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Affiliates Program

Operating Agreement
This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Vitalityweb/BackSport Health Products Affiliates Program (the "Program"), and the establishment of links from your affiliate Web site to our Web site "The-Backstore.com". As used in this Agreement, "we" means Vitalityweb/BackSport Health Products, and "you" means the applicant. "Site" means a World Wide Web site and, depending on the context, refers either to Vitalityweb's site located at the URL www.The-Backstore.com, or to the site that you will link to our site (and which you will identify in your Program application).

 

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND Vitalityweb™/BackSport Health Products™ /The-BackStore.com™ BY CLICKING ON THE "I AGREE" BUTTON AT THE END OF THIS AFFILIATE PROGRAM AGREEMENT YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH HEREIN AND ARE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AFFILIATE PROGRAM AGREEMENT AND YOU AGREE TO BE BOUND BY THE TERMS HEREOF.

  1. Enrollment in the Program
    To begin the enrollment process, you will submit a complete Program application via our site. We will evaluate your application in good faith and will notify you of your acceptance or rejection. 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 incorporates images or content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable, such as sites that facilitate illegal activity, depict sexually explicit images; promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promote illegal activities or incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights (collectively "Content Restrictions").

    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 this Agreement.

     

  2. Using our Links on Your Site
    Once you have been notified that your site has been accepted into the Program, we will make available to you banner advertisements for our site, button links to our site and/or text links to our site, containing Vitalityweb™'s, BackSport Health Products™'s or The-Backstore.com's logo and words identifying Vitalityweb™, BackSport Health Products™'s and/or The-Backstore.com (these links sometimes being referred to herein collectively as "Links", or individually as a Link"), which, subject to the terms and conditions hereof, you may display on your site. In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links.

    All Affiliate Sites shall display our graphic images prominently throughout your site as you see fit and with our consent. You shall not alter, modify or expand the links in any way; however, a Link may be modified and/or expanded with our written consent. Each Link connecting users of your site to our site, will in no way alter the look, feel or functionality of our site. We have the right in our sole discretion to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement.

    To permit accurate tracking, reporting, and referral fee accrual, we will provide you with special "tagged" URL link formats to be used in all links between your site and our site. You must ensure that each of the links between your site and our site properly utilizes such special URL link formats. Links to our site placed on your site pursuant to this Agreement and which properly utilize such special link formats are referred to as "Special Links." You will only earn referral fees with respect to activity on our 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 which would otherwise be paid to you pursuant to this Agreement. 

  3. Order Processing
    We will be responsible for processing Product orders placed by customers who follow Special Links from your site to our site. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. 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 using Special Links from your site to our 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. You may see a sample statistics page at: http://st7.yahoo.com/cgi-bin/master/CLINKMGR.backstore/seelink/NvJcTg+q9TB2LYCaJ

     

  4. Referral Fees
    We will pay you (in accordance with Sections 5 and 6 below) referral fees on Net Sales to third parties. For a Product sale to be eligible to earn a referral fee, the customer must follow a Special Link from your site to our site, select and purchase the Product using our automated ordering system, accept delivery of the Product at the shipping destination, and remit full payment to us. We will not, however, pay referral fees on any Products that are added to a customer's Shopping Cart or are purchased via our web site after the customer has reentered our site (other than through a Special Link), even if the customer had previously followed a link from your site to our site. Gift certificates are not eligible to earn referral fees. For the purposes of this Agreement "Net Sales" shall mean sales revenues less amounts collected by us for sales taxes, duties, shipping, handling, credit card fees and similar charges. The Referral Fee is subject to change at any time or from time to time, in our sole and absolute discretion. You will be notified of any change in the Referral Fees. Net Sales will also be reduced for amounts due to credit card fraud, bad debts, cancellations and credits for returned goods. A commission will only be paid if the visitor to our site is tracked by the system from the time of the Link to the time of the sale. No commission will be paid if the visitor to our site cannot be tracked by our system. The Program is intended for commercial use only, and you may not purchase products through the Program for your own use. Such purchases may result (in our sole discretion) in the withholding of referral fees or the termination of this Agreement. Products that are eligible to earn referral fees under the rules set forth above are referred to as "Qualifying Products." The following example scenarios are for purposes of illustration only. We maintain the sole right to determine when and if a commission payment is due. (i) if a visitor comes to our site once from a link from Site A and then later returns to our site from a link from Site B, all commissions will be paid to Site B; (ii) if a visitor comes to our site from Site A, purchases nothing, and later returns directly to our site to purchase product, no commission will be paid.

    Only Product that is sold by us (to users of your site through Links to our site), shipped to a customer and for which we have received full payment will qualify for a commission. For a sale to generate a commission, the customer must follow the Link from your site to our site, purchase the product or products in question using our online ordering system, accept delivery of the item at the shipping destination, and remit full payment to us.

     

  5.  Referral Fee Schedule
    You will earn referral fees based on Qualifying Revenues according to referral fee schedules to be established by us. "Qualifying Revenues" are revenues derived by us from our sales of Qualifying Products, excluding costs for shipping, handling, gift-wrapping, taxes, service charges, credit card processing fees, and bad debt. The current referral fee schedule is:
    • 10% of Qualifying Revenues from the sale of individual products with a price of $1000 or less.
    • 5% of Qualifying Revenues from sales of individual products with a price of greater than $1000.

     

  6. Referral Fee Payment
    We will pay you referral fees on a quarterly basis. Approximately 30 days following the end of each calendar quarter, we will send you a check for the referral fees earned on our sales of Qualifying Products that were shipped during that quarter, less any taxes that we may be required by law to withhold. However, if the referral fees payable to you for any calendar quarter are less than $50.00, we will hold those referral fees until the total amount due is at least $50.00 or (if earlier) until this Agreement is terminated. If a Product that generated a referral fee is returned by the customer, we will deduct the corresponding referral fee from your next quarterly payment. If there is no subsequent payment, we will send you a bill for the referral fee.

