NESS”). BY SUBMITTING THIS ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION OF THIS AFFILIATE AGREEMENT.
1. Overview
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in Vista Fitness’s Affiliate Program (the “Affiliate”). The purpose of this Agreement is to allow HTML linking between your website and Vista Fitness's “Booty Kicker” product website (the “Program”). Please note that throughout this Agreement, “we,” “us,” and “our” refer to Vista Fitness, and “you,” “your,” and “yours” refer to the Affiliate.
2. Affiliate Obligations
2.1. To begin the enrollment process, you will complete and submit the online application at the Vista Fitness server. The fact that we auto-approve applications does not imply that we may not re-evaluate your application at a later time. We may reject your application at our sole discretion. We may cancel your application if we determine that your site is unsuitable for our Program, including if it:
2.1.1. Promotes sexually explicit materials;
2.1.2. Promotes violence;
2.1.3. Promotes discrimination based upon race, sex, religion, national origin, disability, sexual orientation or age;
2.1.4. Promotes illegal activities;
2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark, or other intellectual property rights or to violate the law;
2.1.6. Includes “Vista Fitness” or “booty kicker” or variations or misspellings of either one in your domain name;
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion;
2.1.8. Contains software downloads that potentially enable diversions of commission from other Affiliates in our Program;
2.1.9. You may not create or design your website or any other website that you operate, explicitly or implicitly in a manner that resembles our website nor design your website in a manner which leads customers to believe you are Vista Fitness or Booty Kicker or any of their businesses.
2.2. As a member of Vista Fitness’s Affiliate Program, you will have access to a Vista Fitness Affiliate Account Manager. Here, you will be able to review our Program’s details, download HTML code (that provides for links to web pages within the Booty Kicker 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 site to ours, you must use the HTML code that we provide for each banner, text link, or other affiliate link we provide to you. Vista Fitness shall provide all marketing materials relating to the Program and Affiliate is not allowed to make any Program efficacy claims other than those claims that are expressly provided in the Vista Fitness provided Program materials.
2.3. Vista Fitness reserves the right, at any time, to review your placement and approve the use of your links and require that you change the placement or use to comply with the guidelines provided to you.
2.4. The maintenance and updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
2.5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person’s copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted materials or other intellectual property in violation of the law or any third party rights, including the obligation to hold Vista Fitness harmless in connection with any such claims pursuant to paragraph 13 of this Agreement.
3. Vista Fitness Rights and Obligations
3.1. We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made, or to make sure that your links to our web site are appropriate and to notify you further of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the Vista Fitness Affiliate Program.
3.2. Vista Fitness reserves the right to terminate this Agreement and your participation in the Vista Fitness Affiliate Program immediately and without notice to you should you commit a fraud, be accused of committing a fraud by a third party, or should you abuse the Vista Fitness Affiliate Program in any way. If such fraud or abuse is detected or alleged by a third party, Vista Fitness shall not be liable to you for any commissions for such sales.
3.3. This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated hereunder.
4. Termination
Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail or email. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you.
5. Modification
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email of the changes. Modifications may include, but are not limited to, changes in the payment procedures and Vista Fitness’s Affiliate Program rules. If any modification is unacceptable to you, your only option is to terminate this Agreement. Your continued participation in Vista Fitness’s Affiliate Program following the posting of the change notice or new Agreement on our site will legally serve as your acceptance of the changes.
6. Payment
Vista Fitness uses a third party to handle all payments. This payment processor and the specific dollar amount of payment that is due from Vista Fitness to an Affiliate after a successful Affiliate Program sale is identified on Schedule “A” to this Agreement. Please make sure that you separately check our payment processor’s terms and conditions and user agreement before proceeding. Vista Fitness shall make payments to a registered Affiliate in its next Program monthly payment cycle applicable thirty days after a successful sale. Vista Fitness shall only pay an Affiliate for a successful sales transaction that results in the purchase of a Booty Kicker Program product. Should any commissions be earned by an Affiliate during an applicable billing period, and such amount of monies owed does not exceed $100.00, then Vista Fitness reserves the right to withhold such payment until the next monthly billing cycle where the monies to be paid to the Affiliate exceed $100.00. Affiliate’s are not entitled to receive payment for orders that are returned for any reason whatsoever, or where transactions are not successfully processed. Should a return be effectuated after a payment is made to an Affiliate, then Vista Fitness in its sole discretion shall either provide itself a credit against future monies that are due to an Affiliate, or alternatively, seek a refund of any payments made from the Affiliate generated return of Program product.
