THIS IS A LEGAL AGREEMENT BETWEEN YOU AND Bodecare (Bodecare Pty Ltd).
BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT
YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
Bodecare does not permit pay-per-click. This includes bidding on brand terms, variations, and misspellings. You are not authorised to use
the Bodecare's domain as the display URL in any paid search activity on any search engine.
Bodecare does not accept Coupon Affiliate websites:
A "Coupon Affiliate" is an affiliate whose business model substantially consists of making coupons available. Whether an affiliate is classified as a Coupon Affiliate shall be determined by Bodecare in its sole discretion. Factors that may lead to classification as "Coupon Affiliate" include, but are not limited to:
1. the presence of coupon offerings, especially from many different advertisers, on the affiliate's website, especially if such coupons represent many different advertisers and/or are indexed or are organised in a directory;
2. the presence of certain words (or variations or misspellings thereof) in the website's URL or prominently featured in the website's content, such as "coupons," "deals" or "savings";
3. a website that is focused on other advertisers and the discounts or promotions offered by them, rather than on products, and that features little original, human-generated content.
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in Bodecare's Affiliate Program. The purpose of this Agreement is to allow HTML linking between your website and the Bodecare website. Please note that throughout this Agreement, "we," "us," and "our" refer to Bodecare, and "you," "your," and "yours" refer to the affiliate.
2. Affiliate Obligations
2.1. To begin the enrolment process, you will submit your intention to join the program from the Affiliate sign up page on Bodecare.com. The fact that we approve applications does not imply that we may not reevaluate your application at a later time. We may reject your application at our sole discretion. We may cancel your application if we determine that your site is unsuitable for our Program, including if it:
2.1.1. Promotes sexually explicit materials
2.1.2. Promotes violence
2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
2.1.4. Promotes illegal activities
2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark, or other intellectual property rights or to violate the law
2.1.6. Includes "Bodecare" or variations or misspellings thereof in its domain name
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable to us in our sole discretion.
2.1.8. Contains software downloads that potentially enable diversions of commission from other affiliates in our program.
2.1.9. You may not create or design your website or any other website that you operate, explicitly or implied in a manner that resembles our website nor design your website in a manner that leads customers to believe you are Bodecare or any other affiliated business.
2.2. As a member of Bodecare's Affiliate Program, you will have access to an Affiliate Account Manager. Here you will be able to review our Program's details and HTML code that provides for links to web pages within the Bodecare website, banner creatives and browse and get tracking codes for our coupons and deals. In order for us to accurately keep track of all guest visits from your site to ours, you must use the HTML code that we provide for each banner, text link, or other affiliate link we provide you with.
2.3. Bodecare reserves the right, at any time, to review your placement and approve the use of Your Links and require that you change the placement or use to comply with the guidelines provided to you.
2.4. The maintenance and the updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
2.5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person's copyrighted material, whether it be copy or content, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person's copyrighted material or other intellectual property in violation of the law or any third party rights.
2.6. In applicable countries we strongly advise affiliates to stay compliant with the Federal Trade Commission (FTC) guidelines on testimonials and endorsements. All endorsements, reviews, testimonials on Bodecare's products and services, as well as relationships between other types of content websites (forums, blogs, microblogs, and other Social Media channels) and Bodecare must be clearly disclosed in a separate policy on the affiliate sites. FTC points out that "when there exists a connection between the endorser and the seller of the advertised product," it is imperative that such a connection is "fully disclosed." FTC deems the relationship in an endorser-sponsor light and believes that the end user has the right to understand that one exists. We share the underlying idea of this approach and strongly encourage our affiliates to adhere to the FTC's rules. We also reserve the right to terminate our relationship with any noncompliant affiliates.
3. Bodecare Rights and Obligations
3.1. We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made or to make sure that your links to our website are appropriate and to notify you further of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the Bodecare Affiliate Program.
3.2. Bodecare reserves the right to terminate this Agreement and your participation in the Bodecare Affiliate Program immediately and without notice to you should you commit fraud in your use of the Bodecare Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, Bodecare shall not be liable to you for any commissions for such fraudulent sales.
