This Agreement contains the complete terms and conditions that apply to your participation as an affiliate in the Affiliate Program of Medi-Vet Animal Health , and the establishment of Links from your affiliate Web site to our Web site, "Medi-Vet Animal Health ". As used in this Agreement, "we" or "us" means Medi-Vet Animal Health , "you" or "your" means the applicant, and "Product" or "Products" means any and all items offered for sale by us on the Medi-Vet Animal Health web site.
1. Enrollment in the Affiliate Program
To begin the enrollment process, you will submit a complete Affiliate Program
application via our site. We will evaluate your application in good faith and
will notify you of your acceptance or rejection. We may reject your application
if we determine (in our sole discretion) that your site is unsuitable for the
Affiliate Program for any reason, including, but not limited to, inclusion of
content that is in any way unlawful, harmful, threatening, defamatory, obscene,
harassing, or racially, ethnically, or otherwise objectionable.
If we reject your
application, you are welcome to reapply to the Affiliate Program at any time.
You should also note that if we accept your application and your site is
thereafter determined (at our sole discretion) to be unsuitable for the Program,
we may terminate this Agreement at any time.
2. Links on your site
As an Affiliate Site, we will make available to you a variety of graphic and
textual links (each of these links sometimes being referred to herein as "Links"
or, individually, as a "Link"), which, subject to the terms and conditions
hereof, you may display as often and in as many areas on your site as you
desire. The Links will serve to identify your site as a member of our Affiliate
Program and will establish a link from your site to ours. The Links may connect
to different areas of our site.
In utilizing the Links, you
agree that you will cooperate fully with us in order to establish and maintain
such Links. You also agree that you will display in your site only those graphic
or textual images (indicating a Link) that are provided by us, and you will
substitute such images with any new images provided by us from time to time
throughout the term of this Agreement. All Affiliate Sites shall display such
graphic and/or textual images prominently in relevant sections of their site.
All Links may be modified and/or expanded from time to time throughout the term
of this Agreement pursuant to the mutual agreement of the parties hereto. Each
Link connecting users of your site to the pertinent area of our site will in no
way alter the look, feel, or functionality of our site.
You will only earn referral
fees with respect to activity on our site occurring directly through said Links.
We will not be liable to you with respect to any failure by you to use these
Links, including to the extent that such failure may result in any reduction of
amounts that would otherwise be paid to you pursuant to this Agreement.
3. Our Responsibilities
We will be responsible for providing all information necessary to allow you to
make appropriate Links from your site to our site. We reserve the right to
reject orders that do not comply with any requirements that we periodically may
establish. We will be responsible for processing every order placed by a
customer following a special Link from your site, for tracking the volume and
amount of sales generated by your site, and for providing information to
Affiliate Sites regarding sales statistics. We will be responsible for order
entry, payment processing, shipping, cancellations, returns, and related
customer service.
4. Other Responsibilities
and Opportunities of Affiliate Sites
(a) If you qualify and agree to participate as an Affiliate Site, you shall
display Links prominently throughout your site as you see fit and with our
consent.
(b) Compliance with the Agreement: We have the right in 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.
5. Commission Determination
Only Medi-Vet Animal Health Products that are (i) sold by us, (ii) purchased by
users linking to our site from your site pursuant to a Link, (iii) shipped by
us, and (iv) for which we have received full payment will qualify for a
commission (each, a "Qualifying Purchase"). Commission rates will be based on
the aggregate amount actually paid to us for Qualifying Purchases of the
Medi-Vet Animal Health Products, excluding amounts collected by us for sales
taxes, duties, gift-wrapping, shipping, handling, and similar charges, amounts
due to credit card fraud and bad debt, and credits for returned goods ("Net
Sales"). All available items on our site will be included in the computation of
Net Sales.
The base commission rate on
Medi-Vet Animal Health Products will be equal to eight percent (8%) of Net
Sales for Qualifying Purchases. If you place Medi-Vet Animal Health Links on
your main page or on a category specific page, your commission rate will be
equal to 10-15% of Net Sales for Qualifying Purchases. Affiliate sales from
Qualifying Purchases will be checked once per week to determine if the total of
your affiliate orders from Qualifying Purchases constitutes a commission rate
change. 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.
6. Commission Payment
We will pay you commissions on a monthly basis. When the total commissions due
to you (based on Section 5 above) exceeds twenty-five dollars ($25), we will
send a commission check for the applicable commission (less any taxes required
to be withheld under applicable law) and a statement of activity to you.
However, if the referral fees payable to you for any calendar month are less
than $25, we will hold those referral fees until the total amount due is at
least $25 or (if earlier) until this Agreement is terminated. Such commission
checks and statements of activity will be sent approximately five to seven (5-7)
days after the end of each calendar month.
7.Reports of Sales
You will be given a password and have the ability to enter a password-protected
web site to receive your sales statistics on a daily basis.