7. Access to Affiliate Account Interface
You will create a password so that you may enter Vista Fitness’s secure affiliate portal. From there, you will be able to receive your reports that will describe our calculation of the commissions due to you.
8. Promotion Restrictions
8.1. You are free to promote your own websites, but any promotion that mentions a Booty Kicker Program could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by Vista Fitness. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial e-mail (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote Vista Fitness’s booty kicker product, but only so long as the recipient is already a customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote the Program so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your websites as independent of Vista Fitness. If it comes to our attention that you are spamming, we will consider that as cause to immediately terminate this Agreement. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
8.2. Affiliates are not allowed to bid among keywords that are a derivation of Vista Fitness’s name or the Program, be it separately or in combination with other keywords. Affiliates are not allowed to direct the traffic from any Program campaign to their own website prior to re-directing it to Vista Fitness’s Program website. Vista Fitness reserves the right to terminate the Agreement for any such activities and to treat any Affiliate violation under this paragraph as an act of trademark infringement.
8.3. Affiliate shall not transmit any so-called “interstitials,” “Parasiteware,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets,” or “deceptive pop-ups and/or pop-unders to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited Vista Fitness’s Program site (i.e., no page from our site or any of Vista Fitness’s Program website content or branding is visible on the end-user’s screen.) “Parasiteware” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of Affiliate and non-affiliate tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of the Vista Fitness Program website in Iframes, hidden links and automatic pop-ups that open on Vista Fitness’s Program websites; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
9. Grant of License
9.1. We grant to you a non-exclusive, non-transferable, revocable right to (a) access our site through HTML links solely in accordance with the terms of this Agreement and (b) solely in connection with such links and the attempts to generate Vista Fitness Program sales, to use the Vista Fitness provided logos, trade names, trademarks, and similar identifying material, (the “Licensed Materials.”) You are only entitled to use the Licensed Materials if you remain a party in good standing performing services under this Agreement. You agree that all uses of the Licensed Materials will be on behalf of Vista Fitness and the good will associated with any such use shall inure to the sole benefit of Vista Fitness.
9.2. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
10. Disclaimer
Vista Fitness makes no express of implied representations or warranties regarding its Program website to Affiliate, and that the operation of its website will be uninterrupted or error free. Vista Fitness shall not be liable to Affiliate for the consequences of any such interruptions or errors.
11. Representations and Warranties
You represent and warrant that: (a) you have fully reviewed and are electing to proceed with the terms of this Agreement; (b) 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; (c) you have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
12. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH REPSECT 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, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICPATED 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 Vista Fitness’S CUMULATIVE LIABILITY TO YOU 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 OR PAYABLE TO YOU UNDER THIS AGREEMENT.
13. Indemnification
You hereby agree to indemnify and hold harmless Vista Fitness LLC, 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”) insofar as such Losses (or actions with respect to such Losses) arose out of or are based on (a) any claim that our use of the Affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (b) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (c) any claim related to your site, including, without limitation, content therein not attributable to us.
14. Confidential
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is designated as “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
15. Miscellaneous
15.1. 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 Savvier. 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 websites or otherwise, that reasonably would contradict anything in this section.
15.2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a party to this Agreement and who agrees to be bound to the terms of this Agreement.
15.3. This Agreement shall be governed by the laws of the State of California without respect to any conflicts of law principles. In the event of any dispute under this Agreement, then the parties agree that they shall be subject to binding arbitration in Los Angeles, California, under the Commercial Arbitration Rules of Judicial and Mediation Services (JAMS). Should this arbitration provision not be valid, then the parties agree that any disputes shall be exclusively venued in the Courts located within San Diego, California.
15.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
15.5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written. 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.
SCHEDULE A TO AFFILIATE AGREEMENT
Booty Kicker commission is $25.00 per completed unit sale, net of any product refunds or customer returns. We will mail you a check every time your balance exceeds $100. We mail checks at the beginning of every month. Your final check will include any remaining balance.
No commissions on other products or brand related items unless specified otherwise in writing on this Schedule A.
Effective 12/1/2019