These Affiliate Program Terms and Conditions (hereinafter “Agreement”) are agreed to by the person or entity (“Affiliate” or “you”) whose name and address appears in the application (“Application”) and Nootrobrain, its parent, subsidiaries, affiliates, officers, directors, employees, agents and assigns (hereinafter “Nootrobrain”) to participate in the Nootrobrain Affiliate Program (the “Program”), available through the Affiliate Program link on www.Nootrobrain.com. As a participant in the Program, and subject to the terms specified herein, Affiliate will receive compensation for promoting the Products or Services, as defined below, of Nootrobrain by using approved advertising messages (including, but not limited to, emails, blogs, web sites, banner ads, text links, radio ads, TV ads, internet ads, phone calls and search engine optimization) (collectively, “Ads”).
Effective Date: Termination.
1. The Effective Date of this Agreement shall be the date that Affiliate electronically submits its Application to participate in the Program, provided that this Agreement shall become null and void if Nootrobrain denies Affiliate’s Application for acceptance into the Program for any reason. Participation in the Program is subject to Nootrobrain’s prior approval. Nootrobrain reserves the right to refuse or revoke acceptance of any Affiliate in the Program at any time, with or without cause. Affiliate is responsible for immediately updating any information provided to Nootrobrain through Affiliate’s Application to ensure that Nootrobrain’s records for Affiliate remain current. Affiliate shall also notify Nootrobrain in writing if Affiliate has ever or becomes the subject of an investigation for non-compliance with laws, whether federal, state, or local or by another country.
2. Nootrobrain may terminate this Agreement and Affiliate’s right to participate in the Program at any time, upon Affiliates failure to comply with the terms and conditions of this Agreement. Termination is effective upon date of notice. As of the date of termination, Affiliate will no longer be eligible to receive compensation from Nootrobrain. Upon termination, Affiliate must discontinue use of all marketing materials provided to Affiliate by Nootrobrain, and/or Nootrobrain will disable any such affiliate links and marketing materials.
Affiliate represents and warrants that it will at all times comply with the requirements listed in this Agreement:
1. Compliance with Laws. Affiliate shall use, display, distribute, and/or transmit the Ads in compliance with all applicable laws, regulations, and guidelines, including without limitation the Federal Trade Commission Act (“FTC Act”), the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”), Federal Trade Commission (“FTC”) regulations and guidelines implementing the FTC Act and the CAN-SPAM Act, the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (“FTC Testimonials Guide”), the National Advertising Division decisions of the Better Business Bureau, and other federal and state consumer protection laws, regulations, and guidelines. If Affiliate is selling Product to countries outside of the United States, then Affiliate represents and warrants to comply with all such applicable laws and regulations.
In addition to compliance with laws, Affiliate Ads shall comply with and adhere solely to Nootrobrain approved advertising creative and methods of sale and marketing. Sales from Ads that violate the terms of this Agreement, laws, or violate Nootrobrain approved creative or sales and marketing methods will not receive compensation under this Agreement. Affiliate agrees to indemnify, defend and hold harmless Nootrobrain from any lawsuits, investigations, claims, or complaints arising from such violation or alleged violation. Nootrobrain shall not be responsible to approve any Ads. Compliance is solely with Affiliate and Affiliate represents and warrants that it shall have legal review of all Ads for all necessary and required compliance. Affiliates represent and warrant that Affiliate shall not use cost-per-action or other affiliate ad networks for the sale of Nootrobrain Products or Services.
