CBDIstillery
Program Terms
Online Marketing Affiliate Terms and Conditions
These terms and conditions (“Agreement”) are entered into between Balanced Health Botanicals,
LLC, on behalf of itself and its current and future affiliated entities (collectively, “BHB”), and
your company and your current and future affiliated entities (collectively, the “Marketing
Affiliate”, and together with BHB, the “Parties”, and each, a “Party”). This Agreement governs
the terms and conditions under which Marketing Affiliate will deliver online marketing affiliate
services (“Services”) for BHB with respect to BHB products (“Products”) and is effective upon
Marketing Affiliate’s confirmation of its acceptance of these terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1. Marketing Affiliate Obligations and Responsibilities.
a. Marketing Affiliate will:
i. deliver the Services consistent with good business practice, in conformance with
relevant industry standards of good performance, using efforts comparable to those
customarily used in online promotional campaigns of equivalent value and for
similar products or services;
ii. promptly notify BHB of, and provide, upon BHB’s request, assistance to BHB to
address and investigate, any complaint or adverse claim about any Product or its
use;
iii. include the hashtag #Ad or #Sponsored in any content that you post on to your
website, or social media channels if you have received compensation or free
Products in exchange for your post in order to remain in compliance with the rules,
guidance, and regulations promulgated by the Federal Trade Commission (“FTC”);
and
iv. disclose Marketing Affiliate’s connection to BHB clearly and conspicuously when
reasonably necessary or advisable or as required by applicable law.
b. Marketing Affiliate will not:
i. make any misleading or untrue statements or claims concerning the medicinal
effectiveness, treatment viability or health benefits arising out of the use of the
Products;
ii. make any representations, warranties, guarantees, indemnities, similar claims, or
other commitments actually, apparently, or ostensibly on behalf of BHB;
iii. use any promotional or marketing materials concerning the Products, whether
prepared by Marketing Affiliate or others, without the prior written consent of
BHB;
iv. bid on BHB’s brand keywords such as BHB’s company names, Product names,
website names or any variation thereof with respect to such names or SKU
numbers;
v. offer rebates, promotional codes or coupons with respect to Products without
BHB’s prior written consent; or
vi. place links to BHB Sites on Marketing Affiliate coupon sites.
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c. Marketing Affiliate shall at all times comply with all applicable federal, state, and local
laws, ordinances, regulations, and orders that are applicable to the operation of its
business and to this Agreement and its performance hereunder, including but not
limited regulations and guidelines directly relating to the Services and/or Products set
forth by the FTC and the US Food and Drug Administration (“FDA”), including but
not limited to the Federal Trade Commission Act and the CAN-SPAM Act.
2. Payment of Commissions.
a. BHB shall pay Marketing Affiliate a commission for its Services for all sales
solicited by Marketing Affiliate pursuant to the terms of this Agreement (“Sales”)
in a calendar month (a “Month”), in the amount equal to a percentage (the
“Commission Rate”) of the Net Sales Price of such Sales (the “Commission Fee”).
“Net Sales Price” means the net sales price (exclusive of sales tax, processing fees,
and/or shipping costs and after applying any discounts, promotional codes, credits,
rebates, or adjustments) received by BHB for the Sale of Products to Customers
(defined below).
b. A Sale shall be deemed solicited by Marketing Affiliate in the event:
i. a Customer is directed to a website owned and operated by BHB (a “BHB
Site”) via a link on a web page, article, advertisement, or similar online site
authored and/or operated by Marketing Affiliate (a “Marketing Affiliate
Site”); and
ii. said Customer purchases and pays for Product(s) upon being directed to the
BHB Site via the link on the Marketing Affiliate Site.
c. The Commission Rate applicable to Sales to new Customers who have never
purchased Products from BHB via a BHB Site prior to being directed to the BHB
Site via the link on the Marketing Affiliate Site (“Unique Customer(s)” and together
with all other customers “Customer(s)”) will be determined in accordance with the
following schedule:
Tier Aggregate Net Sales
Price ($)
Commission Rate
1 0-14,999.99 15%
2 15,000.00-49,999.99 20%
3 50,000.00-99,999.99 25%
4 100,000.00 plus 35%
d. At the end of each Month, BHB will calculate the total Commission Fee for Sales
to Unique Customers based upon the Commission Rate in each tier set forth in the
table in Section 2(c) multiplied by the aggregate Net Sales Price received from
Unique Customers in that tier. For example, if Marketing Affiliate is credited with
an aggregate Net Sales Price to Unique Customers of $25,000 in a Month, then the
Commission Fee to which Marketing Affiliate is entitled to for that Month with
respect to Sales to such Unique Customers is $4,250.00 [20% x $10,000 for Tier 2]
+ [15% x $14,999.99 for Tier 1](rounded up for the sake of this example).
