Please read this Agreement carefully before registering and using the Nuzest USA service as an Affiliate. By signing up for the Nuzest USA Brand Ambassador/Affiliate Program (the “Program”), you indicate your acceptance of this Agreement and its terms and conditions.
1. Overview of Affiliate Program. This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in the Program. The Purpose of the Program is to allow you to promote Nuzest products and refer customers to purchase them on our website (the “Purpose”). Nuzest USA operates the website located at http://www.nuzest-usa.com (“Website”). Nuzest USA offers the Program, through which approved Affiliates are granted a limited, non-exclusive, revocable right:
1.1. To advertise and promote Nuzest USA’s products and Website in compliance with this Agreement;
1.2. To circulate and to post an approved hyper-link (“Link”) to the Website; and
1.3. To direct visitors to the Website (through specific URL(s)) designated by the Company from time to time (“Destination Site”).
2. Application Process; Affiliate Obligations
2.1 To begin the enrollment process, you must complete and submit the online application at the [https://nuzest-america.refersion.com/affiliate/registration]. Applications will be approved or rejected, based on our sole and absolute discretion. We may cancel your application if we determine that your website is unsuitable for our Program, including, but not limited to, if your website:
2.1.1 Promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality disability, sexual orientation, or age, or other illegal activities;
2.1.2. Incorporates any materials that infringe or assist others to infringe on any copyright, patent, trademark, trade secret, or other intellectual property rights or to violate the law;
2.1.3. Is otherwise in any way unlawful, including, but not limited to, fraudulent, dishonest, deceptive, misleading, unsubstantiated, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable to us in our sole and absolute discretion;
2.1.4. Contains software downloads that potentially enable the ability to divert commissions from other affiliates or otherwise negatively impacts other affiliates that are participating in the Program; or
2.1.5. Is operated, explicitly or impliedly in any manner, in a way which resembles our website or in a manner which leads customers to believe you are the source of Nuzest USA products and services.
2.2. As a member of the Program, you will have access to an account manager (the “Affiliate Account Manager”). Within your account, you will be able to review our Program’s details, download HTML code (that provides for Links to web pages within the Website) and banner creatives, browse and get tracking codes for our coupons and deals. In order for us to accurately keep track of all guest visits from your website to ours, you must use the HTML code that we provide for each banner, text Link, or other affiliate Link we provide you with.
2.3. Nuzest USA reserves the right, at any time, to review the placement of the Link(s) and require that you change the placement, in Nuzest USA’s sole discretion.
2.4. The maintenance and updating of your website is your responsibility and Nuzest USA assumes no responsibility for any maintenance or liability associated with your website. We may monitor your website as we feel necessary to make sure that it is up-to-date and to notify you of any changes that may enhance performance.
2.5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your website, and Nuzest USA assumes no responsibility for any liability associated with your website and any noncompliance with applicable laws and regulations. We will not be responsible (and you will be solely responsible) if you use any third-party copyrighted material or other intellectual property in violation of the law or any third party’s rights.
3. Term; Termination. This Agreement will begin upon our acceptance of your Affiliate application and will continue until terminated by either party. Either party may terminate this Agreement and your participation in the Program at any time and for any reason by providing written notice to the other party. Upon termination, Nuzest USA will pay any commissions owed at the beginning of the following calendar quarter; however, Nuzest USA will have no obligation to pay any commissions due if it is determined that such commissions due were a result of fraudulent sales activities. Any Affiliate account that has been inactive (for example, no website traffic or commissions) for a period of 60 days will be automatically terminated.
4. Modification. We may modify any of the terms and conditions in this Agreement at any time. You will be notified by email of any amendments to this Agreement. If any modification is unacceptable to you, you may terminate your participation in the Program. Your continued participation in the Program following an amendment to this Agreement will be considered your acceptance of the new terms.
5. Commissions; Payment Schedule
5.1. You will receive payment each month through PayPal for commissions incurred in the previous month. Subject to your compliance with this Agreement, you shall earn and be paid Nuzest USA’s standard affiliate commission fee according to the payment terms in this Section 5. You will only be entitled to a commission if a visitor completes a purchase subject to the terms and conditions on the Destination Site after having last arrived at the Destination Site through a Link that you posted.
