Terms & Conditions
Affiliate Program Operating Agreement, this Affiliate Program Operating Agreement (the Agreement) is made and entered into by and between Apothecary Herbs Inc. (Apothecary Herbs Inc. or Apothecary Herbs or we), and you, (you or Affiliate) the party submitting an application to become an Apothecary Herbs affiliate. The terms and conditions contained in this Agreement apply to your participation with www.thepowerherbs.com and or www.apothecaryherbs.com (Affiliate Program). By submitting an application or participating in an Offer, you expressly consent to all the terms, supplement terms and conditions of this Agreement.
Enrollment in the Affiliate Program
1. You must submit an Affiliate Program application from our website. You must accurately and truthfully complete the application to become an affiliate (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Affiliate Program, generally within three (3) business days. We may accept or reject your application at our sole discretion for any reason.
Obligations of the Parties
2. Subject to our acceptance of you as an affiliate and your continued compliance with the terms and conditions of this Agreement, Apothecary Herbs aggress as follows:
I. We may make available to you via the Affiliate Program graphic and or textual links to the Program Web Site and/or other creative materials (collectively, the Links) which you may display on web sites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in online advertisements (collectively, Media). The Links will serve to identify you as a member of our Affiliate Program and will establish a link from your Media to the Program Web Site. During enrollment in the affiliate program you are prohibited from unauthorized use of our trademarks, service marks, trade names and or any copyrighted material outside the restrictions of this agreement. Modification of icons, buttons, banners, graphic files or any content made available to you is prohibited. Any advertising material provided to you for affiliate proposes, which bears our logo, trademarks or copyright notices shall not be removed or altered. Apothecary Herbs extends a sublicense to approved affiliates a revocable, nontransferable, royalty free use in the United States of America to display and link pointed to the Apothecary Herbs website.
II. We will pay Affiliate for each Qualified Action (the Commission) on product sales only. We do not pay for visits, click-through visitation or lead generation. A Qualified Action means an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action within the time period allowed by Apothecary Herbs and (v) is not later determined by Apothecary Herbs to be fraudulent, incomplete, unqualified or a duplicate. If the customers basket referred by the affiliate times-out or expires, or if the customer deletes their cookies and then completes a purchase in the Apothecary Herbs store, the affiliate commission will not be credited to the affiliates account.
III. We will pay you any Commissions earned monthly, provided that your commission is greater than $50. Accounts with a balance of less than $50 will roll over to the next month, and will continue to roll over monthly until $50 is reached. We reserve the right to charge back to your account any previously paid Qualified Actions that are later determined to have not met the qualifing requirements or if merchandise is returned. Returned merchandise will generate a charge back on the commission. Affiliate accounts with no activity for six (6) months or longer will be cancelled and deleted from the platform. Commission payments may be paid via check, money order or PayPal.
IV. Payment for Commissions is dependent upon Client or Clients Merchant provider provides funds to Apothecary Herbs, and therefore, you agree that Apothecary Herbs shall only be liable to you for Commissions to the extent that Apothecary Herbs has received such funds from the Clients. You hereby release Apothecary Herbs from any claim for Commissions if Apothecary Herbs has not received such funds from the Clients.
V. Apothecary Herbs shall automatically generate an invoice on behalf of Affiliate for all Commissions payable under this Agreement and shall remit payment based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by Apothecary Herbs in its sole discretion. In the event that Affiliate disputes in good faith any portion of an invoice, Affiliate must submit that dispute to Apothecary Herbs in writing and in sufficient detail within thirty (30) days of the date on the invoice. If Affiliate does not dispute the invoice as set forth herein, then Affiliate agrees that it irrevocably waives any claims based upon that invoice. In the event that Affiliate is also tracking Qualified Actions and Affiliate claims a discrepancy, Affiliate must provide Apothecary Herbs with Affiliates reports within three (3) days after the 30th day of that calendar month, and if Apothecary Herbs and Affiliates reported statistics vary by more than 10% and Apothecary Herbs reasonably determines that Affiliate has used generally accepted industry methods to track Qualified Actions, then Apothecary Herbs and Affiliate agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation then Apothecary Herbs numbers shall govern.
VI. If Affiliate has an outstanding balance due to Apothecary Herbs under this Agreement or any other agreement between the Affiliate and Apothecary Herbs, whether or not related to the Affiliate Program, Affiliate agrees that Apothecary Herbs may offset any such amounts due to Apothecary Herbs from amounts payable to Affiliate under this agreement.
VII. FRAUD: Apothecary Herbs is entitled to terminate and or suspend the Affiliate from the Affiliate Program at any time, giving reasonable notice where possible. In the event of Affiliate fraud or suspected criminal activity Apothecary Herbs is entitled to terminate and or suspend the Affiliate from their Program without any notice.
Affiliate also agrees to:
I. Have sole responsibility for the development, operation and maintenance of, and all content on or linked to, your Media.