e. In the event Marketing Affiliate qualifies for a Commission Rate in Tier 2, 3, or 4
in accordance with Section 2(c) for 2 consecutive months (an “Earned Tier”), then
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thereafter, Marketing Affiliate shall at least receive the Commission Rate for the
Earned Tier regardless of the aggregate Net Sales Price received but shall retain the
ability to earn a higher Commission Rate in a Month than that in the Earned Tier
by accomplishing aggregate Net Sales in such higher tiers in accordance with
Section 2(c); provided that if Marketing Affiliate fails to achieve the aggregate Net
Sales Price associated with the Earned Tier for 2 consecutive months, then
thereafter, Marketing Affiliate’s Commission Rate shall be determined in
accordance with Section 2(c) until a Earned Tier is achieved again pursuant to this
Section 2(e).
f. The Commission Rate earned on Sales to all Customers other than Unique
Customers shall be 15%.
g. Marketing Affiliate shall be entitled to the Commission Fee on all Sales to each
Customer for a period of 90 days following the initial Sale solicited by Marketing
Affiliate for BHB with respect to such Customer, whether or not said Customer
accesses a BHB Site via a Marketing Affiliate Site. Following the expiration of
said 90 day period, such Customer shall be considered a customer of BHB and
Marketing Affiliate shall not be entitled to a Commission Fee in relation to any
further sales made to such Customer by BHB.
h. Notwithstanding anything to the contrary herein, Marketing Affiliate shall not be
eligible for a Commission Fee in relation to sales of Products to the Marketing
Affiliate and/or any of its employees or contractors.
i. The Commission Fee shall be paid by BHB within 60 days of the end of the Month
in which (and only to the extent that) BHB actually receives unconditional payment
from a Customer. If the Customer makes payments to BHB in increments or
installments, BHB shall pay Marketing Affiliate pro rata commission
corresponding to the incremental or installment payments of the Net Sales Price.
j. BHB may use third parties to track, calculate, and disburse Commission Fee
payments to Marketing Affiliate. In such an event, Marketing Affiliate shall be
required to utilize the same in order to receive payment hereunder and shall be
subject to the terms and conditions set forth by such third party site. Marketing
Affiliate shall fully cooperate with BHB in the use of such third parties, including
the transition from one third party provider to another.
k. Payments to Marketing Affiliate may be withheld, in whole or in part, by BHB if
Contractor is in breach of this Agreement and fails to cure such breach promptly
upon receiving notice of the same.
l. BHB reserves the right to revise the Commission Rate and how it is earned
hereunder upon prior notice to the Marketing Affiliate; provided such revision will
not be effective until the first day of a month after 30 days have passed since
Marketing Affiliate received such notice.
3. Bonus.
a. Marketing Affiliate shall earn a flat bonus payment (the “Bonus”) based upon the
total number of individual Sales entered into by Customers which were solicited by
Marketing Affiliate during the applicable Month based upon the following
schedule:
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Number of Individual
Customer Sales
Flat Bonus Amount
2,000 $2,500
3,500 $5,000
5,000 $10,000
b. At the end of each Month, BHB will determine the amount of the Bonus Marketing
Affiliate is eligible to receive by summing the number of individual Sales entered
into by Customers solicited by Marketing Affiliate during the applicable Month and
shall pay the Bonus amount corresponding to such number of individual Sales set
forth in Section 3(a) above. For example, if Marketing Affiliate solicits 2,200
individual Sales from Customers in a Month (and such orders are filled and paid
for), Marketing Affiliate shall earn a $2,500 Bonus for that Month. If Marketing
Affiliate solicits 7,000 individual Sales in a Month (and such orders are filled and
paid for), Marketing Affiliate shall earn a $10,000 Bonus for that Month.
c. The Bonus shall be paid by BHB to Marketing Affiliate along with the Commission
Fee.
4. Free Products.
a. BHB, in its sole discretion, may, from time to time, deliver to Marketing Affiliate
a Product selected by Marketing Affiliate free of charge (“Free Products”).
b. Free Products shall not be sold by Marketing Affiliate. Free Products are not
intended for re-sale by any third party. Free Products are delivered to Marketing
Affiliate “AS IS WHERE IS” without any warranty of any kind. Free Products are
intended to be used solely by Marketing Affiliate for the purpose of improving the
Services.
