Affiliate Operating Agreement
Please click here to download the agreement in pdf format (requires Adobe pdf reader). In order to apply for the affiliate program, you will need to print the pdf file from the link above and send it (by mail or fax) to:
New Beginnings Nutritionals
11805 West 77th. St, Lenexa, Kansas, 66214
Fax: (913) 248-7609
THIS OPERATING AGREEMENT (the "Agreement) contains the complete terms and conditions that apply between New Beginnings Nutritionals or www.nbnus.com, a Kansas, U.S.A. Limited Liability Corporation ("NBN”), and you (the "Affiliate,” and collectively, the "Parties”). By submitting an application to join the New Beginnings Nutritionals affiliate program, you are confirming that you have read this Operating Agreement and agreed to be bound by its terms and conditions.
WHEREAS Affiliate wishes to certain materials promoting NBN, and to include a link to NBN’s website within those materials on Affiliate’s website;
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
1. Who can be an Affiliate: Affiliates must have a valid active website and platform for marketing NBN products before being approved. Affiliates who only use the links for personal orders will not receive commissions. In order to receive commissions, at least 60% of all affiliate purchases must come from other than personal orders. NBN reserves the right to ban individuals from the Affiliate program if all (or most) of affiliate orders received appear to be for personal use.2. Promotional Links. For orders to be eligible to receive commissions, they must be placed through an Affiliate Link placed on a website or within a newsletter NBN shall make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate website ("Links”). Affiliate shall display the Links on Affiliate’s website prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Links to NBN’s website, as specified by NBN.
Use
of Links. The Affiliate’s use and display of the Links
on the Affiliate’s site shall conform to the following terms, conditions and
specifications:
a. Affiliate may not use any graphic, textual
or other materials to promote
NBN’s website, products or services other than
the Links, unless NBN
agrees to such other materials in
writing prior to their display.
b. Affiliate may only use the Links for the
purpose of promoting NBN’s
website (and the products and services
available thereon), and for
linking to NBN’s website.
c. The Links will be used to link only to
NBN’s website, to the specific
page and address as specified by NBN.
d. Affiliate will not alter, add to,
subtract from, or otherwise modify the
Links as they are prepared by
NBN. If Affiliate wishes to alter or
otherwise modify the Links, Affiliate
must obtain prior written consent
from NBN for such alteration of
modification.
3. License.NBN hereby grants to Affiliate a nonexclusive, nontransferable license
(the "License”) to use the Links as specified under the terms and conditions of
this Agreement. The term of the License
shall expire upon the expiration or termination of this Agreement.
4. Intellectual Property. NBN retains all right, ownership, and
interest in the Links, and in any copyright, trademark, or other intellectual
property in the Links. Nothing in this
Agreement shall be construed to grant Affiliate any rights, ownership or
interest in the Links, or in the underlying intellectual property, other than
the rights to use the Links granted under the License, as set forth in Section
3.
5. Relationship of Parties.This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between NBN and Affiliate. Affiliate shall provide services for NBN as an independent contractor.Affiliate shall have no authority to bind NBN into any agreement, nor shall Affiliate be considered to be an agent of NBN in any respect.
6. Commissions
a. In exchange for Affiliate’s display of the
Links, and for Affiliate’s compliance with and performance of the terms and
conditions of this Agreement, NBN shall pay to Affiliate 20% of the revenue as
a commission (the "Commission”) from orders for nutritional supplements placed
through the Affiliate’s website.Products that are exempt from commissions include BrainChild Nutritional
products, VSL#3, Culturelle, sale items, food products, and personal care
products. Commissions will not be paid when more than 40% of the orders
received are for the Affiliate’s personal orders.
b. NBN shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate.Affiliate shall be given reasonable access to these records upon request. Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods shall be rectified by NBN within 14 days of discovering such discrepancy.
