BY SUBMITTING AN APPLICATION TO OUR AFFILIATE PROGRAM, YOU ARE CONSENTING TO THIS AFFILIATE AGREEMENT, WHICH ARE THE TERMS AND CONDITIONS OF OUR AFFILIATE PROGRAM.
In consideration of Health for Life and Company LLC (“Company”) maintaining an Affiliate Program for its products including Dr. Nicole Cain ND MA’s Online Courses, and you (“Affiliate”) desiring to participate in the Affiliate Program, Website is (www.drnicolecain.com) it is agreed as follows:
The term of this Agreement shall remain in place for exactly 1 year from the date of signing. At the end of the term, this Agreement will automatically renew for an additional 1 year term unless cancelled by either party in accordance with Section 2.
Company or Affiliate may cancel this Agreement for any reason by providing 30 days written notice to the other party; the date this notice is sent will be the Cancellation Date. Failure to comply with the terms of this Agreement will result in immediate cancellation of this Agreement by the Company and forfeiture by Affiliate of any accrued, unpaid commissions. Company shall pay any pending commissions owed to Affiliate through the Cancellation Date, if a cancellation of this Agreement occurs for any reason other than a violation of this Agreement on the part of the Affiliate. Upon cancellation by either party, Affiliate’s limited license to use the intellectual property of Company for the purpose of promoting the products and/or services offered through the Affiliate Program, will cease as of the Cancellation Date.
3. PROMOTIONAL MATERIALS
Company shall make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate website (the “Promotional Materials”). Affiliate shall display the Promotional Materials on Affiliate’s website prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Materials to Company’s website, as specified by the Company.
4. USE OF PROMOTIONAL MATERIALS
The Affiliate’s use and display of the Promotional Materials on the Affiliate’s website shall conform to the following terms, conditions and specifications:
- Affiliate may not use any graphic, textual or other materials to promote Company’s website, products or services other than the Promotional Materials provided by Company, unless Company approved such other materials in writing prior to their display.
- Affiliate may only use the Promotional Materials for the purpose of promoting the Company's website (and the products and services available thereon), and for linking to the Company's website.
- Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials provided by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from the Company for such alteration or modification.
- The Promotional Materials will be used to link only to Company’s website, to the specific web site page specified by Company.
- Affiliate may make original audio or video recordings for means of promotion referencing the Company’s product and website page, specified company website page.
5. LIMITED LICENSE TO USE INTELLECTUAL PROPERTY
Upon acceptance into the Affiliate Program, Company grants the Affiliate a revocable, non-exclusive, worldwide, royalty-free license to use the Promotional Materials provided by Company during the term of this Agreement. The Affiliate may display these materials on the Affiliate’s website for the sole purpose of participating in the Affiliate Program. The Affiliate is prohibited from distributing, reproducing, modifying, amending, or creating derivative works of the Promotional Materials. Upon cancellation by either party, Affiliate’s limited license to use the Promotional Materials for the purpose of promoting the products and/or services offered through the Affiliate Program, will cease as of the cancellation date. Upon the cancellation date, Affiliate must immediately cease any use of the Promotional Material. The Affiliate is not granted a license to use any of the Company’s intellectual property or proprietary material, other than the Promotional Materials discussed above.
a. Affiliate will be paid a referral fee (“Commission”) of 50% of net sales revenue (For the “evergreen/on-demand version of a course” -- per course/product, for each customer who completes a purchase on the Company website using the unique affiliate link assigned to Affiliate (“Link”) and/or Affiliate “code.” Commissions will be calculated based upon the Net Sales Receivable. The Net Sales Receivable is essentially the money received after Stripe takes their fee (2.5-3.5% of the gross revening). Gross Sales Price is defined as all payments received by the Company by the sale of the product, but not including any shipping and handling, sales tax, finance charges, special service fees such as gift wrapping or packaging, late charges, collection costs, imports/export duties, amounts due to credit card fraud, credits given to customers, bad debt right-off and refunded products or services. The Affiliate shall be paid Commissions only on sales that are tracked through the Company’s online tracking system and indicate the Link/ “Code” as the source.
- Affiliate will be paid a referral fee (“Commission”) of 50% of net sales revenue (For the “LIVE version of a course” -- per course/product, for each customer who completes a purchase on the Company website using the unique affiliate link assigned to Affiliate (“Link”) and/or Affiliate “code.” Commissions will be calculated based upon the Net Sales Receivable. The Net Sales Receivable is essentially the money received after Stripe takes their fee (2.5-3.5% of the gross revening). Gross Sales Price is defined as all payments received by the Company by the sale of the product, but not including any shipping and handling, sales tax, finance charges, special service fees such as gift wrapping or packaging, late charges, collection costs, imports/export duties, amounts due to credit card fraud, credits given to customers, bad debt right-off and refunded products or services. The Affiliate shall be paid Commissions only on sales that are tracked through the Company’s online tracking system and indicate the Link/ “Code” as the source. Note, the LIVE version of a course is usually held only a few times a year--and that the affiliate may have extra marketing duties to make sure this LIVE course sells.
b. The Commission rate is 50% of the evergreen/on-demand version of the course of the Net Sales Receivable of each completed purchase made through the Affiliate’s link/ “Code” and actually paid to the Company. Company reserves the right to change and amend the commission rate structure at any time, in the Company’s sole discretion.