II. Ensure that all materials posted on your Media or otherwise used in connection with the Affiliate Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that Apothecary Herbs informs you that it considers objectionable (collectively, Objectionable Content).
III. Not make any representations, warranties or other statements concerning Apothecary Herbs or Client or any of their respective products or services, except as expressly authorized herein.
IV. Make sure that your Media does not copy or resemble the look and feel of the Program Web Site or create the impression that your Media is endorsed by Apothecary Herbs or Clients or a part of the Program Web Site, without prior written permission from Apothecary Herbs Inc.
V. Comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) law, rules and regulations as they relate to your business, your Media or your use of the Links.
VI. Comply with the terms, conditions, guidelines and policies of any third party services used by Affiliate in connection with the Affiliate Program, including but not limited to, email providers, social networking services and ad networks.
VIII. Always prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by Apothecary Herbs or Client, or as required by applicable laws regarding such Offers.
IX. Make sure to not place Apothecary Herbs ads on any online auction platform (i.e. eBay, Amazon, etc.). Affiliates are prohibited from using any Apothecary Herbs product images on Amazon or eBay or any such-like platforms.
The following additional program-specific terms shall apply to any promotional programs set forth below:
1. Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards or sites such as Facebook or Myspace unless otherwise agreed by Apothecary Herbs in writing. Any pop-ups under used for the Affiliate Program shall be clearly identified as Affiliate served in the title bar of the window and any client-side ad serving software used by Affiliate shall only have been installed on an end-users computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-English end user license agreement and the software be easily removed according to generally accepted methods.
2. Affiliate Network Campaigns. For all Affiliate's that maintain their own affiliate networks, Affiliate agrees to place the Links in its affiliate network (the Network) for access and use by those affiliates in Affiliate's Network (each a Third Party Affiliate). Affiliate agrees that it will expressly forbid any Third Party Affiliate to modify the Links in any way. Affiliate agrees to maintain its Network according to the highest industry standards. Affiliate shall not permit any party to be a Third Party Affiliate whose web site or business model involves content containing Objectionable Content. All Third Party Affiliates must be in good standing with Affiliate. Affiliate must require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. Affiliate shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Affiliate with respect to the Links, Affiliate shall promptly disclose to Apothecary Herbs the identity and contact information for such Third Party Affiliate. Affiliate shall promptly remove any Third Party Affiliate from the Affiliate Program and terminate their access to future Offers of Apothecary Herbs in the Network. Unless Apothecary Herbs has been provided with all truthful and complete contact information for a Third Party Affiliate and such Third Party Affiliate has affirmatively accepted this Agreement as recorded by Apothecary Herbs, Affiliate shall remain liable for all acts or omissions of any Third Party Affiliate.
3. Except as otherwise provided in this Agreement or with the consent of Apothecary Herbs, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Affiliate shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.
Limited License & Intellectual Property
4. We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Program Web Site.
You may not alter, modify, manipulate or create derivative works of the Links or any Apothecary Herbs graphics, creative, copy or other materials owned by, or licensed to, Apothecary Herbs in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Affiliate Program. We may revoke your sub-license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of Apothecary Herbs trademarks, service marks, copyrights, patents or trade secrets. You agree that Apothecary Herbs may use any suggestion, comment or recommendation, endorsement from you without compensation. All rights not expressly granted in this Agreement are reserved by Apothecary Herbs.
5. This Agreement shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time and immediately remove all provided links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all Apothecary Herbs or Client intellectual property, and will cease representing yourself as an Apothecary Herbs or Client affiliate for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
6. In addition to any other rights and remedies available to us under this Agreement Apothecary Herbs reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if (i) Apothecary Herbs determines that you have violated this Agreement, (ii) Apothecary Herbs receives any complaints about your participation in the Affiliate Program which Apothecary Herbs reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, Apothecary Herbs reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
7. The Affiliate must not in any way generate or contribute to generating Artificial Traffic to linked websites. The Affiliate should not use any means of artificial traffic to gain sales commissions, this includes the use of software or products that alter fellow Affiliates link codes or intercept click through traffic from the affiliate to the merchants site. Any violation will result in prompt removal from the Affiliate Program without notice.
8. You must strictly comply with the federal CAN-SPAM Act of 2003 (the Act). Under no circumstances shall Affiliates send commercial electronic mail messages as defined in the Federal spam law with respect to Apothecary Herbs Affiliate Program. For clarification, this does not prohibit Affiliates from sending transactional or relationship messages as defined by the Act. Apothecary Herbs reserves the right to collect, withhold, or cancel any and all compensation related to the content Affiliates send via commercial electronic mail messages. Affiliates are prohibited from marketing their links to emails belonging to residents or businesses in Canada.
9. Affiliates agree that tracking tags or tools provided to them providing valuable information vital to the success of the Affiliate Program with information that helps make sure transactions generated by Affiliate are properly attributed to Affiliate for payout calculations. Thus, each of these assets must be used in their intended manners and Affiliates agree not to corrupt, modify or disable the tracking functionality provided to them related to the Affiliate Program.