5. Marketing Affiliate Sites, Links, Landing Pages, and Content.
a. All BHB graphics, logos, or other insignia (“BHB Logos”) utilized by Marketing
Affiliate on Marketing Affiliate Sites shall be provided by BHB.
b. BHB shall designate certain BHB Sites as landing pages for links utilized by
Marketing Affiliate on its Marketing Affiliate Sites for the purpose of directing
Customers to BHB Sites in relation to the Services (“Links”). Marketing Affiliate
shall only direct Customers to and use Links to BHB Sites approved by BHB. BHB
reserves the right to disable any Links or their landing pages at any time in its sole
discretion upon notice to Marketing Affiliate.
c. All content related to BHB and/or Products utilized on Marketing Affiliate Sites in
relation to the Services, including but not limited to articles, writings, pictures,
graphics, images, videos, gifs, memes, or other similar content (“Content”) is
subject to review, approval, and removal from Marketing Affiliate Sites by BHB.
d. BHB may provide Marketing Affiliate access to pre-approved Content created by
BHB and BHB Logos for use on Marketing Affiliate Sites solely in relation to the
Services.
e. Marketing Affiliate shall immediately remove and/or disable Content or Links upon
the request of BHB.
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f. Marketing Affiliate Sites utilized in performance of the Services shall not contain
any materials or links to materials which infringe upon the intellectual
property/trademark rights of any party, including BHB, or which are false,
misleading, explicit, offensive, harassing, spamming, intimidating, illegal,
pornographic or otherwise inappropriate for use in the Services.
g. Marketing Affiliate shall not use BHB company or Product names or BHB Logos
as part of Marketing Affiliate’s website domain, blog, Facebook account, YouTube
channel, Twitter user name, Instagram handle, or any URL associated with
Marketing Affiliate.
6. Promotional Codes
a. Upon Marketing Affiliate’s request, BHB, in its sole discretion, may deliver to
Marketing Affiliate promotional codes for a discount off the Net Sales Price of
Products for use by third party visitors to a Marketing Affiliate Site (“Promotional
Codes”).
b. BHB reserves the right to modify or disable Promotional Codes at any time upon
notice to Marketing Affiliate. Upon receiving any such notice, Marketing Affiliate
shall modify the promotion as instructed or, in the event of disabling, remove all
references to such Promotional Codes.
c. Promotional Codes may be limited to certain Products and with respect to specific
quantities of Products in BHB’s sole discretion.
d. Promotional Codes may not be used by Marketing Affiliate or its employees or
contractors.
e. Marketing Affiliate shall not use Promotional Codes on coupon based websites
such as GROUPON.COM, RETAILMENOT.COM, COUPONTRADE.COM or
any other similar functioning sites.
f. Promotional Codes are provided by BHB in an amount determined by BHB in its
sole discretion. The amount of the Promotional Code you receive in relation to a
Product may be more or less than that offered by BHB or other marketing affiliates.
7. Intellectual Property
a. “Intellectual Property Rights” means all intellectual property and industrial
property rights comprising or relating to: (i) patents; (ii) trademarks; (iii) internet
domain names, whether or not trademarks, registered by any authorized private
registrar or governmental authority, web addresses, web pages, websites, and
URLs; (iv) works of authorship, expressions, designs, and design registrations,
whether or not copyrightable, including copyrights and copyrightable works,
software, and firmware, data, data files, and databases and other specifications and
documentation; (v) trade secrets; and (vi) all other intellectual property and
industrial property rights, and all rights, interests, and protections that are
associated with, equivalent or similar to, or required for the exercise of, any of the
foregoing, however arising, in each case whether registered or unregistered and
including all registrations and applications for, and renewals or extensions of, such
rights or forms of protection pursuant to the laws of any jurisdiction in any part of
the world.
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b. Marketing Affiliate acknowledges and agrees that: (i) any and all of BHB’s
Intellectual Property Rights are the sole and exclusive property of BHB or its
licensors; (ii) Marketing Affiliate shall not acquire any ownership interest in any of
BHB’s Intellectual Property Rights under this Agreement; (iii) any goodwill
derived from the use by Marketing Affiliate of BHB’s Intellectual Property Rights
inures to the benefit of BHB or its licensors, as the case may be; (iv) if Marketing
Affiliate acquires any Intellectual Property Rights in or relating to any BHB
Intellectual Property Rights by operation of law, or otherwise, such rights are
deemed and are hereby irrevocably assigned to BHB or its licensors, as the case
may be, without further action by either of the Parties; and (v) Marketing Affiliate
shall use BHB’s Intellectual Property Rights solely for the purposes of performing
its obligations under this Agreement and only in accordance with this Agreement
and the instructions of BHB.
c. Subject to the terms and conditions of this Agreement, BHB grants to Marketing
Affiliate a non-exclusive, non-transferable, and non-sublicensable license to use
BHB’s trademarks during the term of this Agreement solely in connection with the
marketing, promoting, advertising, and sale of Products. Other than the express
licenses granted by this Agreement, BHB grants no right or license to Marketing
Affiliate by implication, estoppel, or otherwise to Products or any of BHB’s
Intellectual Property Rights.