2. General Requirements. All Ads created by Affiliate to promote Nootrobrain products and services are subject to the following requirements and restrictions:
a. Ads must not include content that is deceptive, misleading, untruthful, unsubstantiated, or otherwise fails to comply with applicable federal and state consumer protection laws, regulations, and guidelines.
b. Ads must not include any claim regarding the efficacy of any Nootrobrain product or services, or any ingredients contained therein, unless the Affiliate possesses documented, competent and reliable evidence, in writing, to verify the truthfulness and support the factual accuracy of the claim.
c. Ads may not offer points, rewards, cash, prizes, contest entries, or other incentives to consumers in return for their response to any Ad.
d. Ads must be fully functional at all levels, with no “under construction” sites or sections or blank pages.
e. Ads must not spawn process pop-ups or use any downloadable application.
f. Ads must not contain, promote, or have links to profanity, sexually explicit materials, hate material, libelous or defamatory material, degrading material, or material that promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials deemed unsuitable or harmful to the reputation of Nootrobrain, in Nootrobrain’s sole discretion.
g. Ads must not promote, tie to, or reference illegal activities including, without limitation, the promotion of gambling, illegal substances, software piracy, or hacking.
h. Ads must not be labeled as an “official site” or similar designation or include any other designation indicating the Ad is an “official” advertisement or web site of Nootrobrain or its products or services.
i. Ads must not infringe the personal rights, publicity rights, trademarks, copyrights, patent rights, service marks, trade dress, logos, publicity rights, or any other intellectual property right (collectively, “Marks”) of any third party.
j. Ads shall not use personal endorsements or infer endorsements of any person, famous or not, without written approval from such person.
k. Affiliate shall not use false news sites, false blogs, false review pages or similar misleading sites to create buzz or establish ads.
l. Ads must not use the Marks of Advertiser (without Advertiser’s prior written consent) or any other third party (i) within the text, graphics or other content of any Ad; (ii) as a search term, keyword, and/or metatag, including in the title, body, and URL or search engine results; (iii) as a keyword on any search engine; (iv) as a metatag, in keyword stuffing or in other hidden layers on any web site; or (v) to drive organic search results.
m. Ads must not promote activities generally understood as Internet abuse, including but not limited to, the sending of unsolicited bulk electronic mail.
n. Ads must not be a communication to a wireless device by text messaging in any form.
o. Ads must not constitute advertising via facsimile or telemarketing (including, without limitation, by use of prerecorded or artificial voice messages).
p. Ads must not include any “worm,” “virus” or other device that could impair or injure any person, entity, or equipment.
3. Testimonials and Endorsements. As used in this Agreement, an “Endorsement” means any Ad (including but not limited to Affiliate testimonials or endorsements, other consumer testimonials or endorsements, celebrity or expert endorsements, blogs, verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name, logo or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experience of a person or entity other than Nootrobrain. The Affiliate or other person or entity whose opinions, beliefs, findings, or experiences the Endorsement appears to reflect shall be referred to as the “Endorser.” Use of Endorsements is subject to the requirements below. Nootrobrain reserves the right to research, monitor and audit Affiliate’s use of Endorsements, and to determine, in Nootrobrain’ sole discretion, whether Affiliate is in compliance with these requirements. Failure of Nootrobrain to research, monitor, or audit Affiliate’s use of Endorsements shall not relieve Affiliate from compliance with these requirements.
a. Endorsements must reflect the honest opinions, findings, beliefs and/or experience of the Endorser, and may not convey an express or implied representation that would be deceptive if made directly by Nootrobrain.
b. Endorsements may not be presented out of context or reworded so as to distort in a material way the Endorser’s opinion or experience with the Nootrobrain product or service.
c. If the Endorsement represents that the Endorser uses a Nootrobrain product or service, the Endorser must have been a bona fide user of it at the time the Endorsement was given.
d. No Endorsement containing statements reflecting the objective experience of an individual or group on a central or key attribute of a Nootrobrain product or service may claim that the experience is representative of what consumers will generally achieve.
e. If the Endorser was or will be paid for his/her Endorsement, or there is or was any other material connection between the Endorser and Nootrobrain, Affiliate must include in the Ad a clear and conspicuous disclosure, in close proximity to the Endorsement, that the Endorser has been or will be paid for his/her Endorsement or otherwise disclose the material connection between Endorser and Nootrobrain. Examples of acceptable disclosures include:
• “I may earn compensation for my review, promotion or mention of the Nootrobrain products discussed on this web site.”
