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This Agreement contains the terms and conditions that shall apply to an individual's or an entity's participation in the WellCard affiliate program (the "Program"). As used in this Agreement, "WellCard," "we", "us" or "our" refers to WellCard "you" or "your" refers to the applicant; "Participant" shall mean an applicant which has been approved by WellCard to be a participant of the Program; "Sponsoring Web Site" shall mean the World Wide Web site from which you will link to the WellCard web sites (the "WellCard Site"); "Product" refers to any item or service listed on the WellCard site, and all dollars ($) shall mean United States dollars.
1. Enrollment in the Network
To begin the enrollment process, you will submit a complete Affiliate Network Application via our web site. We will notify you of your acceptance or rejection. We may reject your site, at any time, if we determine (at our sole discretion) that it is unsuitable for the Affiliate Network for any reason. As the owner/Operator of a site participating in the WellCard Affiliate Network you agree not to incorporate any images or content in said site including, but not limited to, images or content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable, such as sites that facilitate illegal activity, depict sexually explicit images; promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promote illegal activities or incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights (collectively "Content Restrictions"). If we reject your application for any of the above-mentioned reasons, you have the right to reapply to the Affiliate Network at any time thereafter, if you have remedied the problem.
2. Utilizing Our Links on Your Site
As an affiliate site ("Affiliate Site"), we will make available to you banner advertisements for our site, button links to our site and/or text links to our site, which may contain WellCard program logos and identifying words (these links sometimes being referred to herein collectively as "Links", or individually as a Link"), which, subject to the terms and conditions hereof, you may display on your site. In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. All Affiliate Sites shall display such graphic images prominently throughout your site as you see fit and with our consent. You shall not alter, modify or expand the links in any way; however, a Link may be modified and/or expanded with our written consent. Each Link connecting users of your site to our site will in no way alter the look, feel or functionality of our site. We have the right at our sole discretion to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement.
3. Order Processing
We will be responsible for providing all information necessary to allow you to make appropriate Links from your site to our site. However, we must approve all Links. We will process orders placed by customers who follow the Links from your site to the WellCard sites. We reserve the right to reject orders that do not comply with certain requirements that we periodically may establish. We will be solely responsible for all aspects of order processing and fulfillment, including order entry, payment processing, shipping, cancellations, returns and related customer service. We will track the volume and amount of sales generated by your site and will make un-audited reports, summarizing this sales activity, available to you through our site. The form, content, and frequency of the reports may vary from time to time in our discretion. To permit accurate tracking, reporting, and fee accrual, you must ensure that the Links between your site and our site are properly formatted.
We will pay you a commission for each WellCard membership purchased, based on the aforementioned commission schedule (located at www.XXXXXXXXXXXXX). For the purposes of this agreement WellCard membership shall mean member provides to WellCard a valid credit card number which, upon billing the appropriate fee with respect to such member, is not declined by a merchant processor or credit card issuer, resulting from a link to WellCard web site appearing on the affiliate site or in e-mails sent by affiliate to said affiliates opt-in list, and (b) is not already a member any WellCard membership program. The Commission Rate is subject to change at any time or from time to time, in our sole and absolute discretion. You will be notified of any change in the Commission Rate via the email address you provide us. A commission will only be paid if the visitor to our site is tracked by the system from the time of the Link to the time of the sale. No commission will be paid if the visitor to our site cannot be tracked by our system or if the Visitor returns to the WellCard site and purchases a membership without utilizing a link. All determinations of whether a commission is payable will be made by WellCard and will be final and binding.
5. Commission Payment
We will pay you commissions on a monthly basis. However, if the commissions payable to you for any month are less than $50.00 (the "Commission Payment Floor"), we will hold those commissions until the total amount due is at least equal to the Commission Payment Floor. The Commission Payment Floor is subject to change at any time or from time to time, in our sole and absolute discretion. You will be notified of any change in the Commission Payment Floor.
6. Report of Sales
You will be given a password and have the ability to enter a password protected site to receive your sales statistics on a daily basis.
7. Policies and Pricing
Customers who buy Product through the Affiliate Network will be deemed to be customers of WellCard. Accordingly, all WellCard rules, policies, and operating procedures concerning customer orders, customer service, and sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for Product sold under the Affiliate Network in accordance with our own pricing policies. Product prices and availability may vary from time to time. Because price changes may affect items that you already have listed on your site, you may not include price information in your descriptions. Prices for the products will be set solely by WELLCARD in our sole discretion.
8. Non-Exclusive Limited License and Use of WellCard Logos and Trademark
We grant you a non-exclusive, non-transferable, revocable right to (i) access our site through 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, solely for the purpose of selling Product on your site for WellCard. You may not alter, modify or change the WellCard Marks in any way. You are only entitled to use the WellCard Marks to the extent you are a member, in good standing, of the Affiliate Network.
You shall not make any specific use of any WellCard Marks for purposes other than selling Product, without first submitting a sample of such use to us and obtaining our prior written consent. You agree not to use the WellCard Marks in any manner that is disparaging or that otherwise portrays WellCard in an negative light. We may revoke the rights granted to you pursuant to this section at any time by giving you written notice. You shall obtain no rights in and to the WellCard Marks. The rights granted to you pursuant to this section shall terminate upon the effective date of the expiration or termination of this Agreement.