8. Policies and Pricing
All customers who visit the Medi-Vet Animal Health sites, including, without
limitation, customers who buy Medi-Vet Animal Health Products through the
Affiliate Program, will be deemed to be customers of Medi-Vet Animal Health .
Accordingly, all of our rules, policies, and operating procedures concerning
customer orders, customer service, and Medi-Vet Animal Health Product 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 Medi-Vet Animal Health Products sold under the Affiliate Program in
accordance with our own pricing policies. Prices and availability of Medi-Vet
Animal Health Products may vary from time to time. Because price changes may
affect products that you already have listed on your site, you may not include
price information in your product descriptions. We will use commercially
reasonable efforts to present accurate information, but we cannot guarantee the
availability or price of any particular product.
9. Publicity
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.
10. Licenses and Use of the
Medi-Vet Animal Health Logos and Trademarks
(a) WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (I)
ACCESS OUR SITE THROUGH THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT AND (II) SOLELY IN CONNECTION WITH SUCH LINKS, TO USE THE Medi-Vet
Animal Health TRADEMARKs AND LOGOs AND SIMILAR IDENTIFYING MATERIAL RELATING TO
US (BUT ONLY IN THE FORM(S) THAT ARE SPECIFICALLY PROVIDED BY US TO YOU)
(COLLECTIVELY, THE "LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF LINKING YOUR
SITE TO OUR SITE, WHERE YOUR USERS CAN PURCHASE Medi-Vet Animal Health
PRODUCTS. YOU MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY
WAY. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS TO THE EXTENT THAT YOU
ARE A MEMBER IN GOOD STANDING OF THE AFFILIATE PROGRAM.
(b) You shall not make any specific use of any Licensed Materials for purposes
other than selling Medi-Vet Animal Health Products on your site for Medi-Vet
Animal Health , without first submitting a sample of such to us and obtaining
the prior written consent of your Medi-Vet Animal Health account executive,
which consent shall not be unreasonably withheld. You agree not to use the
Licensed Materials in any manner that is disparaging or that otherwise portrays
us in a negative light. We reserve all of our rights in the Licensed Materials
and of our other proprietary rights. We may revoke your license at any time, by
giving you written notice.
(c)You grant to us a non-exclusive license to utilize your names, titles, and
logos (the "Affiliate Trademarks"), to advertise, market, promote, and publicize
in any manner our rights hereunder; provided, however, that we shall not be
required to so advertise, market, promote, or publicize. This license shall
terminate upon the effective date of the expiration or termination of this
Agreement.
11. Obligations Regarding
Your Site
(a) You will be solely responsible for the development, operation, and
maintenance of your site and for all materials that appear on your site. Such
responsibilities include, but are not limited to, the technical operation of
your site and all related equipment; creating and posting product reviews,
descriptions, and references on your site and linking those descriptions to our
catalog; the accuracy and propriety of materials posted on your site (including,
but not limited to, all Medi-Vet Animal Health Product-related materials);
ensuring that materials posted on your site do not violate or infringe upon the
rights of any third party and are not libelous or otherwise illegal.
(b) You shall not send any unsolicited email messages or “SPAM” regarding the
Affiliate Program, our connection to the Affiliate Program, our products sold
through the Affiliate Program, your connection to the Affiliate Program, or your
products or services sold through the Affiliate Program. You will be found to be
in violation of this Agreement if you send unsolicited mailings using any
portion/feature of the Software/Service provided by Applied Innovations
including an Affiliate Link and this Agreement will be terminated.
(c) We disclaim all liability for all matters for which you are responsible
under this agreement. Further, you will indemnify and hold us harmless from all
claims, damages, and expenses (including, without limitation, attorneys' fees)
relating to the development, operation, maintenance, and contents of your site.
(d) You hereby agree that your site will not, in any way, copy or resemble the
look and feel of our sites nor will you create the impression that your site is
our sites or is a part of our sites. You also hereby agree that your site will
not contain any content of our sites or any materials which are proprietary to
Medi-Vet Animal Health , except (i) with our prior written permission, or (ii)
materials which are obtained by you in accordance with the provisions hereof.
12. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your Affiliate
Program 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 written notice of termination. Upon the termination of this
Agreement for any reason, you will immediately cease use of, and remove from
your site, all Links to our site, and all Medi-Vet Animal Health trademarks,
logos, and all other materials provided by or on behalf of us to you pursuant
hereto or in connection with the Program. You are only eligible to earn
commission on sales occurring during the term, and commissions earned through
the date of termination will remain payable only if the related Medi-Vet Animal
Health Product orders are not cancelled or returned. We may withhold your final
payment for a reasonable time to ensure that the correct amount is paid.