• “I have partnered with Nootrobrain to make these products available to you.”
f. If an Endorsement represents, directly or by implication, that the Endorser is an expert, then the Endorser’s qualifications must in fact give him/her the expertise that he/she is represented as possessing with respect to the endorsement.
g. Affiliate may use the Endorsement only as long as Affiliate has good reason to believe that the Endorser continues to subscribe to the views presented.
h. Endorsements shall be in compliance with all laws.
4. Email. If Affiliate distributes Ads by email, Affiliate shall:
a. Remove from the transmission list any email address associated with any person who has previously requested not to receive commercial email solicitations from the “Sender” of the message, as that term is defined by the CAN-SPAM Act.
b. Remove from the transmission list any email address associated with a wireless domain name, as listed on the then-current list of wireless domains maintained by the Federal Communications Commission.
c. 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 the Sender; 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 and Federal Trade Commission regulations and guidelines implementing the CAN-SPAM Act.
d. Ensure that “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 and do not infringe on the intellectual property rights of any third party.
5. Compliance Monitoring. Nootrobrain audits every Affiliate’s Ads on a regular basis. Notwithstanding the foregoing, Nootrobrain has no obligation to monitor Affiliate Ads and is not responsible for Affiliate’s failure to comply with this Agreement. Affiliates that Nootrobrain determines, in its sole discretion, are in violation of this Agreement, will have their account permanently removed from the Program and will not be compensated.
1. Nootrobrain will pay Affiliate a commission (“Commission”) of fifteen percent (15%) to thirty percent (30%) of the advertised price for all sales of Product to consumers resulting from dissemination or distribution of an Affiliate Ad, exclusive of shipping, handing, taxes, merchant processing fees, refunds/returns, chargebacks, and any other charges related to the sale of the Product. A list of products and there applicable Commission payouts can be obtained by contacting email@example.com. For Products sold to a particular customer initially brought to Nootrobrain for the first time by Affiliate, the commission shall be as described above. For subsequent order by such customer or orders to that customer on a recurring or continuity basis, Nootrobrain will pay Commission to Affiliate for each purchase made by that customer on the re-order, recurring or continuity basis equal to 50% of the net profits exclusive of all applicable fees, including but not limited to cost of goods and operational cost, in addition to those items mentioned above. The 50/50 back end commission split is based on the relative company profitability at any given time.
Nootrobrain reserves the right to change the Commission percentage payable to Affiliate for the sale of any Product at any time, for any or no reason. Such change in Commission shall be available to Affiliate at firstname.lastname@example.org or at www.Nootrobrain.com. If the sales price has been reduced or discounted, Commission will be paid on the discounted price. Products purchased by Affiliate at wholesale pricing or for personal use are not eligible for Commission. To track sales eligible for Commission, you can log-on to your account at: www.Nootrobrain.com.
2. Nootrobrain calculates Commission due to Affiliates twice per month, for sales made from the 1st to the 15th of the month and sales made from the 16th to the end of the month (each period, a “Reporting Period”). Nootrobrain will make every effort to pay you the Commission due for a Reporting Period within15 days following the end of the Reporting Period; however, Nootrobrain is not bound to make payments by this deadline. If you have questions about transactions eligible for Commission or dispute Nootrobrain’ reports regarding sales eligible for Commission, you must contact Nootrobrain at email@example.com within three (3) business days following the end of the Reporting Period. Nootrobrain will work with you in good faith to resolve any such dispute; however, Nootrobrain shall have the authority to make the final determination, in Nootrobrain’s sole discretion, as to the resolution of all disputes. Unless otherwise arranged with Nootrobrain and confirmed in writing, payments to you will be made via direct deposit to the banking account you have on file with Nootrobrain.