9. Non-Exclusive Limited License and Use of Affiliates Logos and Trademarks
You grant us a non-exclusive license to utilize your names, titles, logos, and trademarks (collectively the "Affiliate Marks"), and to advertise, market, promote and publicize in any manner our rights hereunder. Notwithstanding anything herein to the contrary, we shall not be required to so advertise, market, promote or publicize. You hereby represent and warrant that you are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use same in the manner contemplated herein, and such grant does not or will not (i) breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon you, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
This license shall terminate upon the effective date of the expiration or termination of this Agreement.
You shall not create, publish, distribute or permit any written material that makes reference to us, without first submitting such material to us and receiving our written consent.
11. Responsibility for Your Site
You will be solely responsible for the development, operation and maintenance of your site and for all materials that appear on your site. We shall have no responsibility for the development, operation and maintenance of your site and for all materials that appear on your site. You hereby represent and warrant to us that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), and that materials posted on your site are not libelous or otherwise illegal. You must have express permission to use another party's copyrighted or other proprietary material. We will not be responsible if you use another party's copyrighted or other proprietary material in violation of the law.
12. Term of the Agreements
The term of this Agreement will begin upon our acceptance of your Affiliate Network Application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination. Notice by e-mail, to your address on our records, is considered sufficient notice for to terminate this Agreement. Upon such notice, you agree to promptly destroy or return to WellCard all artwork pertaining to WellCard in your possession or control and you shall immediately remove from your site any or all WellCard Marks, links to the WellCard site, and all references to WellCard and their respective sites. If this Agreement is terminated because you have violated the terms of this Agreement or if this Agreement is terminated because your site becomes subject to the Content Restrictions set forth in Section 1, you are not eligible to receive any commission payments, even for commissions earned prior to the date of termination. If this Agreement is terminated for any other reason, you are only eligible to earn a commission on sales occurring during the term of the Agreement, and commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement, at any time and at our sole discretion. Notice of any change by the e-mail address you provided, to your address on our records, or the posting on our site of a change notice or a new agreement, is considered sufficient notice for notifying you of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available commission fees, commission schedules, payment procedures, and Affiliate Network rules. All such modifications shall take effect 48 hours after we serve notice as provided above, unless we indicate otherwise. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Network, following our posting of a change notice or new agreement on our site, will constitute binding acceptance of the change.
14. Relationship of Parties
You and WellCard are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. 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 otherwise, that reasonably would contradict anything in this Section.
15. Limitation of Liability
We will not be liable for indirect, incidental, special, or consequential punitive or multiple damages, including without limitation any damages resulting from loss of use, loss of business, loss of revenue, loss of profits, or loss of data, arising in connection with this Agreement, the Affiliate Network, WellCard performance, or WellCard performance of services or of any other obligations relating to the Agreement, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Affiliate Network will not exceed the total commissions paid or payable to you under this Agreement. The foregoing limitation of liability shall apply regardless of the cause of action under which such damages are sought.
We make no express or implied warranties or representations with respect to the Affiliate Network or any Product or other items sold through the Affiliate Network. 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.
17. Representations and Warranties
You hereby represent and warrant to us that 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; and that the execution, delivery and performance by you of this Agreement are within your legal capacity and power; have been duly authorized by all requisite action on your part; require the approval or consent of no other persons; and neither violate nor constitute a default under the (i) provision of any law, rule, regulation, order, judgment or decree to which you are subject or which is binding upon you, or (ii) the terms of any other agreement, document or instrument applicable to you or binding upon you.
We may disclose
to you certain information as a result of your participation as part
of the Affiliate Network, which information we consider to be confidential
(herein referred to as "Confidential Information"). For
purposes of this Agreement, the term "Confidential Information"
shall include, but not be limited to, any modifications to the terms
and provisions of this Affiliate Network Agreement made specifically
for your site and not generally available to other members of the
Affiliate Network, Website, business and financial information relating
to WellCard, customer and vendor lists relating to WellCard, and pricing
and sales information for WellCard and any members of the Affiliate
Network, other than you. Confidential Information shall also include
any information that we designate as confidential during the term
of this Agreement.
You hereby agree to indemnify, defend and hold harmless WellCard, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, demands, losses, liabilities, damages or expenses (including attorneys' fees and costs) of any nature whatsoever incurred or suffered by us (collectively the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of, are related to, or are based on (i) any claim or threatened claim that our use of the Affiliate Trademarks infringes on the rights of any third party; (ii) the breach of any representation or warranty made by you herein; or (iii) or any claim related to your site.
20. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETITIVE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE NETWORK AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
This Agreement will be governed by the laws of the United States and the State of Delawre, without reference to rules governing choice of laws. Any action or dispute arising out of or relating to this Agreement, including any issues relating to arbitrability or the scope of this arbitration clause, will be finally settled by arbitration in the accordance with the rules of the American Arbitration Association and the United States Arbitration Act. Judgment upon the award rendered by the arbitrator(s) may be entered by any court with jurisdiction. The arbitration will be held in Wilmington Delaware. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
THIS IS A LEGAL
AGREEMENT BETWEEN YOU AND WELLCARD. BY CLICKING ON THE
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