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DIET.COM
AFFILIATE PROGRAM AGREEMENT |
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This agreement governs
your participation in the Diet.com Affiliate Program.
The Diet.com Affiliate Program (the "Affiliate Program") is operated by Diet
Health, Inc. ("Diet Health"). In this agreement, the terms "Affiliate", "you"
and "your" refer to you (the applicant), and the "sponsoring Website" refers
to the Website from which you will link to Diet.com pursuant to the Affiliate
Program. |
1. Description of Affiliate Program |
The Diet.com Affiliate Program uses commissions
to compensate affiliates for driving qualified online traffic to http://www.Diet.com. Affiliates can login to
the Diet.com affiliate program section and utilize a self-service Web application
to access Diet.com links, banner ads, and other Links that link to the Diet.com
Site (collectively, the "Links"). Affiliates may include any or all such Links
on their sponsoring Websites. Users who link to the Diet.com Site via Links and
create a unique registration to the Service in the same session are attributed
to the corresponding affiliates that operate the relevant sponsoring Website.
When such users purchase subscriptions to the Service during the term of this
Agreement using such registration, the corresponding affiliate is eligible for
a commission for such subscription as described in Section 3 (Commission Fees)
below. |
2. Required Information; Affiliate Account |
In order to join the Affiliate Program, you
must enter into this Agreement as described in Affiliate Terms and Condition.
You must also provide Diet.com with the information required in the online
application form at the affiliate program section. As part of this process,
U.S.-based Affiliates must provide Diet.com with a social security number or
taxpayer ID number for payment and record keeping purposes. In addition, the
Affiliate must submit an executed IRS Form W-9 to Diet.com via mail to the
address set forth below under Section 18 (Notice). Failure to provide Diet.com
with an updated W-9 will result in the withholding of earned commission payments
until the form is received.
You are responsible for maintaining the confidentiality of the email address and
password that you designate as your login combination, and you are fully
responsible for all activities that occur under your email address and password.
You agree to immediately notify Diet.com of any unauthorized use of your email
address or password or any other breach of security. Diet.com and Diet Health
will not be liable for any loss or damage arising from your failure to comply
with this provision. |
3. Commission Fees |
Diet.com will pay you a commission fee on each
Qualifying Subscription to the Service purchased during the Term. "Qualifying
Subscription" means a first-time subscription purchased within 30 days after a
customer registers via linking to the Diet.com Site from the sponsoring Web site
via a Link. The amount of the Commission Fee
will be 50% of the initial purchase price of a Qualifying Subscription. Based
on Diet.com's standard subscription prices as of August 1st, 2004, the
Commission Fees would be: |
| 12 months |
$139.35 |
$69.68 |
| 6 months |
$85.65 |
$42.83 |
| 3 months |
$64.80 |
$32.40 |
| 1 month |
$39.90 |
$19.95 |
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Top Performer Bonus. In addition to the 50%
Commission Fee set forth above, an Affiliate who generates more than 100 Qualifying
Subscriptions in any particular calendar month will earn an additional 25%
Commission Fee, for a total Commission Fee of 75% of the initial purchase price
of all Qualifying Subscriptions generated during such month. For example: |
| 12 months |
$139.35 |
$104.51 |
| 6 months |
$85.65 |
$64.24 |
| 3 months |
$64.80 |
$48.60 |
| 1 month |
$39.90 |
$29.93 |
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Please note that the tables above are for
illustrative purposes only, as Diet.com's subscription prices are subject to
change at any time without notice and in Diet.com's sole discretion. In addition,
Diet.com may offer special pricing and discounts in its sole discretion.
Commission Fees are calculated based upon the actual subscription price paid.
Diet.com and Diet Health have no obligation to revise this Agreement when it
changes its subscription fees and/or offers special pricing or discounts.
No Commission Fee will be paid on re-subscriptions or auto-renewals of
existing Qualifying Subscriptions. If a Qualifying Subscription for which
a Commission Fee is paid to Affiliate is later refunded or charged back,
all Commission Fee of the relevant order will be deducted from the next
payment sent to Affiliate following such event. In addition, charge backs
and refunds will be counted against the aggregate number of Qualifying
Subscriptions in determining eligibility for the top performer bonus.