3. Nootrobrain shall pay to Affiliate a bonus Commission in the amount of two percent (2%) equal to Ten Thousand Dollars ($10,000USD) for each Five Hundred Thousand Dollars ($500,000.00USD) in total Product sales (excluding shipping, handling, taxes, refunds/returns, chargebacks, and any other charges related to the sale of the Product) on an annual basis beginning September 1 of each year through August 31 of the following year, the “Annual Period” (the “2% Bonus Commission”). The initial Annual Period may begin in August of 2012 when Affiliate first sells the Product through August 31, 2013. For the avoidance of doubt, when Affiliate reaches $500,000 in total sales of Product in the Annual Period, Affiliate will be entitled to receive a 2% Bonus Commission of $10,000USD. Affiliate will also be entitled to receive a 2% Bonus Commission in the amount of $10,000USD for each additional $500,000 of Product sales generated (i.e., at $1,000,000, $1.500,000, etc.) during the Annual Period. Thereafter, the Annual Period will start over on September 1 of each year.
The 2% Bonus Commission shall be payable to Affiliate once annually within sixty (60) days of the end of the Annual Period (i.e., by October 31 of each year).
IMPORTANT NOTICE FOR ALL UNITED STATES CITIZENS:
We only pay commissions via direct deposit and you, as a U.S. company or citizen, MUST fill out a U.S. W-9 Tax Form before receiving any commissions. Foreign companies or entities must comply with all U.S. laws, regulations, and requirements, including trade restrictions. Export of any product is at Affiliates sole risk. Affiliate must comply with all laws, including but not limited to U.S. and applicable foreign laws, related to trade compliance, licensing, labeling, and sales and marketing. Affiliate will defend, indemnify and hold harmless Nootrobrain from any violation or claim of violation of such laws, regulations, or requirements.
Use of Sub-Affiliates.
1. Affiliate agrees not to broker or resell Ads, or otherwise engage or arrange for other parties (“Sub-Affiliates”) to distribute Ads without express written permission from Nootrobrain, which may be withheld for any reason. Affiliate’s failure to comply with the preceding provision will result in (a) Affiliate automatically forfeiting the right and claim to any revenue generated for its account, (b) immediate termination of Affiliate’s participation in the Program, and (c) sole liability to Nootrobrain for all damages related to such breach.
2. If Nootrobrain approves Affiliate’s use of Sub-Affiliates, Affiliate (a) must require each Sub-Affiliate to agree in writing to terms and conditions substantially similar to the Compliance Requirements set forth in Section B of this Agreement, and (b) remains solely responsible and liable to Nootrobrain for all of the actions (or failure to act) of any such Sub-Affiliate or any other parties working with, for, or under such Sub-Affiliate. Affiliate must keep records of all Sub-Affiliates and Ads distributed by Sub-Affiliates during the term that this Agreement remains effective and for a period of at least two (2) years thereafter. Affiliate must immediately comply with any demand by Nootrobrain to terminate any Sub-Affiliate from distributing Ads.
DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY.
1. Nootrobrain PROVIDES THE PROGRAM ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Nootrobrain MAKES NO WARRANTIES, GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. Nootrobrain DOES NOT WARRANT OR GUARANTEE SALES, CONVERSION RATES, COMMISSION RATES, AD RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES. ALL SERVICES ARE CONTINGENT UPON Nootrobrain’S ABILITY TO PROCURE NECESSARY ON-LINE AND OTHER COMMUNICATIONS ACCESS AND Nootrobrain IS NOT RESPONSIBLE FOR DELAYS CAUSED BY FORCE MAJEUR SUCH AS ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. Nootrobrain SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
EXCEPT AS EXPRESSLY PROVIDED BELOW WITH RESPECT TO INDEMNIFICATION AND CONFIDENTIALITY, UNDER NO CIRCUMSTANCES SHALL Nootrobrain BE LIABLE TO AFFILIATE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN. Nootrobrain SHALL NOT IN ANY EVENT BE LIABLE TO AFFILIATE FOR MORE THAN THE AMOUNT PAID TO AFFILIATE HEREUNDER. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST Nootrobrain MORE THAN ONE YEAR AFTER THE DATE OF THE EVENT THAT GAVE RISE TO THE ACTION, SUIT, OR PROCEEDING.
2. UNDER NO CIRCUMSTANCE SHALL Nootrobrain’S LIABILITY EXCEED THE AMOUNTS OWED TO AFFILIATE IN THE PRIOR THREE MONTH PERIOD.