c. NBN shall pay all Commissions accrued and payable to Affiliate within 14 days at the end of each quarter (the "Commission Payment Date”). If on any Commission Payment Date, the amount of total Commissions accrued and payable to Affiliate is less than $25.00, then such accrued and payable balance shall be held over to the following quarter and paid together with the Commissions due for that quarter. If at any time, the balance of accrued and payable Commissions is held over for 2 consecutive quarters, then NBN shall pay all accrued and payable Commissions to Affiliate in the third quarter, regardless of the total amount owed.
d. If a customer later requests a refund or a chargeback is issued by the credit card holder who credit card was used to pay for that customer’s account, any commissions credited to the Affiliate will be deducted from the next monthly payments.
e. In the event that Affiliate materially
breaches this Agreement and NBN terminates this Agreement within 30 days of
such breach, then any accrued and payable Commissions owing to Affiliate shall
be forfeited, and NBN shall not be obligated to pay such Commissions to
Affiliate
7. Affiliate’s Representations and Warranties. Affiliate represents and warrants the following:
a. Affiliate has the legal authority to
enter into this Agreement and to be bound to the promises, covenants, and other
duties set forth in this Agreement.
b. Affiliate’s website does not contain any materials that are:
i.Sexually explicit, obscene, or pornographic;
ii.Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
iii.Graphically violent, including any violent video game images; or
iv.Solicitous
of any unlawful behavior
c. Affiliate has obtained any necessary
clearances, licenses, or other permission for any intellectual property used on
Affiliate’s website. Nothing on
Affiliate’s website infringes upon the intellectual property rights of any
person or entity. No person or entity
has brought or threatened an action claiming such infringement, nor does
Affiliate have any reason to believe that any person or entity will bring or
threaten such a claim in the future.
d. Affiliate will not participate in
spyware, adware or parasiteware techniques for will not use the Links in any
manner other than those set forth in Section 2 above.
e. Affiliate will not make any claim to
ownership of the Links, or of the copyright, trademark, or other intellectual
property therein.
f. Affiliate will not publish or otherwise
distribute any advertising materials for Affiliate’s website that reference NBN
or NBN’s website unless NBN gives prior written consent to the distribution of
such materials. Affiliate will not use
NBN’s name (or any name that is confusingly similar to NBN’s name) for any
purpose on its website, in its Links, or in any other context except to promote
NBN’s website as specified in this Agreement.Affiliate will not register any domain name that incorporates NBN’s
name, or that is confusingly similar to NBN’s name.
g. Affiliate will not engage in the distribution
of any unsolicited bulk emails (spam) in any way mentioning or referencing NBN
or NBN’s website.
8. Indemnification. Affiliate shall indemnify NBN and hold harmless NBN from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s warranties set forth in Section 7 above. Affiliate shall also indemnify and hold harmless NBN for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Links.
9. Confidentiality. Any information that Affiliate is exposed to by virtue of its relationship with NBN under this Agreement, which information is not available to the general public, shall be considered to be "Confidential NBN Information.” Affiliate may not disclose any Confidential NBN Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from NBN.
10. Term.a. This Agreement shall take effect upon our acceptance of your Affiliate Program application and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section 10.
b. Either Party shall have the right to terminate this Agreement at any time and for any cause. The terminating Party must give written notice to the other Party at least 30 days prior to the intended date of termination.11. Taxes. NBN shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with NBN as set forth in this Agreement. NBN shall not withhold any taxes from the Commissions paid to Affiliate.
12. Limitation of Liability. NBN shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether NBN was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Links, or other performance of services under this Agreement.
13. Governing Law. This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the United States and the state of Kansas, without regard to conflicts of law principles.
14. Counterparts.This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
15. Severability.If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
16. Headings. The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
17. Entire Agreement.This Agreement constitutes the entire agreement between NBN and Affiliate, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.
Please print this page and sign below to indicate your agreement to the terms outlined in this agreement and return to New Beginnings Nutritionals, 7797 Quivira Road, Lenexa, KS 66216, scan and email to Lknowles@nbnus.com or fax to Attn: Marketing/Affiliates, 913-248-7609.
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