To participate in the Wellpath Affiliate Marketing Program (the “Affiliate Program”) you must accept these terms and conditions (these “Terms”). Please read them carefully. These Terms are in addition to any platform terms and conditions set forth by the platform (“Platform Terms”) we have partnered with to facilitate the Affiliate Program. If there is any conflict between these Terms and the Platform Terms, these Terms will control.
Description of the Affiliate Program
The Affiliate Program allows you to earn commissions from sales generated by your website or social media user-generated content (referred to here as your “Site") by placing affiliate links on your Site. The links must properly use the special “tagged" link formats we provide and comply with these Terms (“Affiliate Links").
When users click through the Affiliate Links to purchase an item sold on our website or storefront, you can receive commission income for qualifying purchases, as further described in (and subject to the limitations in) the Platform Terms.
Affiliate Program Compliance Requirements
You must comply with these Terms to participate in the Affiliate Program and receive commissions. You must promptly provide us with any information that we request to verify your compliance with these Terms.
If you violate these Terms, then, in addition to any other rights or remedies available to us, we reserve the right to permanently (to the extent permitted by applicable law) cease payment of (and you agree you will not be eligible to receive) any and all commissions otherwise payable to you under these Terms, whether or not directly related to such violation without notice.
Prohibited Content
You will not post Affiliate Links or use Program Content on any sites that:
promote sexually explicit material or violence
promote discrimination based on race, sex, religion, national origin, or physical disability
promote illegal activities
include hateful content
make medical claims in regards to our products/services (ie. the curing or recession of an ailment)
target users under 14 years of age
transmit SPAM or other unsolicited electronic messages
Digital Advertising
By participating in the Affiliate Program, you agree not to run PPC or other digital advertising campaigns that:
Bid on an of our branded terms
Bid on an derivatives of our branded terms
Broad-match to our branded terms
You also agree to not advertise our products using any shopping or product listing ads such as Google Shopping / Product Listing Ads.
Customers
Our customers are not, by virtue of your participation in the Affiliate Program, your customers. As between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on the Amazon Site or website will apply to those customers and may be changed at any time. You will not handle or address any contacts with any of our customers, and, if contacted by any of our customers for a matter relating to interaction with any of our websites or store fonts, you will state that those customers must follow contact directions on that site to address customer service issues.
Warranties
You represent, warrant, and covenant that (a) you will participate in the Affiliate Program and create, maintain, and operate your Site in accordance with these Terms, (b) neither your participation in the Affiliate Program nor your creation, maintenance, or operation of your Site will violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, guidelines, codes of practice, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any governmental authority that has jurisdiction over you (including all such rules governing communications, data protection, advertising, and marketing), (c) you are lawfully able to enter into contracts (e.g. you are not a minor or otherwise legally prevented from contracting), (d) you have independently evaluated the desirability of participating in the Affiliate Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in these Terms, (e) you will not participate in the Affiliate Program if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you operate; (f) you will comply with all U.S. export and re-export restrictions, and applicable non-US export and re-export restrictions consistent with U.S. law, that may apply to goods, software, technology and services, and (g) the information you provide in connection with the Affiliate Program is accurate and complete at all times. You can update your information by logging into your account on the Associates Site and selecting “Account Settings".
We do not make any representation, warranty, or covenant regarding the amount of traffic or commission income you can expect at any time in connection with the Affiliate Program, and we will not be liable for any actions you undertake based on your expectations.
Identifying Yourself as an Affiliate
All content on your Site that includes Affiliate Links must comply with the Federal Trade Commission’s (the “FTC”) Guides Concerning Endorsements and Testimonials. You must clearly and conspicuously disclose your “material connection” with us, making it clear that you are being compensated for referring customers to us. You must place the disclosure in plain sight in close proximity to any audio or visual communications that you make about us, our brands, and our products. In addition, your content should only make factual statements about our brand and products which you know for certain are true and can be proven or verified.
Term and Termination
These Terms will begin upon your registration for the Affiliate Program. Either you or we may terminate these Terms at any time, with or without cause (automatically and without recourse to the courts, if permitted under applicable law), by giving the other party written notice of termination provided that the effective date of such termination will be 7 calendar days from the date notice is provided. In addition, we may terminate these Terms or suspend your account immediately upon written notice to you for any of the following: (a) you are in material breach of these Terms, (b) we believe that we may face potential claims or liability in connection with your participation in the Affiliate Program; (c) we believe that our brand or reputation may be tarnished by you or in connection with your participation in the Affiliate Program; (d) your participation in the Affiliate Program has been used for deceptive, fraudulent or illegal activity; or (e) we have previously terminated these Terms (or suspended your account) with respect to you or other persons that we determine are affiliated with you or acting in concert with you for any reason.
