iii) Cycle 3: 17th-24th day of the month; and (iv) Cycle 4: 25th-last day of the month. Master Affiliate Referral Commissions shall be paid by Company to Affiliate no later than four (4) calendar days following the end of the applicable payment cycle in which the Company receives payment for Purchase Orders submitted by Affiliate or through Affiliate’s sales link for customers within the Territory. Commissions payable hereunder shall be based solely upon actual amounts collected from (not billed to) the accounts. All Master Affiliate Referral Commissions payments shall be made through PayPal to the PayPal address designated by Affiliate. It is Affiliate’s responsibility to provide an accurate PayPal address. The Company will not be liable for any Master Affiliate Referral Commissions which are not received or are delayed as a result of the Affiliate’s failure to provide accurate PayPal information. Affiliate agrees to notify the Company immediately in writing with any changes to Affiliate’s account information. Changes to Affiliate’s PayPal account or other information may require reverification and as such incur the withholding of Commission payments. All Commission payouts will expire after thirty (30) calendar days if Affiliate’s PayPal information remains unverified. Master Affiliate shall provide reasonable sales support to all of Master Affiliate’s Referral Affiliates. All obligations undertaken by, and all representations and warranties provided by Affiliates in this Agreement apply equally to Master Affiliates. Special commission rates may be applied from time to time at the sole discretion of the Company to consummate specific sales transactions or promotions.
SECTION 9: MARKETING
The Company may provide Affiliate with Product samples, marketing, and promotion materials that can be used to demonstrate and explain the Products, as the Company deems appropriate (collectively, the “Marketing Materials”). Upon termination or expiration of this Agreement, or at any time upon the request of the Company, Affiliate shall immediately return to the Company the Marketing Materials in Affiliate’s possession or control. Affiliate agrees that if the Company notifies Affiliate that the Company has changed its Marketing Materials, Affiliate shall promptly cease all use of the prior Marketing Materials. Affiliate further agrees to indemnify the Company from any and all claims and losses resulting from Affiliate’s failure to cease using such prior Marketing Materials.
SECTION 10: RIGHTS AND DUTIES
During the Term, Affiliate shall:
i. Use its best efforts to promote and market the Products to accounts within the Territory;
ii. Use best efforts in informing and directing customers purchasing the Products on using Company’s website.
iii. Maintain the highest professional and ethical standards in all interactions, including all sales transactions with customers and Company;
iv. Maintain professionally reasonable positive and consistent communications with the Company as needed in a commercially reasonable manner;
v. Use best efforts to instruct or train other team members in the fulfillment of their duties as it relates to the terms of this Agreement and transactions that occur hereunder;
vi. Accurately describe the business, Products, and affairs of the Company;
vii. Enter any Purchase Order for the Products promptly to the Company with the understanding that such orders will not be considered binding until expressly accepted by the Company;
viii. Offer the Products to accounts within the Territory at such prices as shall be established from time to time by the Company within the Affiliate’s dashboard;
ix. Inform the Company of any operational difficulties being experienced or anticipated;
x. Offer to the Company ideas of ways to improve and make effective the marketing activities;
xi. Not use the Company’s name or any trade name used by the Company as part of Affiliate’s firm, trade or corporate name without the express written consent of the Company;
xii. Not purchase the Products from the Company with the intent to resell them.
SECTION 11: FINAL APPROVAL AUTHORITY
All Purchase Orders solicited by Affiliate for the Products shall be subject to final approval and acceptance by the Company, in its sole and absolute discretion. Affiliate is not authorized to enter into any binding contract or commitment as agent for the Company. Affiliate shall not offer discounts, markdowns, return authorizations or adjustments to accounts within the Territory without the prior consent of the Company.
SECTION 12: EXPENSES
Affiliate shall be solely responsible for the payment of all expenses incurred by it in discharging its responsibilities and obligations under this Agreement including, but not limited to, automobile and travel expenses, food, lodging, telephone expenses, occupational and business licenses, insurance, mailing, copying, etc.
SECTION 13: NATURE OF RELATIONSHIP
Affiliate shall be considered an independent contractor for all purposes and shall not be deemed to be an employee or agent of the Company for any reason. Affiliate shall have the general ability and right to determine the manner in which the services described herein shall be performed and shall not be required to adhere to any specific working hours. Affiliate shall accept full and exclusive liability and responsibility for the payment of any and all taxes, contributions or other sums payable for unemployment compensation or insurance and all age retirement benefits, as well as all other Federal, State and local income and payroll taxes, as well as Tax, payable by reason of Affiliate’s receipt of Commissions from the Company and for the preparation and filing of all related tax returns.