8. Miscellaneous
a. Marketing Affiliate shall indemnify and defend BHB and its officers, directors,
employees, agents, affiliates, successors, and permitted assigns (collectively,
“Indemnified Party”) against any and all losses, damages, liabilities, deficiencies,
claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or
expenses of whatever kind, including attorney fees, that are incurred by
Indemnified Party, arising out of or related to any: (a) breach or non-fulfillment of
any provision of this Agreement by Marketing Affiliate or Marketing Affiliate’s
personnel; or (b) any failure by Marketing Affiliate or its personnel to comply with
any applicable federal, state or local laws, regulations, or codes in the performance
of its obligations under this Agreement.
b. This Agreement may be terminated by either Party at any time, upon notice to the
non-terminating Party. Upon the termination of this Agreement, commissions will
be paid to Representative on all finalized Sales with Customers through the date of
termination for which Marketing Affiliate is entitled to a Commission Fee for
hereunder. Upon the termination of this Agreement, Marketing Affiliate shall
promptly remove all links to BHB Sites and remove any and all Content and BHB
Logos from Marketing Affiliate Sites.
c. Marketing Affiliate is an independent contractor of BHB. Neither Marketing
Affiliate nor any of its personnel is an employee of BHB for the purposes of payroll
taxes, social security, unemployment taxes, or workman’s compensation, or any
other purpose. Nothing contained in this Agreement shall be construed as creating
any agency, partnership, joint venture, corporate affiliation or other form of joint
enterprise, employment, or fiduciary relationship between the parties. Neither
party, by virtue of this Agreement, will have any right, power, or authority to act or
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create an obligation, express or implied, on behalf of the other party. Furthermore,
BHB will not be held responsible for any expenses of Marketing Affiliate unless
authorized in writing by BHB in advance of such expenditure.
d. This Agreement is not assignable in whole or in part by Marketing Affiliate. This
Agreement may be assigned by BHB at anytime.
e. This Agreement binds and benefits the Parties and their respective legal
representatives, successors, and permitted assigns.
f. BHB reserves the right to amend this Agreement. In such event, you will be notified
of such amended terms and conditions. If any such modification is unacceptable to
you, you may terminate this Agreement. Your continued performance of Services
for BHB shall be deemed an acceptance of the amended Agreement.
g. This Agreement and all claims or causes of action arising out of or relating to this
Agreement will be governed by and construed in accordance with the laws of the
State of Colorado, USA, including Colorado’s Uniform Commercial Code, without
regard to the chosen jurisdiction’s choice-of-law principles. The Parties agree that
the United Nations Convention on Contracts for the International Sale of Goods
does not apply to this Agreement. Any dispute arising under this Agreement shall
be resolved through binding arbitration according to the Rules of the American
Arbitration Association under its Commercial Arbitration Rules and Mediation
Procedures; provided, however, the Parties shall have the right to invoke self-help
remedies (such as set-off), and/or request ancillary or provisional judicial remedies
(such as specific performance, injunction, and restraining order), before, during or
after any arbitration. Venue for any such ancillary and/or provisional judicial
remedy shall reside exclusively in the state or federal courts having jurisdiction in
or for Arapahoe County, Colorado, USA. Use of self-help or ancillary and/or
provisional judicial remedies shall not operate as a waiver of either Party’s right to
compel arbitration. Any ancillary or provisional judicial remedy which would be
available from a court at law shall be available from the Arbitrator. The seat or
place of arbitration shall be Denver, Colorado, USA. The arbitration shall be
conducted and the award shall be rendered in the English language. Except as may
be required by law, no Party and no Arbitrator may disclose the existence, content
or results of any arbitration without the prior written consent of both Parties, except
to the extent necessary to protect or pursue a legal right. This Section shall survive
the expiration or earlier termination of this Agreement. In the event suit or action
is brought to enforce or interpret any of the provisions of this Agreement, or that
arise out of or relate to this Agreement, the Parties agree to reimburse the prevailing
Party’s reasonable attorney fees, court costs, and all other expenses, whether or not
taxable by the court as costs, in addition to any other relief to which the prevailing
Party may be entitled. The determination of who is the prevailing Party and the
amount of reasonable attorney fees to be paid to the prevailing Party shall be
decided by agreement of the Parties, or, if the Parties cannot reach agreement, then
by the Arbitrator.
h. If any part of this Agreement is held to be unenforceable in a court of law, such
provision will be severed, and the remainder of this Agreement will remain in full
force and effect. Further, upon a determination that any term or provision is invalid,
illegal, or unenforceable, the court may modify this Agreement to effect the original
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intent of the Parties as closely as possible in order that the covenants contemplated
by this Agreement be consummated as originally contemplated to the greatest
extent possible.
i. This Agreement, together with all documents incorporated herein, is the final and
exclusive agreement between the Parties with respect to its subject matter.