3.3. This Agreement will begin upon our acceptance of your Affiliate application and will continue unless terminated hereunder.
Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, or email. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you.
If no affiliate sales are made over a 6 month period, your affiliate account may be made inactive without prior notice. You can reactivate your account by emailing Bodecare. If a further 6 month period no sales are made your affiliate account may be terminated.
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such an event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and Bodecare's Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in Bodecare's Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
Bodecare will track all affiliate sales through the links provided to you. These sales will generate a commission amount as per your program application. Commission payments will be made available on any qualified sales to your nominated bank account or Paypal account 30 days after the original sale. You may request a payment at anytime greater than $25, or, qualified payments will automatically be made within 10 working days after the end of the month.
7. Access to Affiliate Client Control Panel
You will create a password so that you may enter Bodecare's secure affiliate client control panel. Once logged in you will be able to receive your reports that will describe our calculation of the commissions due to you.
8. Promotion Restrictions
8.1. You are free to promote your own websites, but naturally any promotion that mentions Bodecare could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by Bodecare. For example, advertising commonly referred to as "spamming" is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups, and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote Bodecare so long as the recipient is already a customer or subscriber of your services or website, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote Bodecare so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your websites as independent from Bodecare. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Bodecare Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
8.2. Affiliates that exclusively bid in their Pay-Per-Click campaigns on keywords such as Bodecare, Bodecare Pty Ltd, http://www.bodecare.com/, and/or any misspellings or similar alterations of these—be it separately or in combination with other keywords—and do not direct the traffic from such campaigns to their own website prior to redirecting it to ours, will be considered trademark violators and will be banned from Bodecare's Affiliate Program. We will do everything possible to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice and on the first occurrence of such PPC bidding behaviour.
8.3. Affiliates are not prohibited from keying in prospect's information into the lead form as long as the prospects' information is real and true and these are valid leads (i.e., sincerely interested in Bodecare's service).
8.4. Affiliate shall not transmit any so-called "interstitials," "Parasiteware™," "Parasitic Marketing," "Shopping Assistance Application," "Toolbar Installations and/or Add-ons," "Shopping Wallets," or "deceptive pop-ups and/or pop-unders" to consumers from the time the consumer clicks a qualifying link until such time as the consumer has fully exited Bodecare's site (i.e., no page from our site or any Bodecare's content or branding is visible on the end user's screen). As used herein "Parasiteware™" and "Parasitic Marketing" shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any other means than a customer-initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing pop ups, commission tracking cookies to be put in place, or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of Bodecare site in IFrames, hidden links, and automatic pop ups that open Bodecare's site; (d) targets text on websites, other than those websites 100 percent owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on websites 100 percent owned by the owner of the application.
8.5. Affiliates that are found to be cybersquatting or typosquatting on trademark-related domains will be banned from the program with all their commissions reversed.
9. Grant of Licenses
9.1. We grant to you a nonexclusive, nontransferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement, and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the "Licensed Materials") that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of Bodecare's Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of Bodecare and the goodwill associated therewith will inure to the sole benefit of Bodecare.
9.2. Each party agrees not to use the other's proprietary materials in any manner that is disparaging, misleading, obscene, or otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
BODECARE MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING BODECARE SERVICE AND WEBSITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF BODECARE ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
11. Representations and Warranties
You represent and warrant that:
11.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
11.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party.
11.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
12. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL BODECARE'S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
You hereby agree to indemnify and hold harmless Bodecare and its subsidiaries and affiliates, and their 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 claim that our use of the affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement, which is marked "Confidential," will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
15.1. You agree that you are an independent contractor and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Bodecare. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on Your Site or any other of Your Site or otherwise, that reasonably would contradict anything in this Section.
15.2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party.
15.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Queensland without regard to the conflicts of laws and principles thereof.
15.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
15.5. This Agreement represents the entire agreement between us and you and shall supersede all prior agreements and communications of the parties, oral or written.
15.6. The headings and titles contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement.
15.7. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.