We may hold accrued unpaid commissions for a reasonable period of time following termination to ensure that the correct amount is paid (for example, to account for any cancelations or returns).
Upon any termination of these Terms, all rights and obligations of the parties will be extinguished, except for Sections 3, 4, 5, 6, 7, 8, 9, 11, and 12, together with any payable but unpaid payment obligations under these Terms, will survive termination. No termination of these Terms will relieve either party for any liability for any breach of, or liability accruing under, these Terms prior to termination.
License to Program Content
In order to facilitate your advertisement of our products, we may make available to you data, images, text, link formats, widgets, links, marketing content, and other linking tools, application program interfaces, and other information in connection with the Affiliate Program (“Program Content"), we grant you a non-exclusive, non-transferable, revocable right to use the Program Content for the sole purpose of generating traffic to our website or storefront to sell products. You may not alter, modify or change the Program Content in any way without our written consent. This license will immediately terminate upon termination of your participation in the Affiliate Program. We reserve all of our rights in the Program Content.
Disclaimers
THE AFFILIATE PROGRAM, ANY PRODUCTS OFFERED BY US, AND ANY OTHER INTELLECTUAL PROPERTY RIGHTS, INFORMATION AND CONTENT PROVIDED BY US IN CONNECTION WITH THE AFFILIATE PROGRAM (COLLECTIVELY THE “SERVICE OFFERING”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE OFFERING. WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERING, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY LAW, CUSTOM, COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH YOUR PARTICIPATION IN THE AFFILIATE PROGRAM, OR (Z) ANY TERMINATION OR SUSPENSION OF YOUR PARTICIPATION IN THE AFFILIATE PROGRAM. NOTHING IN THIS SECTION 7 WILL OPERATE TO EXCLUDE OR LIMIT WARRANTIES, LIABILITIES, OR REPRESENTATIONS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitations on Liability
NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA ARISING IN CONNECTION WITH THE SERVICE OFFERINGS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THESE TERMS IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED. YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN EQUITY, INCLUDING THE RIGHT TO SEEK SPECIFIC PERFORMANCE, INJUNCTIVE OR OTHER EQUITABLE RELIEF IN CONNECTION WITH THESE TERMS. NOTHING IN THIS PARAGRAPH WILL OPERATE TO LIMIT LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
Indemnification
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL HAVE NO LIABILITY FOR ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THE CREATION, MAINTENANCE, OR OPERATION OF YOUR SITE (INCLUDING YOUR USE OF ANY SERVICE OFFERING) OR YOUR VIOLATION OF THESE TERMS, AND YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US, OUR AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) RELATING TO (A) YOUR SITE OR ANY MATERIALS THAT APPEAR ON YOUR SITE, INCLUDING THE COMBINATION OF YOUR SITE OR THOSE MATERIALS WITH OTHER APPLICATIONS, CONTENT, OR PROCESSES, (B) THE USE, DEVELOPMENT, DESIGN, MANUFACTURE, PRODUCTION, ADVERTISING, PROMOTION, OR MARKETING OF YOUR SITE OR ANY MATERIALS THAT APPEAR ON OR WITHIN YOUR SITE, (C) YOUR USE OF ANY SERVICE OFFERING, WHETHER OR NOT SUCH USE IS AUTHORIZED BY OR VIOLATES THESE TERMS OR APPLICABLE LAW, (D) YOUR VIOLATION OF ANY TERM OR CONDITION OF THESE TERMS (INCLUDING ANY PROGRAM POLICY), (E) YOUR TAXES AND DUTIES OR THE COLLECTION, PAYMENT, OR FAILURE TO COLLECT OR PAY YOUR TAXES OR DUTIES, OR THE FAILURE TO MEET TAX REGISTRATION OBLIGATIONS OR DUTIES, OR (F) YOUR OR YOUR EMPLOYEES' OR CONTRACTORS’ NEGLIGENCE OR WILLFUL MISCONDUCT. WE OR OUR NOMINEE MAY TAKE LEGAL ACTION AND PERFORM ANY PROCEDURAL ACT ON BEHALF OF ANY AMAZON PARTY, INCLUDING THROUGH SPECIAL MANDATE, TO EXERCISE OR DEFEND A LEGAL CLAIM OR FOR THE PROTECTION OF RIGHTS, INCLUDING FOR THE PURPOSE OF ENFORCING THIS SECTION.