These terms and conditions (“Agreement”) are entered into between Balanced Health Botanicals,
LLC, on behalf of itself and its current and future affiliated entities (collectively, “BHB”), and
your company and your current and future affiliated entities (collectively, the “Marketing
Affiliate”, and together with BHB, the “Parties”, and each, a “Party”). This Agreement governs
the terms and conditions under which Marketing Affiliate will deliver online marketing affiliate
services (“Services”) for BHB with respect to BHB products (“Products”) and is effective upon
Marketing Affiliate’s confirmation of its acceptance of these terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1. Marketing Affiliate Obligations and Responsibilities.
a. Marketing Affiliate will:
i. deliver the Services consistent with good business practice, in conformance with
relevant industry standards of good performance, using efforts comparable to those
customarily used in online promotional campaigns of equivalent value and for
similar products or services;
ii. promptly notify BHB of, and provide, upon BHB’s request, assistance to BHB to
address and investigate, any complaint or adverse claim about any Product or its
use;
iii. include the hashtag #Ad or #Sponsored in any content that you post on to your
website, or social media channels if you have received compensation or free
Products in exchange for your post in order to remain in compliance with the rules,
guidance, and regulations promulgated by the Federal Trade Commission (“FTC”);
and
iv. disclose Marketing Affiliate’s connection to BHB clearly and conspicuously when
reasonably necessary or advisable or as required by applicable law.
b. Marketing Affiliate will not:
i. make any misleading or untrue statements or claims concerning the medicinal
effectiveness, treatment viability or health benefits arising out of the use of the
Products;
ii. make any representations, warranties, guarantees, indemnities, similar claims, or
other commitments actually, apparently, or ostensibly on behalf of BHB;
iii. use any promotional or marketing materials concerning the Products, whether
prepared by Marketing Affiliate or others, without the prior written consent of
BHB;
iv. bid on BHB’s brand keywords such as BHB’s company names, Product names,
website names or any variation thereof with respect to such names or SKU
numbers;
v. offer rebates, promotional codes or coupons with respect to Products without
BHB’s prior written consent; or
vi. place links to BHB Sites on Marketing Affiliate coupon sites.
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c. Marketing Affiliate shall at all times comply with all applicable federal, state, and local
laws, ordinances, regulations, and orders that are applicable to the operation of its
business and to this Agreement and its performance hereunder, including but not
limited regulations and guidelines directly relating to the Services and/or Products set
forth by the FTC and the US Food and Drug Administration (“FDA”), including but
not limited to the Federal Trade Commission Act and the CAN-SPAM Act.
2. Payment of Commissions.
a. BHB shall pay Marketing Affiliate a commission for its Services for all sales
solicited by Marketing Affiliate pursuant to the terms of this Agreement (“Sales”)
in a calendar month (a “Month”), in the amount equal to a percentage (the
“Commission Rate”) of the Net Sales Price of such Sales (the “Commission Fee”).
“Net Sales Price” means the net sales price (exclusive of sales tax, processing fees,
and/or shipping costs and after applying any discounts, promotional codes, credits,
rebates, or adjustments) received by BHB for the Sale of Products to Customers
(defined below).
b. A Sale shall be deemed solicited by Marketing Affiliate in the event:
i. a Customer is directed to a website owned and operated by BHB (a “BHB
Site”) via a link on a web page, article, advertisement, or similar online site
authored and/or operated by Marketing Affiliate (a “Marketing Affiliate
Site”); and
ii. said Customer purchases and pays for Product(s) upon being directed to the
BHB Site via the link on the Marketing Affiliate Site.
c. The Commission Rate applicable to Sales to new Customers who have never
purchased Products from BHB via a BHB Site prior to being directed to the BHB
Site via the link on the Marketing Affiliate Site (“Unique Customer(s)” and together
with all other customers “Customer(s)”) will be determined in accordance with the
following schedule:
Tier Aggregate Net Sales
Price ($)
Commission Rate
1 0-14,999.99 15%
2 15,000.00-49,999.99 20%
3 50,000.00-99,999.99 25%
4 100,000.00 plus 35%
d. At the end of each Month, BHB will calculate the total Commission Fee for Sales
to Unique Customers based upon the Commission Rate in each tier set forth in the
table in Section 2(c) multiplied by the aggregate Net Sales Price received from
Unique Customers in that tier. For example, if Marketing Affiliate is credited with
an aggregate Net Sales Price to Unique Customers of $25,000 in a Month, then the
Commission Fee to which Marketing Affiliate is entitled to for that Month with
respect to Sales to such Unique Customers is $4,250.00 [20% x $10,000 for Tier 2]
+ [15% x $14,999.99 for Tier 1](rounded up for the sake of this example).