SECTION 14: OWNERSHIP AND CONFIDENTIALITY
Affiliate acknowledges and agrees that the Company has expended significant time and expense to develop the Products and unique marketing program by which the Products are to be sold. Affiliate acknowledges that in connection with its duties under this Agreement, Affiliate shall have access to, receive and be entrusted with what Affiliate and the Company acknowledge are trade secrets and confidential information that are the exclusive property of the Company. For purposes of this Agreement, “Confidential Information” means all information of any kind, type or nature (written, stored on magnetic or other media or oral) which at any time during the term of this Agreement is or has been compiled, prepared, devised, developed, designed, discovered or otherwise learned of by Affiliate in connection with this Agreement, including, without limitation,
i. all contract terms, price lists, pricing information, sales presentations, marketing plans, trade secrets, methods, techniques, processes, and confidential trade knowledge and computer programs of the Company and/or its affiliates;
ii. any work product of the Company and/or its affiliates;
iii. prospective and current customers, licensors, licensees, service providers, vendors and distributors of the Company and/or its affiliates;
iv. strategies, budgets, business plans, financial statements, projects and other financial information of the Company and/or its affiliates;
v. know-how, financial, customer, demographic and other information concerning the methods of development and operation of the Company and/or its affiliates;
vi. research, development, designs, code, formulas, patterns, product formulations, compilations, devices, current and proposed products, platforms or services, marketing, promotions, sales and other business plans of the Company and/or its affiliates; and
vii. information concerning the personal and/or business affairs of the Company’s executives, employees, officers, managers, members and directors. Notwithstanding the foregoing, any such information which is now or becomes known to the public other than by disclosure in violation of this Agreement or any similar confidentiality agreement shall not be deemed to be Confidential Information if it was:
a. previously known or available to Affiliate by or from a third-party source who directly or indirectly did not violate any confidentiality obligation to the Company; or
b. obtainable by a reasonably diligent businessperson from trade publications or other readily available and public sources of information.
viii. Affiliate shall not, at any time from and after the date hereof and continuing after termination or expiration of this Agreement, directly or indirectly, disclose, reveal or permit access to all or any portion of the Confidential Information, or any tangible expressions or embodiments thereof to any individual, corporation, limited liability company, partnership, trust or other entity (collectively, “Person”) without the written consent of the Company, except:
a. to Affiliate’s legal counsel or accountants who have a “need to know” such information for the purpose of evaluating and/or enforcing Affiliate’s rights under this Agreement (provided that such legal counsel agrees to abide by the confidentiality provisions of this Agreement); and
b. as required by law.
In addition, Affiliate shall not publish, authorize or cause to be published or otherwise assist or cooperate in the preparation or presentation of, any book, blog, post, Tweet, article, interview, program or other production or publication of any kind, whether fiction or non-fiction (including, without limitation, by television, radio, newspaper or interactive media such as Facebook, Twitter or any other interactive social network or personal blog) that includes or makes use of any material or information that becomes available to Affiliate, whether or not related to this Agreement, concerning the Confidential Information and/or any executives, employees, officers, managers, members and directors of the Company or its affiliates.
SECTION 15: NON-COMPETITION
During the Term and for a period of 12 months after the termination or expiration of this Agreement for any reason, Affiliate agrees that Affiliate will not, directly or indirectly, on Affiliate’s own behalf or as a partner, officer, director, member, manager, stockholder, employee, agent or consultant of any other person or entity, interfere with the Company’s business by inducing, persuading or attempting to persuade any accounts within the Territory to discontinue their business with the Company.
SECTION 16: REMEDIES
Affiliate acknowledges that if Affiliate breaches any of the provisions of this Agreement, and as a result of which the Company suffers irreparable harm for which monetary damages alone will not be a sufficient remedy, and that the Company shall be entitled to seek, through arbitration or in a court of law or equity injunctive relief, specific performance or any other form of equitable relief to remedy a breach or threatened breach of this Agreement by Affiliate and/or to enforce the provisions of this Agreement, in addition to any and all other remedies that the Company may have. The Company shall be entitled to recover from Affiliate any costs (including attorneys’ fees, costs and expenses) incurred to enforce its rights or collect any amounts due to it hereunder.
SECTION 17: INDEMNIFICATION
Affiliate shall indemnify, hold harmless, and defend the Company and each of its officers, directors, members, managers, executives, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, the costs of enforcing any right to indemnification under this Agreement resulting from the breach or nonfulfillment by Affiliate of any of its obligations.
SECTION 18: RETURN OF PROPERTY
Upon the termination of this Agreement or whenever requested by the Company, Affiliate shall return to the Company all property of the Company and its affiliates in Affiliate’s possession or under Affiliate’s direct or indirect control, including, without limitation, all Confidential Information, notebooks and other materials, documents, diaries, calendars and data of or relating to the Company or any affiliate, whether printed, typed, written or on any source of computer media.
SECTION 19: NON-DISPARAGEMENT
During the Term of this Agreement and at all times thereafter, Affiliate shall not make any statement, written or verbal, to any party reasonably likely to be harmful or injurious to the goodwill, reputation or business standing of the Company or any of its members, managers, officers, directors, agents, employees or executives.