- The Commission rate is 50% of the LIVE version of the course of the Net Sales Receivable of each completed purchase made through the Affiliate’s link/ “Code” and actually paid to the Company. Company reserves the right to change and amend the commission rate structure at any time, in the Company’s sole discretion.
c. Commissions will be paid to the Affiliate via KARTRA at least quarterly, and possibly faster based on KARTRA settings. KARTRA is the program we utilize ( www.kartra.com )--and it depends on the settings of your “business Paypal.” Commissions will be adjusted for orders that are cancelled, returned, or where payment is otherwise refunded to the purchaser. All payments will be made to the Affiliate’s PayPal account unless other arrangements are approved by the Company.
7. CUSTOMER SERVICE
The Company will handle all aspects of customer service for customers who purchase through the Affiliate’s Link/ “Code” including customer inquiries, product orders, and customer billing and collection. Company reserves the right to change the Company’s policies and procedures, pricing structure, add or cancel any special offers, discontinue products or services, or change the terms under which products or services are offered at any time, without any advanced notice to the Affiliate or customers purchasing through the Affiliate’s Link.
8. AFFILIATE’S DUTIES
The Affiliate is solely responsible for the development, maintenance and operation of the Affiliate’s website and for placing Links on Affiliate’s website in compliance with the terms of the Affiliate Program.
Affiliate is responsible for disclosing that the Links provided on its website or marketed to potential customers by other means are affiliate links in accordance with Section 5 of the Federal Trade Commission Act.
Affiliate is responsible for all materials that appear on Affiliate’s website and for ensuring that such items do not infringe upon the rights of any third party including, but not limited to, copyright, trademark, privacy or other proprietary rights.
a. Company’s Warranties: Company represents, warrants and covenants that Company has full authority to enter into this Agreement and that the Affiliate Program, whether conducted by Company or any of its subcontractors, will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable and qualified personnel.
b. Affiliate’s Warranties: Affiliate represents, warrants and covenants that Affiliate has full authority to enter into this Agreement and has or will obtain, during all times relevant hereunder, all of the necessary consents, rights, licenses, clearances, releases or other permissions to lawfully consummate the transactions and lawfully discharge, in all material respects, each and every of Affiliate’s obligations or duties set forth hereunder, whether performance is due now or hereafter during the Term. The Affiliate represents, warrants and covenants that its website does not and will not contain any materials that are illegal and that the Affiliate’s site is not operated for an illegal purpose or in an illegal manner.
c. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED THROUGHOUT THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED.
10. LIMITATION OF LIABILITY
a. IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY TO AFFILIATE FOR ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND
b. IN NO EVENT SHALL THE COMPANY’S LIABILITY EXCEED THE FEES PAID UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY.
c. THE FOREGOING LIMITATIONS IN THIS PARAGRAPH 12 SHALL NOT APPLY TO THE OBLIGATIONS UNDER PARAGRAPHS 6, 9, 13 AND 21.
The Affiliate hereby indemnifies and holds harmless the Company, its officers, directors, employees, contractors, affiliates, agents, successors and assigns from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto, that the Company may incur and which are based in whole or in part upon the Affiliate’s participation in the Affiliate Program, any claims that any of the Affiliate trademarks and other intellectual property and proprietary material infringe upon the rights of any third party, the Affiliate breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies of participation in the Affiliate Program, or any claim related directly or indirectly to the Affiliate use, operation or the content of the Affiliate’s website.
12. ENTIRE AGREEMENT; MODIFICATION; WAIVER
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by all the parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective heirs, legal representatives, successors, and assigns; provided, however, that Affiliate may not assign any of its rights under this Agreement, except to a wholly owned subsidiary entity of Affiliate. No such assignment by Affiliate to its wholly owned subsidiary shall relieve Affiliate of any of its obligations or duties under this Agreement.
14. RECOVERY OF LITIGATION EXPENSES
If any legal action or any arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.
If any term, provision, covenant, or condition of this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
16. INTELLECTUAL PROPERTY
All material contained in the Course/Product(s) and Promotional Materials is considered Intellectual Property owned by The Company and Dr. Nicole Cain ND MA. The affiliate may not copy or reproduce materials that are contained within the course/products(s) or promotional materials for use in any type of business, product, course, or promotional materials that are outside of this affiliate agreement. If an affiliate is found to be violating this statute, their standing as an affiliate will immediately be called into question and may be severed. If the affiliate is found to have taken intellectual property from the Company, they may be subject to a lawsuit.
17. Digital Millennium Copyright Act
Dr Nicole Cain, Health for Life and Company LLC respects the intellectual property rights of others and attempts to comply with all relevant laws. We will evaluate all claims of copyright infringement received and remove any Content concluded to have been posted or distributed in violation of any laws.