5.2. Payments will be begin once your full month’s commission has exceeded USD $100 (the “Minimum Commission”). Any monthly commissions under the Minimum Commission will roll over into the following month’s commissions and will be paid out on or around the fifth (5th) day of the following month if the Minimum Commission threshold is met. We will in good faith use reasonably commercial efforts to pay you all amounts due, however, if you do not accept or process a payment within ninety (90) days (including, without limitation, if you do not deposit a check that has been sent to you) then such payment will be void and you agree that it will no longer be owed to you. Unless otherwise agreed by us in writing, any customer refunds will be calculated in the month that such refunds occur and will be deducted from any current or future amount otherwise due or payable to you. With respect to customers who provide recurring revenue to Nuzest USA in connection with any recurring billing program or otherwise (“Recurring Customers”), you shall no longer receive any commissions with respect to such Recurring Customers upon termination of this Agreement (except with respect to commissions from such customers earned through the date of termination of this Agreement).
5.3. Nuzest USA shall not be liable or responsible for failures for any reason to track customers, including, without limitation, a customer's deletion of a required cookie or failures in tracking technology. You will receive a referral fee only if the customer purchases product from the Website within ninety (90) days after clicking a Link.
5.4. Individuals visiting the Website, regardless of whether such individuals place orders, are the exclusive customers of the Company, regardless of the manner in which such person arrived at the Website, and the policies, procedures and preferences of the Company apply to those individuals.
5.5. We reserve the right to refuse, delete or ignore any transaction, or to correct or reverse any amount owed to you, as the case may be, if, in our reasonable discretion, (i) you or the customer have acted in a fraudulent, dishonest, or offensive manner; (ii) we have overpaid you; or (iii) you are obligated to indemnify Nuzest USA for actual or anticipated losses.
Other than the payment of the commission, you are not entitled to any additional business, commission, or compensation derived by or through a Destination Site. You are not entitled to any reimbursement for any costs or expenses that you may incur in connection with this Agreement.
6. Access to Affiliate Account. You will create a password so that you may enter Refersion.com’s secure affiliate account interface. Through your Refersion account, you will be able to access and review your commission reports.
7. Prohibited Activities and Restrictions on Promotions; Compliance with Privacy Laws
7.1. Promoting any Nuzest USA products on your own websites may be perceived by customers as an affiliation with, endorsement by, or other joint advertising campaign with Nuzest USA. Because of this perception, some forms of advertising are always prohibited by Nuzest USA. Generally prohibited forms of advertising include, but are not limited to, engaging in any “spamming” activities (as defined in Section 7.2 hereunder), the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you are strictly prohibited from advertising in any way that conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote Nuzest USA so long as the recipient is already a customer or subscriber of your services or website, and recipients have the option to remove themselves from future mailings. At all times, you must clearly represent yourself and your web sites as independent from Nuzest USA. If it comes to our attention that you are engaging in any other prohibited advertising activities, as determined in our sole discretion, we will terminate this Agreement and your participation in the Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
7.2. Nuzest USA strictly prohibits its Affiliates from using spam e-mail and other forms of Internet abuse (including forum spam and blog spam) to seek sales. Spam is defined as including, but not limited to, the following:
7.2.1. Electronic mail messages addressed to a recipient with whom Affiliate does not have an existing business or personal relationship or is not sent at the request of, or with the express consent of, the recipient through an opt in subscription;
7.2.2. Messages posted to forums and message boards or chat rooms that are off-topic (unrelated to the topic of
discussion), cross-posted to unrelated newsgroups, posted in excessive volume, or posted against forum/message board rules;
7.2.3. Content posted on free blog websites for the sole purpose of keyword spamming, or comments posted to legitimate blogs that violate the comment policy of the blog owner; and
7.2.4 Certain off-line activities that, while not considered Spam, are similar in nature, including distributing flyers or leaflets on private property or where prohibited by applicable rules, regulations, or laws.
7.3. You shall fulfill the obligations under this Agreement in compliance with all laws and regulations, including without limitation the CAN-SPAM Act of 2003 and all state anti-spam laws including California Business & Professions Code Section 17529.5, California Civil Code Section 1798.83, the Federal Trade Commission Act, the California Online Privacy Protection Act, the Children’s Online Privacy Protection Act, and any and all other federal, state, and local consumer protection laws, regulations, and standards.