13. Modification
We may modify any of the terms and conditions contained in this Agreement, at
any time and at our sole discretion, by changing this agreement as posted on our
site. Notice of any change by e-mail, 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, for example, changes in
the scope of available referral fees, referral fee schedules, payment
procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR
ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN
THE PROGRAM FOLLOWING CHANGES TO THIS AGREEMENT ON OUR SITE WILL CONSTITUTE
BINDING ACCEPTANCE OF THE CHANGE.
14. Relationship of Parties
You and Medi-Vet Animal Health 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.
Medi-Vet Animal Health may
cite your name or URL in connection with your participation in the program in
materials including, but not limited to, postings on our site, newsletters,
advertisements, and other communications.
15. Disclaimers
We make no express or implied warranties or representations with respect to the
Affiliate Program or any Medi-Vet Animal Health Products sold through the
Affiliate Program (including, without limitation, warranties of fitness for a
particular purpose, merchantability, non-infringement, or any implied warranties
arising out of course of performance, dealing, or trade usage). 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.
16. Representations and
Warranties
You hereby represent and warrant to us as follows:
(a) 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.
(b) The execution, delivery, and performance by you of this Agreement and the
consummation by you of the transactions contemplated hereby will not, with or
without the giving of notice, the lapse of time, or both, conflict with or
violate (i) any provision of law, rule, or regulation to which you are subject,
(ii) any order, judgment, or decree applicable to you or binding upon your
assets or properties, (iii) if you are a legal entity, any provision of your
by-laws or certificate of incorporation or other organizational documents, or
(iv) any agreement or other instrument applicable to you or binding upon your
assets or properties.
(c) 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 your trademarks in the
manner contemplated herein, and such grant does not and will not (i) breach,
conflict with, or constitute a default under any agreement or other instrument
applicable to you or binding upon your assets or properties, or (ii) infringe
upon any trademark, trade name, service mark, copyright, or other proprietary
right of any other person or entity.
(d) No consent, approval, or authorization of, or exemption by, or filing with,
any governmental authority or any third party is required to be obtained or made
by you in connection with the execution, delivery, and performance of this
Agreement or the taking by you of any other action contemplated hereby.
(e) There is no pending or, to the best of your knowledge, threatened claim,
action, or proceeding against you, or any affiliate of yours, with respect to
the execution, delivery, or consummation of this Agreement, or with respect to
your trademarks, and, to the best of your knowledge, there is no basis for any
such claim, action, or proceeding.
(f) You are an adult of at least 18 years of age.
17. Confidentiality
Except as otherwise provided in this Agreement or with the consent of the other
party hereto, each of the parties hereto agrees that all information including,
without limitation, business and financial information, customer and vendor
lists, and pricing and sales information, selling and pricing procedures, trade
secrets, including, without limitation, system designs, program materials
(including source code and any documentation which has not been publicly
distributed or disclosed), operating procedures equipment design, product
specifications, and any other proprietary technology concerning us or you,
respectively, or any of our Affiliates or Kowabunga! Technologies’ My Affiliate
Program provided by or on behalf of any of them shall remain strictly
confidential and secret and shall not be utilized, directly or indirectly, by
such party for its own business purposes or for any other purpose except and
solely to the extent that any such information is generally known or available
to the public through a source or sources other than such party hereto or its
affiliates. Notwithstanding the foregoing, each party is hereby authorized to
deliver a copy of any such information (a) to any person pursuant to a subpoena
issued by any court or administrative agency, (b) to its accountants, attorneys,
or other agents on a confidential basis, and (c) otherwise as required by
applicable law, rule, regulation, or legal process including, without
limitation, the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, and the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
18. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES,
OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS
AGREEMENT OR THE AFFILIATE PROGRAM, 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 PROGRAM WILL NOT EXCEED THE TOTAL
COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
19. Indemnification
You hereby agree to indemnify and hold harmless Medi-Vet Animal Health and its
subsidiaries and affiliates, and their directors, officers, employees, agents,
shareholders, partners, members, and other owners, against any and all claims,
actions, demands, liabilities, losses, damages, judgments, settlements, costs,
and expenses (including reasonable attorneys' fees) (any or all of the foregoing
hereinafter referred to as "Losses") insofar as such Losses (or actions in
respect thereof) arise out of or are based on (i) any claim that our use of the
Affiliate Trademarks infringes on any trademark, trade name, service mark,
copyright, license, intellectual property, or other proprietary right of any
third party, (ii) any misrepresentation of a representation or warranty or
breach of a covenant and agreement made by you herein, including, without
limitation, violation of the policy prohibiting unsolicited emails/SPAM, or
(iii) any claim related to your site, including, without limitation, content
therein not attributable to us.
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 COMPETE WITH YOUR WEB
SITE. 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 SET FORTH IN THIS AGREEMENT.
21. Governing Law
This Agreement will be governed by the laws of the United States and the State
of Louisiana, without reference to rules governing choice of laws. 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 a provision or any other provision of
this Agreement.
22. Paragraphs 11, 12, 15, 17, 18 19, and 21 shall survive any expiration or termination of this Agreement.