     

  7. Policies and Pricing
    Customers who buy products through this Program will be deemed to be customers of Vitalityweb, BackSport Health Products and The-Backstore.com. Accordingly, all Vitalityweb rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. Because price changes may affect Products that you already have listed on your site, you may not include price information in your Product descriptions. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.

     

  8. Identifying Yourself as an Associate
    We will make available to you a small graphic image that identifies your site as a Affiliate Program participant. You must display this logo or the phrase "In association with Vitalityweb's The-Backstore" somewhere on your site. We may modify the text or graphic image of this notice from time to time. In addition, we encourage (but do not require) you to include a Special Link on your site to Vitalityweb's The Backstore.com home page at http://www.the-backstore.com. You may not make any press release with respect to this Agreement or your participation in the Program without our prior written consent, which may be given or withheld in our sole discretion.

     

  9. Limited License
    We grant you a nonexclusive, revocable right to use the graphic image and text described in this agreement and such other images for which we grant express permission, solely for the purpose of identifying your site as a Program participant and to assist in generating Product sales. You may not modify the graphic image or text, or any other of our images, in any way. We reserve all of our rights in the graphic image and text, any other images, our trade names and trademarks, and all other intellectual property rights. We may revoke your license at any time by giving you written notice.

     

  10. Non-Exclusive Limited License and Use of Affiliates Logos and Trademarks.
    You grant us a non-exclusive license to utilize your names, titles, logos, and trademarks (collectively the "Affiliate Marks"), and to advertise, market, promote and publicize in any manner our rights hereunder. Notwithstanding anything herein to the contrary, we shall not be required to so advertise, market, promote or publicize. You hereby represent and warrant that you are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use same in the manner contemplated herein, and such grant does not or will not (i) breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon you, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.

    This license shall terminate upon the effective date of the expiration or termination of this Agreement.

     

  11. Publicity
    You shall not create, publish, distribute or permit any written material that makes reference to us, without first submitting such material to us and receiving our written consent.

     

  12. Responsibility for Your Site
    You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for the technical operation of your site and all related equipment, creating and posting Product descriptions on your site and linking those descriptions to our catalog, the accuracy and appropriateness of materials posted on your site (including, among other things, all Product-related materials), ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), and ensuring that materials posted on your site are not libelous or otherwise illegal.

    We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site.

     

  13. Term of the Agreement
    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 our site, and all Vitalityweb, BackSport Health Products and The-Backstore.com 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 only eligible to earn referral fees on our sales of Qualifying Products occurring 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.

     

  14. Modification
    We 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 our 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 OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.

     

  15. Relationship of Parties
    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.

     

  16. Limitation of Liability
    We 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.

     

  17. Disclaimers
    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, non infringement, 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 our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.

     

  18. Representations and Warranties
    You hereby represent and warrant to us that 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; and that the execution, delivery and performance by you of this Agreement are within your legal capacity and power; have been duly authorized by all requisite action on your part; require the approval or consent of no other persons; and neither violate nor constitute a default under the (i) provision of any law, rule, regulation, order, judgment or decree to which you are subject or which is binding upon you, or (ii) the terms of any other agreement, document or instrument applicable to you or binding upon you.

     

  19. Confidentiality
    We may disclose to you certain information as a result of your participation as part of the Affiliate Program, which information we consider to be confidential (herein referred to as "Confidential Information"). For purposes of this Agreement, the term "Confidential Information" shall include, but not be limited to, any modifications to the terms and provisions of this Affiliate Program Agreement made specifically for your site and not generally available to other members of the Affiliate Program, website, business and financial information relating to Vitalityweb™, BackSport Health Products™, The-BackStore.com™, customer and vendor lists relating to Vitalityweb™, BackSport Health Products™, The-BackStore.com™ and pricing and sales information for Vitalityweb™, BackSport Health Products™, The-BackStore.com™ and any members of the Affiliate Program, other than you. Confidential Information shall also include any information that we designate as confidential during the term of this Agreement.

    You agree not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or if same is required by law or legal process. We make no warranty, expressed or implied, with respect to any information delivered hereunder, including implied warranties of merchantability, fitness for a particular purpose or freedom from patent, trademark or copyright infringements, whether arising by law, custom or conduct, or as to the accuracy or completeness of the information and we shall not have any liability to you or to any other person resulting from your or such third person's use of the information.

     

  20. Indemnification
    You hereby agree to indemnify, defend and hold harmless Vitalityweb™, BackSport Health Products™, The-BackStore.com™, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, demands, losses, liabilities, damages or expenses (including attorneys' fees and costs) of any nature whatsoever incurred or suffered by us (collectively the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of, are related to, or are based on (i) any claim or threatened claim that our use of the Affiliate Trademarks infringes on the rights of any third party; (ii) the breach of any representation or warranty made by you herein; or (iii) or any claim related to your site.

     

  21. Independent Investigation
    YOU 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 AGREEMENT.

     

Miscellaneous
This Agreement will be governed by the laws of the United States and the state of California, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in San Diego, California, and you irrevocably consent to the jurisdiction of such courts. 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 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.

 

  THIS IS A LEGAL AGREEMENT BETWEEN YOU AND Vitalityweb™, BackSport Health Products™, The-BackStore.com™. BY CLICKING ON THE "ACCEPT" BUTTON AT THE END OF THIS AFFILIATE NETWORK AGREEMENT YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH HEREIN AND ARE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AFFILIATE NETWORK AGREEMENT AND YOU AGREE TO BE BOUND BY THE TERMS HEREOF.

 

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