SECTION 20: LICENSE
Affiliate hereby grants to Company a royalty free, irrevocable, worldwide right and license to use photographs, testimonials, reviews, videos, trademarks, service marks, and such other materials (collectively, the “Affiliate Materials”) as may be requested by Company or provided or made available by Affiliate to Company including, but not limited to, Affiliate Materials featuring customers of the Products. Affiliate shall obtain from all customers or other individuals appearing in the Affiliate Materials written agreements, permission or releases on forms to be supplied by Company. Affiliate shall provide copies of all such agreements, permissions, and releases (collectively, “Releases”) to Company promptly upon Company’s request for same. Affiliate shall indemnify, defend and hold harmless Company from and against any and all claims, causes of actions, losses, liabilities, damages, costs, fees, and expenses (including without limitation reasonable attorneys’ fees, costs and expenses) as a result of Affiliate’s failure to obtain any such Releases. Affiliate also acknowledges that Company may at times videotape, photograph, and otherwise reproduce via analog or digital means (collectively, “Recording(s)”) Affiliate’s image, likeness and/or voice, and Affiliate agrees that Company has the right to transfer and assign all rights associated with such recording, including without limitation the right of publicity. Affiliate agrees that Company and any assignee may use any Recording or Affiliate Material in any written material, art work, image, video or website to advertise Company and/or its Products or its assignee’s business, without advance notice, and without right to compensation or accreditation.
SECTION 21: MISCELLANEOUS
1. All notices and other communications given or made in connection with this Agreement shall be in writing and shall be deemed to have been given or made when given or made if such notice or communication is in writing and delivered personally, sent by commercial carrier or registered or certified mail (postage prepaid) or transmitted by electronic mail to the applicable Party.
2. This Agreement shall be construed under and in accordance with the laws of the State of Texas without regards to any choice of law or conflicts of laws principles. In the event of any dispute all the matters shall be referred to the competent Court in Texas.
3. Affiliate agrees to comply with all laws and regulations of the jurisdiction in which Affiliate promotes the Products. All promotional efforts and material must be truthful, non-deceptive and non-misleading. Affiliate is expected to be aware of and comply with any local regulations governing their promotional efforts, regardless of their citizenship or location.
4. Affiliate shall avoid using trademarks of competing products for comparison purposes without clear disclosures that the competing product is not associated with the promotional activities of Affiliate or the product being promoted. Affiliate shall avoid making any factual statements about competing products that could be construed as inaccurate, misleading, or defamatory. Affiliate shall not use any “bait and switch” advertising to promote the sale of a product different from that which is advertised or promoted.
5. Affiliate shall not participate in any paid, sponsored or promoted advertising in connection with Affiliate’s services under this Agreement.
6. Affiliate shall insure that all pricing is correct and reflects the price for which customers may purchase the product promoted. Affiliate shall not use incorrect or expired discount, coupon, or rebate codes. Affiliate shall not advertise artificial or inaccurate scarcity or limited availability of products where no such limitation exists.
7. Affiliate shall avoid promoting products or services to children under the age of 18 within the United States, or under the age of majority in any country that regulates the importation or sale of health or beauty supplements to customers under the age of 18.
8. Affiliate represents and warrants that he/she/it shall comply with any and all state and federal laws and regulations governing the collection of payment card information and the processing of payment card transactions.
9. If any provision of this Agreement (other than a provision relating to any payment obligation) is held by the arbitrator or, if proper, a court of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of this Agreement shall be valid and enforceable to the extent granted by law.
10. This Agreement binds and benefits the Parties and their respective permitted successors and assigns. Affiliate may not assign it rights or obligations under this Agreement to any third party without the prior written consent of the Company. The Company shall have the right to freely assign this Agreement.
EXHIBIT 1
LIST OF PRODUCTS
· Vital Pack
· Multi-Plus
· Superfood Daily
· Reset
· Brain-Power.
· Joints 360
· Torch System
· Carb Shield
· Torch
· Tighten
· Slim Smoothie
· Tighten System
· Blast Stack
· Attack Hardcore
· BCAAs Plus
· Elite-Pro
· Cr-Power
· N.O. Pump
· T-Lyft
· 21 Day Fast Track Meal Plan
· Extreme Fat Loss Guide
· Evolve Total Body Workout
· Live Healthy Challenge
· Weight Loss Challenge
· Muscle Building Challenge
· Dream Body Bundle
· Guides & Apparel
· Any Bundles Containing a variety of products
EXHIBIT 2
TERRITORIES
SECTION 22: EFFECTIVENESS
This agreement takes effect when you click the "I ACCEPT” button below or by accessing the affiliate portal (the "effective date") by clicking on the "I ACCEPT” button below or by accessing or using the affiliate portal you:
a. acknowledge that you have read and understand this agreement;
b. represent and warrant that you have the right, power, and authority to enter into this agreement and, if entering into this agreement for an organization, that you have the legal authority to bind that organization; and
c. accept this agreement and agree that you are legally bound by its terms.
If you do not agree to these terms, please select the "I DECLINE” button below. if you do not accept these terms, you may not access our services.
□ I accept □ I decline
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