e. In the event Marketing Affiliate qualifies for a Commission Rate in Tier 2, 3, or 4
in accordance with Section 2(c) for 2 consecutive months (an “Earned Tier”), then
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thereafter, Marketing Affiliate shall at least receive the Commission Rate for the
Earned Tier regardless of the aggregate Net Sales Price received but shall retain the
ability to earn a higher Commission Rate in a Month than that in the Earned Tier
by accomplishing aggregate Net Sales in such higher tiers in accordance with
Section 2(c); provided that if Marketing Affiliate fails to achieve the aggregate Net
Sales Price associated with the Earned Tier for 2 consecutive months, then
thereafter, Marketing Affiliate’s Commission Rate shall be determined in
accordance with Section 2(c) until a Earned Tier is achieved again pursuant to this
Section 2(e).
f. The Commission Rate earned on Sales to all Customers other than Unique
Customers shall be 15%.
g. Marketing Affiliate shall be entitled to the Commission Fee on all Sales to each
Customer for a period of 90 days following the initial Sale solicited by Marketing
Affiliate for BHB with respect to such Customer, whether or not said Customer
accesses a BHB Site via a Marketing Affiliate Site. Following the expiration of
said 90 day period, such Customer shall be considered a customer of BHB and
Marketing Affiliate shall not be entitled to a Commission Fee in relation to any
further sales made to such Customer by BHB.
h. Notwithstanding anything to the contrary herein, Marketing Affiliate shall not be
eligible for a Commission Fee in relation to sales of Products to the Marketing
Affiliate and/or any of its employees or contractors.
i. The Commission Fee shall be paid by BHB within 60 days of the end of the Month
in which (and only to the extent that) BHB actually receives unconditional payment
from a Customer. If the Customer makes payments to BHB in increments or
installments, BHB shall pay Marketing Affiliate pro rata commission
corresponding to the incremental or installment payments of the Net Sales Price.
j. BHB may use third parties to track, calculate, and disburse Commission Fee
payments to Marketing Affiliate. In such an event, Marketing Affiliate shall be
required to utilize the same in order to receive payment hereunder and shall be
subject to the terms and conditions set forth by such third party site. Marketing
Affiliate shall fully cooperate with BHB in the use of such third parties, including
the transition from one third party provider to another.
k. Payments to Marketing Affiliate may be withheld, in whole or in part, by BHB if
Contractor is in breach of this Agreement and fails to cure such breach promptly
upon receiving notice of the same.
l. BHB reserves the right to revise the Commission Rate and how it is earned
hereunder upon prior notice to the Marketing Affiliate; provided such revision will
not be effective until the first day of a month after 30 days have passed since
Marketing Affiliate received such notice.
3. Bonus.
a. Marketing Affiliate shall earn a flat bonus payment (the “Bonus”) based upon the
total number of individual Sales entered into by Customers which were solicited by
Marketing Affiliate during the applicable Month based upon the following
schedule:
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Number of Individual
Customer Sales
Flat Bonus Amount
2,000 $2,500
3,500 $5,000
5,000 $10,000
b. At the end of each Month, BHB will determine the amount of the Bonus Marketing
Affiliate is eligible to receive by summing the number of individual Sales entered
into by Customers solicited by Marketing Affiliate during the applicable Month and
shall pay the Bonus amount corresponding to such number of individual Sales set
forth in Section 3(a) above. For example, if Marketing Affiliate solicits 2,200
individual Sales from Customers in a Month (and such orders are filled and paid
for), Marketing Affiliate shall earn a $2,500 Bonus for that Month. If Marketing
Affiliate solicits 7,000 individual Sales in a Month (and such orders are filled and
paid for), Marketing Affiliate shall earn a $10,000 Bonus for that Month.
c. The Bonus shall be paid by BHB to Marketing Affiliate along with the Commission
Fee.
4. Free Products.
a. BHB, in its sole discretion, may, from time to time, deliver to Marketing Affiliate
a Product selected by Marketing Affiliate free of charge (“Free Products”).
b. Free Products shall not be sold by Marketing Affiliate. Free Products are not
intended for re-sale by any third party. Free Products are delivered to Marketing
Affiliate “AS IS WHERE IS” without any warranty of any kind. Free Products are
intended to be used solely by Marketing Affiliate for the purpose of improving the
Services.