Please note that Diet.com reserves the right to change any of the terms and
conditions in this Agreement, including the payment terms described in this
Section 3, by posting a new agreement on the Affiliate Web site (or any successor
or replacement site), as described below in more detail in Section 14
(Modifications). |
4. Commission Fee Payments |
Within approximately 20 days after the end of
each calendar month during the Term, Diet.com shall deliver to you the
aggregate Commission Fees (less any taxes required to be withheld under
applicable law) due to you with respect to such calendar month. Diet.com
will make such payments by check in the name of and to the address you provide
to Diet.com on the Affiliate Program Section (the "Payee Information"). You
will be responsible for updating the Payee Information by logging on to the
Affiliate Program Section and updating your account information. Notwithstanding
the foregoing, Diet.com will not send a payment to you until such time as the
aggregate payment due you is at least $50.00. |
5. Subscription Payment Processing |
Diet.com will be solely responsible for
processing every Qualifying Subscription. Payment processing, renewal payment
processing, cancellations and refund processing, and related customer service
are the responsibility of Diet.com. All of the rules, operating procedures and
policies of Diet.com regarding customer subscriptions will apply to all
subscription orders Diet.com receives. Diet.com reserves the right to reject
any subscription order that does not comply with its rules, operating procedures
and/or policies. Affiliate is not permitted to make any exceptions to Diet.com's
rules, operating procedures or policies or otherwise communicate with subscribers
about these rules except with Diet.com's prior authorization, which may be
withheld in Diet.com's sole discretion. |
6. Tracking of Subscription Sales |
Diet.com will be solely responsible for tracking
subscription sales. Statements of subscription sales activity will be provided
to Affiliate as described in Section 4 (Commission Fee Payments) above. To
protect the privacy of Diet.com's customers, the names of and other personally
identifying information about customers will not be provided to Affiliate. All
information about customers and users collected by Diet.com shall be owned
solely and exclusively by Diet.com. |
7. Copyrighted Material |
Sponsoring Web Site. You shall ensure that
none of the materials utilized or displayed on the sponsoring Web site,
including your logo and preamble text, infringe upon the rights, including
the intellectual property rights, of any third parties. You must have express
permission to use another party's copyrighted material. Diet.com and Diet
Health will not be responsible if you use another party's copyrighted material
in violation of the law.
Use of Diet.com Intellectual Property. As between the parties, Affiliate
acknowledges and agrees that Diet.com owns all right, title and interest in
and to all patents, copyright, trademarks, trade secrets, service marks, trade
names and other intellectual property in the Diet.com Site, the Affiliate
Program Section, the Links and the Service and any software provided by
Diet.com in connection with this Agreement (the "Diet.com Intellectual Property").
Affiliate shall not take any action inconsistent with such ownership by Diet.com,
nor attempt to register any Diet.com Intellectual Property in any jurisdiction.
Diet.com hereby grants to Affiliate, for the Term of this Agreement, a
non-exclusive, non-transferable license to use the Diet.com Intellectual
Property contained in the Links, subject to Diet.com's approval, for the
express limited purpose of performing under this Agreement. You, by virtue
of this Agreement, shall not obtain or claim any right, title or interest in
or to the Diet.com Intellectual Property, except the right of use as specified
herein, and you acknowledge and agree that all such use shall inure to the
benefit of Diet.com.
Affiliate shall use the Diet.com Intellectual Property only as provided by
Diet.com, and shall not alter the Diet.com Intellectual Property in any way.
Diet.com shall have the right to monitor the quality of Affiliate's use of
the Diet.com Intellectual Property. Any references to the Diet.com Intellectual
Property shall contain the appropriate trademark, copyright or other legal
notice provided from time to time by Diet.com. Upon a request from Diet.com,
Affiliate shall immediately cease use of any and all Diet.com Intellectual
Property, on the sponsoring Web site and elsewhere.
Use of Diet.com Profiles. You may not use any profiles or other information
regarding Diet.com users on the sponsoring Web site or anywhere else for any
reason whatsoever. Doing so may result in immediate termination of this
Agreement or suspension of your participation in the Affiliate Program. |
8. Diet.com Policies Apply to All Orders |
Every customer who buys a subscription through
this program is deemed to be a customer of Diet.com. Affiliate does not have
the authority to make or accept any offer on behalf of Diet.com. All Diet.com
policies regarding customer orders, including pricing and problem resolution,
will apply to these customers. Diet.com and Diet Health are not responsible
for any representations made by Affiliate that contradict Diet.com's
policies. |
9. Prices and Availability |
The price charged for subscriptions sold
under this program will be determined by Diet.com according to its own pricing
policies. Prices may vary from time to time as determined in Diet.com's sole
discretion. Diet.com policies will always determine the price paid by the
customer. |
10. Prohibited Content |
No sponsoring Web site may display
any of the following content or engage in any of the following activity:
- Sexually explicit material (pornography);
- Violent images or messages that promote violence;
- Promotion of discrimination based on race, sex, religion,
national origin, physical disability, sexual orientation or age;
- Promotion of illegal activities;
- Promotion or display of defamatory, libelous or harmful material or
material that otherwise infringes upon the rights of any third parties;
- Content that is inconsistent with Diet.com's policies and/or practices;
- Spamming of Affiliate's users who have registered for the Service; or
- Any other content or activity that Diet.com finds objectionable in its
sole discretion.