Our designated agent under the Digital Millennium Copyright Act of 1998 (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
Dr Nicole Cain, Health for Life and Company LLC
781 Kenmoor Ave SE Suite C, Grand Rapids, MI 49546
If you are under the belief that your content has been copied on the Websites in a way that is considered copyright infringement, please provide our agent with notice in accordance with the requirements of the Act. This includes:
- (i) a description of the copyrighted work that has been infringed and the specific location on the Websites where such work is located;
- (ii) a description of the location of the original or an authorized copy of the copyrighted work;
- (iii) your address, telephone number and email address;
- (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
- (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
18. CONTROLLING LAW
This Agreement and any action related thereto will be governed by the laws of the State of Michigan without regard to its conflict of laws provisions.
19. BINDING ARBITRATION
All disputes will be resolved via arbitration. DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION.
In the event of a dispute arising under or relating to this Agreement, the Content, or the Websites (hereafter referred to as “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”).
Any election to arbitrate, at any time, shall be final and binding on the other party.
If either party elects arbitration, neither shall have the right to litigate such claim in court or to have a jury trial. Either party may bring its claim into its local small claims court if that is permitted by the small claims court rules and if they are within such a court’s jurisdiction.
All disputes will be resolved before a neutral arbitrator in the state of Michigan, selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules www.adr.org and Procedures and in accordance with the Expedited Procedures in those rules,or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures.
All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction.
This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online or with a designated proxy.
If conducted in person, the arbitration shall take place in the United States in the state of Michigan. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 18, nothing in this Agreement will prevent us from seeking injunctive relief in any court of jurisdiction as necessary to protect our proprietary interests.
20. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law,
- (i) no arbitration or proceeding shall be joined with any other
- (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures
- (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY ONLY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
21. EQUITABLE RELIEF
You acknowledge and agree that in the event of a breach or threatened violation of any of our trademarked or intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement.
We may, without waiving any other agents under this Agreement, seek from any court having jurisdiction any interim, provisional, or equitable, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration as referenced above.
You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of Michigan for purposes of any such action by us.
22. NO WAIVER
You acknowledge that any failure on our part to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instances except as expressly agreed by us and you in writing. This Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will insure to the benefit of our successors, assigns, licensees, and sublicensees.
23. INTERNATIONAL USE
This website is controlled and operated by Dr Nicole Cain, Health for Life and Company LLC. Dr Nicole Cain, Health for Life and Company LLC makes no representations that the Dr Nicole Cain, Health for Life and Company LLC Content is appropriate or legally available for use in locations outside the United States. If you are accessing the Dr Nicole Cain, Health for Life and Company LLC Content from outside the United States, you are solely responsible for complying with all local laws and jurisdictions.
24. SOFTWARE DOWNLOADS AND EXPORT CONTROLS
Software, hardware, and related technologies that may be available in connection with the Dr Nicole Cain, Health for Life and Company LLC Content are subject to United States export controls. No software or related technologies may be downloaded from the Site, or otherwise exported or re-exported, in violation of United States export laws.
Dr Nicole Cain, Health for Life and Company LLC, at its sole option, may terminate, block or suspend your access to the Dr Nicole Cain, Health for Life and Company LLC Content and these Terms at any time without notice if you breach any provision of these Terms. In the event of termination, those Sections in these Terms which provide for continuing obligations on your part shall survive indefinitely.
Both you and Dr Nicole Cain, Health for Life and Company LLC agree that no partnership, agency, joint venture, or employment relationship is formed between you and us by your use of the Dr Nicole Cain, Health for Life and Company LLC Content and neither you nor Dr Nicole Cain, Health for Life and Company LLC have the power or the authority to obligate or bind the other.
These Terms set forth the entire agreement between you and Dr Nicole Cain, Health for Life and Company LLC pertaining to your use of the Dr Nicole Cain, Health for Life and Company LLC Content. If any provision of these Terms is held invalid or unenforceable, such provision shall be revised to the extent necessary to cure the invalidity and the remainder of these Terms shall continue in full force and effect. Our failure to exercise any right or provision of these Terms shall not constitute a waiver of such right or provision.
27. ADDITIONAL MISCELLANEOUS
If a customer who buys the on-demand / evergreen course requests a refund and our company (Health for Life and Company LLC) determines that they meet the criteria for a refund. The company will refund the customer. This refund will include the funds paid to the affiliate. In that case, the refund will be subtracted from future sales that the affiliate makes or, ideally, it will be subtracted from the affiliate funds before the funds are paid to said affiliate.
29. Payments (Commission as described in this contract)
- Payments to affiliates will be made quarterly through PayPal during the final weeks of January, April, July, and October each year. Sales may be paid out earlier depending on the discretion of Health for Life and Company LLC.
- Sales completed within the three month quarter will reflect in the following month’s payment.
- Affiliates must make a minimum of 2 course sales before commissions are paid out.
- We require receiving payments using paypal as it is the most secure and efficient method of payment available through KARTRA.
- If you sign up for PayPal, you'll be paid instantly by customers that complete checkout with PayPal. If a customer transaction is refunded, then we may need to request their payment be returned. (Either this, or we just don't have the automated PayPal payments. Or we add a note about the refund amount being deducted from the next affiliate payment.)
Questions about this Affiliate Agreement? Email us at Hi@drnicolecain.com
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