7.4. You shall ensure that each email message includes (i) clear and conspicuous notice of the recipient’s right to opt-out of receiving future commercial messages from you; and (ii) a functional electronic mechanism that the recipient can use to make such an opt-out request, in compliance with the requirements of the CAN-SPAM Act, Federal Trade Commission regulations and guidelines implementing the CAN-SPAM Act, and any and all other federal, state, and local consumer protection laws, regulations, and standards. You shall ensure that the “subject” and “from” lines used in any email communications are truthful and non-misleading and do not otherwise violate the CAN-SPAM Act or any other federal and state consumer protection laws and regulations (including but not limited to California Business & Professions Code § 17529) and do not infringe on the intellectual property rights of any third party.
7.5. You shall not advertise or promote advertisements that are misleading deceptive, untruthful, unsubstantiated, or otherwise fail to comply with applicable national, federal and state consumer protection laws, regulations, and guidelines and/or that claim inflated discounts or are otherwise in violation of any applicable law. You may only advertise or promote advertisements that state the actual discount, if any, that a visitor may derive by clicking on a Link. For the avoidance of doubt, you shall not use any discounts or promotional codes without the prior written consent of Nuzest USA.
7.6. You shall not create webpages, social media pages or accounts that falsely represent you as the creator or owner of Nuzest USA or any Nuzest USA products. You shall make it clear that any such page is an advertisement and that you are being compensated for any sales generated from it.
7.7. You shall not use any negative or scare marketing tactic in any advertisement including, but not limited to, negative words or titles in any product reviews or video advertisements. This shall include, but is not limited to, any use of the words “scam,” “exposed,” or any variation thereof.
7.8. You shall not use “www.nuzest-usa.com” or any variation thereof as the domain name or URL in any search engine or like marketing campaign without the prior written consent of Nuzest USA.
7.9. Your promotions shall not include any claim regarding the efficacy of any Nuzest USA product or services, or any ingredients contained therein, unless you (i) possess a reasonable basis for such claim and (ii) have received prior express written approval from us to make such claim. You shall not mention any type of disease in your marketing and may NOT imply that any Nuzest USA product cures or treats any illness or other health condition.
7.10. You shall not directly send customers to a checkout page. Your advertisements shall direct customers to the proper links to the landing pages on the Website.
8. Intellectual Property
8.1. You have no right to and shall not use the trademarks or other intellectual property including, without limitation, copyrights, patents, or trade secrets, of Nuzest USA without our prior written consent. You shall not modify our trademarks in any manner or display our trademarks in any manner that implies or suggests our endorsement of your business or your website. You shall not use our trademarks in a manner that disparages Nuzest USA or our products or that, in our reasonable judgment, damages or diminishes our trademarks and the good will associated therewith.
8.2. You shall not copy, transcribe, paraphrase, reproduce or otherwise use in any format any video or part of video found on the Website. You shall not use any before or after photographs found on the Website or found within any videos on the Website.
8.3. You agree not to bid on any keyword, term, or word in Pay-Per-Click Search Engines (PPCSE's) that contains (i) any trademark, whether or not registered, of Nuzest USA or (ii) any keyword, term, or word that is a variation of any such trademark or any other keyword, term or word that is likely to cause confusion regarding your affiliation with the Company. If you do so you will be considered trademark violator and will be banned from the Program. We reserve the right to expel any trademark violator from our Program without prior notice, and on the first occurrence of such PPCSE bidding behavior. You shall not advertise prices below the standard prices offered by Nuzest USA or offer any kind of bonuses or incentives for purchasing through your Affiliate link. You shall not use any “fat-finger” or “typo-squatter” domain name to redirect Internet traffic to any Nuzest USA website or URL or your website without prior written consent of Nuzest USA. A fat-finger or typo-squatter domain name is a domain name that amounts to a misspelling of any registered or unregistered trademark of Nuzest USA. You shall not place the word “Nuzest” or any variation of or similar spelling of the words “Nuzest” in your top-level domain name. The word “Nuzest” may only be included in your URL provided it is substantially as follows: “mydomain.com/Nuzest.”
8.4. You are not acquiring any ownership of, or any right to use, any of the intellectual property of Nuzest USA, including, without limitation, our copyrights, patents, trademarks, or trade secrets, except to the limited extent expressly permitted by this Agreement, all of which rights are reserved by, and remain with, Nuzest USA. For the avoidance of doubt, any and all images found on the Website are the property of Nuzest USA and are protected under US copyright laws. Such images may only be used by affiliates in the promotion of Nuzest USA products subject to any restrictions in this Agreement. Any and all other uses are strictly prohibited.