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11. Web Site Service Interruption |
Diet.com will use reasonable efforts to keep
the Diet.com Site, the Affiliate Program Section and the Service operational.
However, certain technical difficulties may, from time to time, result in
temporary service interruptions. Affiliate agrees not to hold Diet.com and
Diet Health liable for any of the consequences of such interruptions. |
12. Email Advertising and Anti-spamming,
Anti-spyware Clause |
Affiliate may not send out any email containing
Diet.com's name or branding or any other Diet.com Intellectual Property. |
In the event that you would like to pursue the
opportunity to market the sponsoring Web site by email using Diet.com's name or
branding, please contact Diet.com as indicated in the Section 18 (Notice) of
this Agreement. In the event that you meet certain criteria, and agree to sign
an addendum to this Agreement regarding email practices, including, among other
things, compliance with the CAN-SPAM Act of 2003, Diet.com may permit you to
send emails using Diet.com's name and/or branding. However, Diet.com reserves
the right to reject any such request in its sole discretion. |
No spyware or other forced traffic allowed. |
13. Term of the Agreement |
This Agreement shall commence on the day it
is entered into by the Affiliate and shall continue until terminated by
Affiliate or Diet.com as provide herein (the "Term"). |
14. Modifications |
Diet.com reserves the right to change any
of the terms and conditions in this Agreement, at any time and in its sole
discretion, by posting a new agreement reflecting such changes on Affiliate
Program Section, such changes to be effective upon posting. Diet.com will
not be required to provide notice to Affiliates of changes to the Agreement
other than by posting the revised Agreement as described above. Affiliate
may not change or modify this Agreement. |
15. Termination of this Agreement; Survival |
Either party, acting in its sole discretion,
may choose to cancel this Agreement at any time by written notice of cancellation
to the other. Such cancellation will be effective 3 days after such notice.
Affiliates should know that Diet.com intends to terminate any Affiliate that
generates $0 in Commission Fees during any consecutive 120-day period.
In addition, Diet.com may terminate this Agreement immediately upon notice to
Affiliate of Affiliate's breach of any provision of this Agreement.
Any provision of this Agreement that expressly states that it shall survive
or which, by its nature, must survive the completion, expiration, termination
or cancellation of this Agreement, shall survive the completion, expiration,
termination or cancellation of this Agreement. |
16. Warranty Disclaimer |
Diet.com and Diet Health make no warranties,
representations or conditions with regard to the Affiliate Program, the Diet.com
Site, the Affiliate Program Section or the Service, whether express or implied,
arising by law or otherwise, including without limitation any implied warranty
of merchantability or fitness for a particular purpose or non-infringement or
any implied warranty arising out of course of performance, course of dealing
or usage of trade. Further, Diet.com and Diet Health expressly disavows any
obligation to indemnify Affiliate or any of its representatives or owners in
connection with any lawsuit or other proceeding arising out of any of
Affiliate's users use of the Diet.com Site or the Service. |
17. Limitation of Damages |
Diet.com and Diet Health shall have no
liability for any indirect, incidental, special or consequential damages
or any loss of revenue or profits arising under or with respect to this
Agreement or the program, even if Diet.com and/or Diet Health has been
advised of the possibility of such damages. Further, Diet.com’s and/or
Diet Health's aggregate liability arising under or with respect to this
agreement or the program shall in no event exceed the total Commission
Fees and Referral Fees paid or payable by Diet.com to Affiliate under
this Agreement.
If to Diet.com:
Diet.com Affiliate Program
106 S. 7th Street
Philadelphia, PA 19106
Contact Form
If to Affiliate:
To the postal address, email address
and/or fax number provided by Affiliate
to Diet.com on the Affiliate Program Section.