Disputes
Binding Arbitration
The sole and exclusive jurisdiction and venue for resolving any controversy or claim arising out of or relating to the Affiliate Program or these Terms, including, without limitation, any dispute with respect to this arbitration provision, any claim in tort, or any claim for violation of any federal, state or local statute, or ordinance or regulation (collectively, “Disputes”), shall be through confidential binding arbitration in Los Angeles County, California. The arbitration shall be conducted by JAMS, whose rules applicable to such disputes shall be in force, and judgment or the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. THE PARTIES HERETO WAIVE THE RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY ARBITRABLE CONTROVERSY OR CLAIM.
Waiver of Class Arbitration
To the fullest extent permissible under applicable law, all Disputes shall be resolved by confidential binding arbitration on an individual basis. You expressly agree that no other Disputes shall be consolidated or joined with your Dispute, whether through class arbitration proceedings or otherwise. By participating in the Affiliate Program, you acknowledge that you are voluntarily and knowingly waiving any right to participate as a representative or member of any class of claimants pertaining to any Dispute subject to arbitration under these Terms, such that you shall not be entitled to arbitrate any Dispute as a representative, a class action or in a private attorney general capacity.
Applicable Law
You agree that applicable federal law, and the laws of the state of California, without regard to principles of conflict of laws, will govern the Affiliate Program and these Terms and any dispute of any sort that might arise between you and us.
Taxes
We or the Platform may deduct or withhold any taxes that we may be legally obligated to deduct or withhold from any amounts payable to you under the Affiliate Program. From time to time, we may request tax information from you. If we request tax information from you and you do not provide it to us, we reserve the right (in addition to any other rights or remedies available to us) to hold your commission income until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
Additional Provisions
We may send you emails relating to the Affiliate Program from time to time. In addition we may (a) monitor, record, use, and disclose information about your Site and users of your Site that we obtain in connection with your display of Affiliate Links and Program Content, (b) review, monitor, crawl, and otherwise investigate your Site to verify compliance with these Terms, and (c) use, reproduce, distribute, and display your logo and implementation of Program Content displayed on your Site as examples of best practices in our educational materials.
You acknowledge and agree that (a) we and our affiliates may at any time (directly or indirectly) solicit traffic on terms that may differ from those contained in these Terms, (b) we and our affiliates may at any time (directly or indirectly) operate sites or applications that are similar to or compete with your Site, (c) our failure to enforce your strict performance of any provision of these Terms will not constitute a waiver of our right to subsequently enforce such provision or any other provision of these Terms, and (d) any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under these Terms can be made, taken, or given in our sole discretion and are only effective if provided in writing by our authorized representative.
You may not assign these Terms, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, these Terms will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
Any information relating to us or any of our affiliates that we provide or make accessible to you in connection with the Affiliate Program that is not known to the general public or that reasonably should be considered to be confidential is “Confidential Information” and will remain our exclusive property. You will use Confidential Information only to the extent reasonably necessary for your performance under these Terms and ensure that all persons or entities who have access to Confidential Information in connection with your account will be made aware of and will comply with the obligations in this provision. You will not disclose Confidential Information to any third party (other than your affiliates bound by confidentiality obligations) and you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in these Terms. This restriction will be in addition to the terms of any confidentiality or non-disclosure agreement between the parties and will apply for the term of your participation in the Affiliate Program and 5 years after termination.
You and we are independent contractors, and nothing in these Terms will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective affiliates. You will have no authority to make or accept any offers or representations on our or our affiliates’ behalf. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of these Terms, you will be deemed to have taken the action yourself.
Notwithstanding anything to the contrary herein, nothing in these Terms will, or will be interpreted or construed to, induce or require any party hereto to act in any manner (including taking or failing to take any actions in connection with a transaction) which is inconsistent with or penalized under any U.S. laws, regulations, rules or requirements that apply to any party to these Terms.
Modification
We reserve the right to modify any of the terms and conditions contained in these Terms at any time and in our sole discretion by posting revising these Terms and posting a change notice or by sending notice of such modification to you by email to the primary email address then-currently associated with your account. YOUR CONTINUED PARTICIPATION IN THE AFFILIATE PROGRAM FOLLOWING THE EFFECTIVE DATE OF SUCH CHANGE WILL CONSTITUTE YOUR ACCEPTANCE OF THE MODIFICATIONS. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THESE TERMS IN ACCORDANCE WITH SECTION 6.