Affiliate hereby agrees to indemnify, defend, and hold harmless Nootrobrain from and against all claims, causes of action, suits, liabilities, damages, costs, expenses and fees (including attorneys’ fees) arising out of or related to: (a) a claim for libel, defamation, violation of rights of privacy or publicity, intellectual property infringement or misappropriation, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Affiliate’s Ads; (b) any material breach by Affiliate of any provision of this Agreement or any misrepresentation of Affiliate hereunder; (c) any inaccuracies or omissions contained in Affiliate’s Application, (d) violation, alleged violation, claim or investigation under any applicable law, or (e) any acts or omissions of any Sub-Affiliate or any other parties working with or under such Sub-Affiliate related to this Agreement (as applicable). Nootrobrain shall have the right to participate fully, at its own expense, in the defense of any action for which indemnity is sought. If a dispute arises over whether Nootrobrain is so entitled to indemnification, then Nootrobrain shall be free, without prejudice to any of Nootrobrain rights hereunder, to compromise and defend such action. Any compromise or settlement of any action for which indemnity is sought shall require the prior written consent of both parties hereunder; such consent will not be unreasonably withheld or delayed.
1. Relationship of Parties. For purposes of this Agreement, each party shall be and act as an independent contractor. This Agreement does not constitute, create, or give effect to any employer/employee or franchiser/franchisee relationship, nor any joint venture, partnership, limited partnership, or agency among the parties, and the parties hereby acknowledge that no other facts of relations exist that would constitute, create, or give to effect any such relationship between them. Neither party has any right or authority to assume or create any obligation or responsibility on behalf of the other party except as may from time to time be provided otherwise by written agreement signed by both parties.
2. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their subsidiaries, and their respective successors and assigns, provided that neither party may assign any of its rights or privileges hereunder without the prior written consent of the other party except to a successor in ownership (for example, by merger or acquisition) of all or substantially all of the assets of the assigning party, and which successor shall expressly assume in writing the performance of all the terms and conditions of this Agreement to be performed by the assigning party. Any attempt at assignment in derogation of the foregoing shall be held null and void.
3. Mutual Representations. Each party represents and warrants that it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereunder, and each party has obtained all licenses, authorizations, consents or permits required to perform its obligations under this Agreement and to conduct its business.
4. Severability. If any provision of this Agreement is held to be ineffective, unenforceable or illegal for any reason, such decision shall not affect the validity of any or all of the remaining portions thereof.
5. Entire Agreement; No Waiver. This Agreement constitutes the entire agreement and supersedes all prior agreements of the parties with respect to the transactions set forth herein. No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
6. Governing Law. This Agreement will be governed by and construed under the laws of the State of Tennessee without regard to the conflicts of law provisions thereof. Any action relating to this Agreement must be brought in a court of competent jurisdiction in the State of Tennessee, and Affiliate irrevocably consents to the jurisdiction of such courts.
7. Confidentiality. Each party acknowledges that it will not disclose the confidential information of the other party, except to its employees and professional advisors and except as required by law.
8. Entire Agreement; Modifications. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Applicable sections shall survive expiration or early termination of this Agreement. Nootrobrain reserves the right to change any condition of this Agreement at any time, in which case notification may be provided to Affiliates but is not required. Affiliate is responsible for checking for updates to this Agreement regularly. Affiliate’s continued use of or participation in the Program after any such updates are posted constitutes Affiliate’s consent and agreement to the changes.
9. Disputes. Affiliate acknowledges and accepts and provides Nootrobrain the sole discretion to resolve any dispute between Affiliate and Nootrobrain. Such decision shall be final and binding. Affiliate agrees to be bound by the decision of Nootrobrain.
10. Notices. All notices to firstname.lastname@example.org.
11. Authority. Affiliate represents and warrants that the person accepting these Terms and Conditions has the authority to bind Affiliate.
These Terms and Conditions are agreed to and entered into upon Affiliate’s acceptance.