10. You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using steal ware, cookie-stuffing and other deceptive acts or click-fraud. Apothecary Herbs shall make all determinations about fraudulent activity in its sole discretion.
11. Keywords, pay per click advertising, domain names, trademarks involving Apothecary Herbs or any of its property rights in any variation are prohibited. Affiliates shall not purchase search engine keywords or domain names that use Apothecary Herbs trademark or any of its property rights in any variations including misspellings thereof. Affiliates shall not purchase and use such as described herein section ten (10) for use in any search engine, portal, sponsored advertising service or other search or referral service. Specifically, this policy prohibits Affiliates from bidding on Apothecary Herbs trademark, Apothecary Herbs or Apothecary Herbs Inc., and any keyword string that includes this term. For example, Apothecary Herbs supplements, Apothecary Herbs vitamins, Apothecary Herbs whole-food, Apothecary Herbs coupons, Apothecary Herbs promotions, etc. Bidding on variations of Apothecary Herbs or any of its trademarks, tag lines or property rights: for example Apothecary Herbs, ApothecaryHerbs.com www.ApothecaryHerbs.com, ApothecaryHerb.com, Apothecary-Herbs.com, Apothecary-Herb.com, etc. Purchasing any domain names based on Apothecary Herbs or www.thepowerherbs.com trademarks or variations thereof are prohibited: for example thepowerofherbs.com, powerherbs.com, powerfulherbs.com, etc. These prohibited acts also include any reference to Herb Talk Live radio show also owned by Apothecary Herbs. Purchasing pay per click advertising containing Apothecary Herbs or The Power Herbs trademarks or variations thereof are prohibited. Violations of section ten (10) includes purchasing or attempting to purchase keywords and domain names as cited above. Violation of this agreement will result in: withholding all compensation otherwise payable to Affiliate beginning with the date on which Affiliate violated agreement and trademark terms. Removal of the Affiliate from the Apothecary Herbs Affiliate Program. Contacting the search engine in which Affiliate ad was found to ask that these ads be removed immediately and permanently. And without limiting other remedies available to Apothecary Herbs.
Representations & Warranties
12. You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you are over the age of eighteen (18) and have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, Apothecary Herbs represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to Apothecary Herbs own business operations or Apothecary Herbs proprietary products or services.
13. In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Affiliate Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, Apothecary Herbs may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from Apothecary Herbs to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.
14. You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliate Program and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Affiliate Program.
15. Affiliate hereby agrees to indemnify, defend and hold harmless Apothecary Herbs and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorney fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Affiliate herein, (ii) any misuse by Affiliate, or by a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Links, Offers or Apothecary Herbs or Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links).
Apothecary Herbs hereby agrees to indemnify, defend and hold harmless Affiliate and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on a claim that Apothecary Herbs is not authorized to provide you with the Links.
16. THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE AS IS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, APOTHECARY HERBS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. APOTHECARY HERBS DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. APOTHECARY HERBS EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. APOTHECARY HERBS DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
Limitation of Liability
17. IN NO EVENT SHALL APOTHECARY HERBS BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, INTERRUPTIONS, ACCESSIBILITY TO THE WEB SITE, CORRUPTION OR LOSS OF INFORMATION OR DATA, VIRUSES OR OTHER HARMFUL COMPONENTS, LOSS COMMISSIONS, LOSS OF REPUTATION OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF APOTHECARY HERBS. IN NO EVENT WILL APOTHECARY HERBS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY OR WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, LOSS CAUSED BY ANY THIRD PARTY DELETING, REMOVING, DEACTIVATING OR TAMPERING WITH THE AFFILIATE TRACKING OR OTHER INDIRECT OR CONSEQUENTIAL LOSS WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT OR WHATSOEVER, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT APOTHECARY HERBS HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. APOTHECARY HERBS CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY APOTHECARY HERBS IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
Governing Law & Miscellaneous
18. Affiliate shall be responsible for the payment of all attorney fees and expenses incurred by Apothecary Herbs to enforce the terms of this Agreement. This Agreement contains the entire agreement between Apothecary Herbs and Affiliate with respect to the subject matter hereof, and supersedes all prior and or contemporaneous agreements or understandings, written or oral. Affiliate agrees that Apothecary Herbs shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether Apothecary Herbs clicks through or otherwise indicates its acceptance thereof. Affiliate may not assign all or any part of this Agreement without Apothecary Herbs prior written consent. Apothecary Herbs may assign this Agreement at any time with notice to Affiliate. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of Section 3, 4, 6, 7, 8, 12-15 and any accrued payment obligations shall survive the termination of this Agreement. Except as set forth in the "Modifications" section above, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.
By submitting and application to Affiliate Program, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to the Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents or affirms that they have the legal capacity and authority to bind such business entity to this Agreement.