5. Marketing Affiliate Sites, Links, Landing Pages, and Content.
a. All BHB graphics, logos, or other insignia (“BHB Logos”) utilized by Marketing
Affiliate on Marketing Affiliate Sites shall be provided by BHB.
b. BHB shall designate certain BHB Sites as landing pages for links utilized by
Marketing Affiliate on its Marketing Affiliate Sites for the purpose of directing
Customers to BHB Sites in relation to the Services (“Links”). Marketing Affiliate
shall only direct Customers to and use Links to BHB Sites approved by BHB. BHB
reserves the right to disable any Links or their landing pages at any time in its sole
discretion upon notice to Marketing Affiliate.
c. All content related to BHB and/or Products utilized on Marketing Affiliate Sites in
relation to the Services, including but not limited to articles, writings, pictures,
graphics, images, videos, gifs, memes, or other similar content (“Content”) is
subject to review, approval, and removal from Marketing Affiliate Sites by BHB.
d. BHB may provide Marketing Affiliate access to pre-approved Content created by
BHB and BHB Logos for use on Marketing Affiliate Sites solely in relation to the
Services.
e. Marketing Affiliate shall immediately remove and/or disable Content or Links upon
the request of BHB.
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f. Marketing Affiliate Sites utilized in performance of the Services shall not contain
any materials or links to materials which infringe upon the intellectual
property/trademark rights of any party, including BHB, or which are false,
misleading, explicit, offensive, harassing, spamming, intimidating, illegal,
pornographic or otherwise inappropriate for use in the Services.
g. Marketing Affiliate shall not use BHB company or Product names or BHB Logos
as part of Marketing Affiliate’s website domain, blog, Facebook account, YouTube
channel, Twitter user name, Instagram handle, or any URL associated with
Marketing Affiliate.
6. Promotional Codes
a. Upon Marketing Affiliate’s request, BHB, in its sole discretion, may deliver to
Marketing Affiliate promotional codes for a discount off the Net Sales Price of
Products for use by third party visitors to a Marketing Affiliate Site (“Promotional
Codes”).
b. BHB reserves the right to modify or disable Promotional Codes at any time upon
notice to Marketing Affiliate. Upon receiving any such notice, Marketing Affiliate
shall modify the promotion as instructed or, in the event of disabling, remove all
references to such Promotional Codes.
c. Promotional Codes may be limited to certain Products and with respect to specific
quantities of Products in BHB’s sole discretion.
d. Promotional Codes may not be used by Marketing Affiliate or its employees or
contractors.
e. Marketing Affiliate shall not use Promotional Codes on coupon based websites
such as GROUPON.COM, RETAILMENOT.COM, COUPONTRADE.COM or
any other similar functioning sites.
f. Promotional Codes are provided by BHB in an amount determined by BHB in its
sole discretion. The amount of the Promotional Code you receive in relation to a
Product may be more or less than that offered by BHB or other marketing affiliates.
7. Intellectual Property
a. “Intellectual Property Rights” means all intellectual property and industrial
property rights comprising or relating to: (i) patents; (ii) trademarks; (iii) internet
domain names, whether or not trademarks, registered by any authorized private
registrar or governmental authority, web addresses, web pages, websites, and
URLs; (iv) works of authorship, expressions, designs, and design registrations,
whether or not copyrightable, including copyrights and copyrightable works,
software, and firmware, data, data files, and databases and other specifications and
documentation; (v) trade secrets; and (vi) all other intellectual property and
industrial property rights, and all rights, interests, and protections that are
associated with, equivalent or similar to, or required for the exercise of, any of the
foregoing, however arising, in each case whether registered or unregistered and
including all registrations and applications for, and renewals or extensions of, such
rights or forms of protection pursuant to the laws of any jurisdiction in any part of
the world.
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b. Marketing Affiliate acknowledges and agrees that: (i) any and all of BHB’s
Intellectual Property Rights are the sole and exclusive property of BHB or its
licensors; (ii) Marketing Affiliate shall not acquire any ownership interest in any of
BHB’s Intellectual Property Rights under this Agreement; (iii) any goodwill
derived from the use by Marketing Affiliate of BHB’s Intellectual Property Rights
inures to the benefit of BHB or its licensors, as the case may be; (iv) if Marketing
Affiliate acquires any Intellectual Property Rights in or relating to any BHB
Intellectual Property Rights by operation of law, or otherwise, such rights are
deemed and are hereby irrevocably assigned to BHB or its licensors, as the case
may be, without further action by either of the Parties; and (v) Marketing Affiliate
shall use BHB’s Intellectual Property Rights solely for the purposes of performing
its obligations under this Agreement and only in accordance with this Agreement
and the instructions of BHB.
c. Subject to the terms and conditions of this Agreement, BHB grants to Marketing
Affiliate a non-exclusive, non-transferable, and non-sublicensable license to use
BHB’s trademarks during the term of this Agreement solely in connection with the
marketing, promoting, advertising, and sale of Products. Other than the express
licenses granted by this Agreement, BHB grants no right or license to Marketing
Affiliate by implication, estoppel, or otherwise to Products or any of BHB’s
Intellectual Property Rights.
