Affiliate Program Agreement
This Agreement contains the complete terms
and conditions that apply to an individual's or entity's participation in the
www.TheFitnessStore.com's Affiliate Program (the "Program"). As used in this Agreement, "we", "us", or "our" means www.TheFitnessStore.com.
The or any of our affiliate companies, as the case may
be, and "you" means the applicant. "TheFitnessStore.com Site"
means the site that has its primary home page identified by the URL www.TheFitnessStore.com, and "site" means a World Wide Web site. "Your site"
means any site that you will link to the www.TheFitnessStore.com Site.
in the Program
To begin the enrollment process, you will submit a complete
Program application via the www.TheFitnessStore.com Site. We may reject your application
if we determine (in our sole discretion) that your site is unsuitable for the
Program. Unsuitable sites include those that:
promote sexually explicit
promote discrimination based on race, sex,
religion, nationality, disability, sexual orientation, or age
otherwise violate intellectual property rights.
in the Program you agree that you will not engage in any such activities. If we
reject your application, you are welcome to reapply to the Program at any time.
You should also note that if we accept your application and your site is thereafter
determined (in our sole discretion) to be unsuitable for the Program, we may terminate
Links on Your Site
Once you have been notified
that your site has been accepted into the Program, you may provide on your site
one or more links to the www.TheFitnessStore.com Site.
We will provide you with
guidelines to use in linking to the www.TheFitnessStore.com Site. To permit accurate
tracking, reporting, and referral fee accrual, we will provide you with special
"tagged" link formats ("Special Links") to be used in all
links between your site and the www.TheFitnessStore.com Site.
You must ensure
that each of the links between your site and the www.TheFitnessStore.com Site properly
utilizes such special link formats. You will earn referral fees only with respect
to activity on the www.TheFitnessStore.com Site occurring directly through Special
Links; we will not be liable to you with respect to any failure by you to use
Special 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.
acknowledge that, by participating in the Affiliate Program and placing Special
Links within your site, we may receive information from or about visitors to your
site or communications between your site and those visitors. Your participation
in the Program constitutes your specific and unconditional consent to and authorization
for our access to, receipt, storage, use, and disclosure of any and all such information,
consistent with the policies and procedures set forth in the Privacy Notice on
the www.TheFitnessStore.com Site.
We will process
Product orders placed by customers who follow Special Links from your site to
the www.TheFitnessStore.com Site. We reserve the right to reject orders that do not
comply with any requirements that we may establish periodically. We will be responsible
for all aspects of order processing and fulfillment. Among other things, we will
prepare order forms, process payments, cancellations, and returns, and handle
customer service. We will track sales made to customers who purchase Products
by using Special Links from your site to the www.TheFitnessStore.com Site and will
make available to you reports summarizing this sales activity. The form, content,
and frequency of the reports may vary from time to time in our discretion.
We will pay you (in accordance with Sections 5 and 6 below) referral
fees on certain Product sales to third parties. For a Product sale to be eligible
to earn a referral fee, the customer must click-through a Special Link from your
site to the www.TheFitnessStore.com Site, and add the Product to his or her shopping
cart during that session. The session ends upon one of the following events: (a)
24 hours elapses from the customer's initial click-through, (b) the customer orders
the Product, or (c) the customer follows a third party's Special Link. We will
only pay referral fees on eligible Products after order, payment and shipping
We will not, however, pay referral fees on any Products
that are added to a customer's Shopping Cart after the customer has reentered
the www.TheFitnessStore.com Site (other than through a Special Link from your site),
as determined by us, even if the customer previously followed a link from your
site to the www.TheFitnessStore.com Site. In addition, gift certificates are not eligible
to earn referral fees.
You may not purchase products during sessions initiated
through the links on your site for your own use, for resale or commercial use
of any kind. This includes orders for customers or on behalf of customers or orders
for products to be used by you or your friends, relatives, or associates in any
manner. Such purchases may result (in our sole discretion) in the withholding
of referral fees and/or the termination of this Agreement.
For Products sold during customer sessions initiated through
Special Links on your site, you will earn (subject to the other terms of this
Agreement) referral fees in accordance with the "Referral Fee Structure"
Referral Fee Structure
For Products sold during
sessions initiated through Special Links on your site, you will earn (subject
to the other terms of the Agreement):
3% Paid by check quarterly
Referral Fee Payment
We will pay you referral
fees on a quarterly basis.
Responsibility for Your Site
You will be
solely responsible for the development, operation, and maintenance of your site
and for all materials and links that appear on your site.
Term of the
The term of this Agreement will begin upon our acceptance of
your 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 the www.TheFitnessStore.com Site, and all of our trademarks,
trade dress, and logos, and all other materials provided by or on behalf of us
to you pursuant hereto or in connection with the Program.
You are eligible
to earn referral fees only on sales of Products that occur during the term, and
referral fees earned through the date of termination will remain payable only
if the related orders are not canceled or returned. We may withhold your final
payment for a reasonable time to ensure that the correct amount is paid.
may modify any of the terms and conditions contained in this Agreement, at any
time and in our sole discretion, by posting a change notice or a new agreement
on the www.TheFitnessStore.com Site.
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 OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE www.TheFitnessStore.com SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
You and we 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.
Limitation of Liability
will not be liable for indirect, special, or consequential damages (or any loss
of revenue, profits, or data) arising in connection with this Agreement or the
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 Program
will not exceed the total referral fees paid or payable to you under this Agreement.
We make no express or implied warranties or representations
with respect to the Program or any products sold through the Program (including,
without limitation, warranties of fitness, merchantability, noninfringement, or
any implied warranties arising out of a course of performance, dealing, or trade
usage). In addition, we make no representation that the operation of the www.TheFitnessStore.com Site will be uninterrupted or error-free, and we will not be liable
for the consequences of any interruptions or errors.
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 PROGRAM AND ARE NOT RELYING
ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS
Any dispute relating in any way to this
Agreement (including any actual or alleged breach hereof), any transactions or
activities under this Agreement or your relationship with us or any of our affiliates
shall be submitted to confidential arbitration in Manitowoc, WI,
except that, to the extent you have in any manner violated or threatened to violate
our intellectual property rights, we may seek injunctive or other appropriate
relief in any state or federal court in the state of Wisconsin (and you
consent to non-exclusive jurisdiction and venue in such courts) or any other court
of competent jurisdiction. Arbitration under this agreement shall be conducted
under the rules then prevailing of the American Arbitration Association. The arbitrator's
award shall be binding and may be entered as a judgment in any court of competent
jurisdiction. To the fullest extent permitted by applicable law, no arbitration
under this Agreement shall be joined to an arbitration involving any other party
subject to this Agreement, whether through class arbitration proceedings or otherwise.
Agreement will be governed by the laws of the United States and the state of Wisconsin, 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 be 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.