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19. Representations and Warranties |
Affiliate represents and warrants that it has
the necessary and full rights, power, authority and capabilities to enter into
this Agreement and to perform its obligations hereunder and that the execution
of and performance of its obligations under this Agreement will not violate the
rights of any third party, nor any applicable federal, state and local law or
regulation. |
20. Indemnification |
Affiliate shall defend, indemnify and hold
harmless Diet.com and Diet Health, their parent, subsidiary and affiliated
companies and their directors, officers, employees, affiliates and agents,
against any claim, demand, cause of action, debt or liability, including
reasonable attorney's fees, to the extent that (i) it is based upon a breach
of Affiliate's representations, warranties or obligations hereunder; (ii) it
arises out of the negligence or willful misconduct of Affiliate; or (iii) it
is based upon Affiliate's violation of any applicable federal, state or local
law or regulation in providing products or services hereunder. |
21. Miscellaneous |
Affiliate and Diet.com are independent
contractors and nothing in this agreement is intended to or will create any
form of partnership, joint venture, agency, franchise, sales representative
or employment relationship between the parties. Affiliate shall not assign
this Agreement, by operation of law or otherwise, without the prior written
consent of Diet.com. Subject to the foregoing restriction, this Agreement
is binding upon, insures to the benefit of and is enforceable by the parties
and their respective successors and assigns. |
22. Governing Law; Jurisdiction |
This Agreement shall be governed by the laws
of the State of Pennsylvania without reference to its choice of law principles.
Any legal action, suit or proceeding arising out of or relating to this Agreement
will be instituted exclusively in a court of competent jurisdiction, state or
federal, located in the State of Pennsylvania, County of Philadelphia, and in
no other jurisdiction. The parties hereby irrevocably consent to personal
jurisdiction and venue in, and agree to service of process authorized by,
such courts. |
23. Acceptance of Agreement |
Electronic Signature. This Agreement is an
electronic contract that sets out the legally binding terms of your use of
the Links and your participation in the Affiliate Program. This Agreement may
be modified by Diet.com from time to time, such modifications to be effective
upon posting by Diet.com on the Affiliate Program Section. You indicate your
acceptance to the terms and conditions contained or referenced herein by
clicking on the "I Accept" button at the end of this Agreement. This action
creates an electronic signature that has the same legal force and effect as a
handwritten signature. By clicking on the "I Accept" button, you accept this
Agreement and agree to the terms, conditions and notices contained or referenced
herein.
Electronic Form. When you click on the "I Accept" button at the end of this
Agreement, you also consent to have this Agreement provided to you in electronic
form.
Non-electronic Copy. You have the right to receive this Agreement in
non-electronic form. You may request a non-electronic copy of this Agreement
either before or after you electronically sign the Agreement. To receive a
non-electronic copy of this Agreement, please send an e-mail or letter and
self-addressed stamped envelope to Diet.com at the address set forth in
Section 18 (Notice).
Withdrawing Your Consent. You have the right at any time to withdraw your
consent to have this Agreement provided to you in electronic form.
(i) Effect. Should you choose to withdraw your consent to have this
Agreement provided to you in electronic form, Diet.com will suspend your
participation in the Affiliate Program. Diet.com will reinstate you in the
Affiliate Program only after we receive a signed copy of a non-electronic
version of this Agreement, which we will send to you upon request.
(ii) Notice. To withdraw your consent and/or request a non-electronic
copy of this Agreement, please send an email or a letter and self-addressed
stamped envelope to Diet.com at the address set forth in Section 18 (Notice).
(iii) Prospective Nature. Your withdrawal of consent shall be effective
within a reasonable time after Diet.com receives your withdrawal notice
described above. Your withdrawal of consent will not affect the legal validity
or enforceability of the Agreement provided to, and electronically signed by,
you prior to the effective date of your withdrawal. Access and Retention. In
order to access and retain this electronic Agreement, you must have access to
the World Wide Web, either directly or through devices that access web-based
content, and pay any service fees associated with such access. In addition,
you must use all equipment necessary to make such connection to the World Wide
Web, including a computer and modem or other access device. Please print a
copy of this document for your records. To retain an electronic copy of this
Agreement, you may save it into any word processing program. Diet.com will
notify you of any changes in the hardware or software requirements needed
to access and/or retain this Agreement that create a material risk that you
will not be able to continue to access and/or retain this electronic
Agreement. |
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