8. Miscellaneous
a. Marketing Affiliate shall indemnify and defend BHB and its officers, directors,
employees, agents, affiliates, successors, and permitted assigns (collectively,
“Indemnified Party”) against any and all losses, damages, liabilities, deficiencies,
claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or
expenses of whatever kind, including attorney fees, that are incurred by
Indemnified Party, arising out of or related to any: (a) breach or non-fulfillment of
any provision of this Agreement by Marketing Affiliate or Marketing Affiliate’s
personnel; or (b) any failure by Marketing Affiliate or its personnel to comply with
any applicable federal, state or local laws, regulations, or codes in the performance
of its obligations under this Agreement.
b. This Agreement may be terminated by either Party at any time, upon notice to the
non-terminating Party. Upon the termination of this Agreement, commissions will
be paid to Representative on all finalized Sales with Customers through the date of
termination for which Marketing Affiliate is entitled to a Commission Fee for
hereunder. Upon the termination of this Agreement, Marketing Affiliate shall
promptly remove all links to BHB Sites and remove any and all Content and BHB
Logos from Marketing Affiliate Sites.
c. Marketing Affiliate is an independent contractor of BHB. Neither Marketing
Affiliate nor any of its personnel is an employee of BHB for the purposes of payroll
taxes, social security, unemployment taxes, or workman’s compensation, or any
other purpose. Nothing contained in this Agreement shall be construed as creating
any agency, partnership, joint venture, corporate affiliation or other form of joint
enterprise, employment, or fiduciary relationship between the parties. Neither
party, by virtue of this Agreement, will have any right, power, or authority to act or
{1979200;7}
create an obligation, express or implied, on behalf of the other party. Furthermore,
BHB will not be held responsible for any expenses of Marketing Affiliate unless
authorized in writing by BHB in advance of such expenditure.
d. This Agreement is not assignable in whole or in part by Marketing Affiliate. This
Agreement may be assigned by BHB at anytime.
e. This Agreement binds and benefits the Parties and their respective legal
representatives, successors, and permitted assigns.
f. BHB reserves the right to amend this Agreement. In such event, you will be notified
of such amended terms and conditions. If any such modification is unacceptable to
you, you may terminate this Agreement. Your continued performance of Services
for BHB shall be deemed an acceptance of the amended Agreement.
g. This Agreement and all claims or causes of action arising out of or relating to this
Agreement will be governed by and construed in accordance with the laws of the
State of Colorado, USA, including Colorado’s Uniform Commercial Code, without
regard to the chosen jurisdiction’s choice-of-law principles. The Parties agree that
the United Nations Convention on Contracts for the International Sale of Goods
does not apply to this Agreement. Any dispute arising under this Agreement shall
be resolved through binding arbitration according to the Rules of the American
Arbitration Association under its Commercial Arbitration Rules and Mediation
Procedures; provided, however, the Parties shall have the right to invoke self-help
remedies (such as set-off), and/or request ancillary or provisional judicial remedies
(such as specific performance, injunction, and restraining order), before, during or
after any arbitration. Venue for any such ancillary and/or provisional judicial
remedy shall reside exclusively in the state or federal courts having jurisdiction in
or for Arapahoe County, Colorado, USA. Use of self-help or ancillary and/or
provisional judicial remedies shall not operate as a waiver of either Party’s right to
compel arbitration. Any ancillary or provisional judicial remedy which would be
available from a court at law shall be available from the Arbitrator. The seat or
place of arbitration shall be Denver, Colorado, USA. The arbitration shall be
conducted and the award shall be rendered in the English language. Except as may
be required by law, no Party and no Arbitrator may disclose the existence, content
or results of any arbitration without the prior written consent of both Parties, except
to the extent necessary to protect or pursue a legal right. This Section shall survive
the expiration or earlier termination of this Agreement. In the event suit or action
is brought to enforce or interpret any of the provisions of this Agreement, or that
arise out of or relate to this Agreement, the Parties agree to reimburse the prevailing
Party’s reasonable attorney fees, court costs, and all other expenses, whether or not
taxable by the court as costs, in addition to any other relief to which the prevailing
Party may be entitled. The determination of who is the prevailing Party and the
amount of reasonable attorney fees to be paid to the prevailing Party shall be
decided by agreement of the Parties, or, if the Parties cannot reach agreement, then
by the Arbitrator.
h. If any part of this Agreement is held to be unenforceable in a court of law, such
provision will be severed, and the remainder of this Agreement will remain in full
force and effect. Further, upon a determination that any term or provision is invalid,
illegal, or unenforceable, the court may modify this Agreement to effect the original
{1979200;7}
intent of the Parties as closely as possible in order that the covenants contemplated
by this Agreement be consummated as originally contemplated to the greatest
extent possible.
i. This Agreement, together with all documents incorporated herein, is the final and
exclusive agreement between the Parties with respect to its subject matter.