8.5. You agree not to infringe on the intellectual property rights of any person, including, without limitation, any copyright, patent, trademark, or trade secret rights, and you will be solely liability for any such infringement.
9. Grant of License. Subject to Section 1.2 herein, we grant to you a non-exclusive, non-transferable, freely revocable right to (i) access our Website through HTML 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 (collectively, the "Licensed Materials") that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are participating in the Program. You agree that all uses of the Licensed Materials will be on behalf of Nuzest USA, and the goodwill associated therewith will inure to the sole benefit of Nuzest USA.
You agree not to use our proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays Nuzest USA in a negative light. We reserve all rights in the proprietary materials covered by this license. For the avoidance of doubt, Nuzest USA retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the Affiliate other than the limited license granted herein.
10. Disclaimer; Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NUZEST USA MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AS TO THE INFORMATION, PERFORMANCE, QUALITY, RESULTS, SERVICES, AND TECHNOLOGY IN ANY WAY RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE UNDERLYING PRODUCTS SOLD BY OR THROUGH NUZEST USA, WWW.NUZEST-USA.COM, OR ANY AFFILIATED ENTITY OR WEBSITE. NUZEST USA MAKES NO REPRESENTATION THAT THE OPERATION OF OUR WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE AND SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY SUCH INTERRUPTIONS OR ERRORS.
11. Representations and Warranties. You represent and warrant that:
11.1. 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;
11.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this
Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party; and
11.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
12. Limitations of Liability. NUZEST USA WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL NUZEST USA’S CUMULATIVELY LIABILE TO YOU WITH RESPECT TO ANY SUBJECT MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT DURING THE PRIOR SIX MONTHS.
13. Indemnification. You hereby agree to indemnify and hold harmless Nuzest USA, 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") arising out of (i) any claim that our use of the your trademark(s) infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation or breach of a covenant and agreement made by you under this Agreement, (iii) any claim related to your website, including, without limitation, content used therein, and (iv) your noncompliance with applicable laws and regulations.
14. Confidentiality. Affiliate may be given access to, or may become acquainted with, Confidential Information (as defined below) of Nuzest USA. Affiliate shall safeguard Nuzest USA’s Confidential Information and will not disclose, reproduce, distribute, or otherwise reveal it to any third party except as may be required under this Agreement or with our written consent or as required by applicable law. Consultant’s duty to hold in confidence all Confidential Information shall remain in full force and effect following termination of this Agreement for any or no reason. “Confidential Information” shall include, in addition to any material marked “Confidential,” (a) all non-public information necessary for the performance of the affiliate’s services disclosed in electronic, graphic, written, photographic, in-person, telephone or video conference meeting, recorded, or any other form; (b) the existence of this Agreement and its terms; and (c) any confidential or proprietary information or trade secret, including, but not limited to, copyrights, know-how, show-how, technical, operating, financial, business information and materials, source codes, software programs, and applications in various stages of development, new materials research, logos, designs, graphics, writings, or other materials, algorithms, formulae, works of authorship, techniques, discoveries, documentation, models and systems, sales and pricing plans, proposals, price lists, pricing policies, pricing algorithms, vendor, customer and supplier lists, expansion, marketing financial, personnel and other business information.
15. Relationship of Parties. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Nuzest USA. You have no authority to make or accept any offers or representations on our behalf, and you will not hold yourself out as anything other than an independent contractor of Nuzest USA.
16. Assignment. You shall not assign, transfer, or delegate your obligations hereunder, either in whole or in part, without the prior written consent of Nuzest USA, including, without limitation, transferring your affiliate interest, affiliate number and/or affiliate identification. Any attempted assignment, transfer, or delegation in violation of this section will be void. We may assign this Agreement at any time with or without notice.
17. Governing Law and Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington without regard to the conflicts of laws and principles thereof. The exclusive forum for any actions or disputes related to or arising out of this Agreement shall be in the state courts in Washington and, to the extent that federal courts have jurisdiction, in the federal courts in Washington. You consent to such personal jurisdiction and venue.
18. Entire Agreement. This Agreement represents the entire agreement between the Parties and shall supersede all prior agreements and communications of and between the Parties, oral or written.
19. Severability. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this Agreement shall have full force and effect.