PLEASE READ THE ENTIRE AGREEMENT.
YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND ATP NUTRITIONALS LLC (DBA MUSCLE HAMMER) THE OWNER OF THEMUSCLEHAMMER.COM
BY SUBMITTING THE 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.
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in TheMuscleHammer.com’s Affiliate Program. The purpose of this Agreement is to define the terms and conditions under which you may promote the Muscle Hammer device and website in return for referral commission. Please note that throughout this Agreement, “we,” “us,” and “our” refer to TheMuscleHammer.com, 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. We may reject your application at our sole discretion. In addition, we may rescind your affiliate status at any time if we determine that your website, social media profiles or promotional strategies are unsuitable for our Program, including if it:
- Promotes sexually explicit materials
- Promotes violence
- Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- Promotes illegal activities
- Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
- Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
2.2. You may NOT create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are TheMuscleHammer.com or any other affiliated business.
2.3. As a member of TheMuscleHammer.com’s Affiliate Program, you will have access to Affiliate Account Manager. Here you will be able to review our Affiliate activity.
2.4. TheMuscleHammer.com reserves the right, at any time, to review your promotional efforts and require that you change your efforts to comply with the guidelines provided to you.
2.6. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your promotional efforts. 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 material or other intellectual property in violation of the law or any third party rights.
3. Promotion Restrictions
This is a word-of-mouth Affiliate Program. We want your referrals to come from word of mouth between friends, social media followers and person-to-person contact. We do not want people trying to mass market the Muscle Hammer all over the internet.
3.1. No mass posting your affiliate link or coupon code to forums, online communities or any public areas on the internet.
3.2. No email spamming with your affiliate link or coupon code. However, you may use email marketing to promote the Muscle Hammer 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.
3.3. No paid ads with your affiliate link or coupon code.
3.4. No banner or text ads on websites without prior content approval from TheMuscleHammer.com.
4. TheMuscleHammer.com Rights and Obligations
4.1. We have the right to monitor your promotional efforts 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 efforts that we feel should be made. If you do not make the changes that we feel are necessary, we reserve the right to terminate your participation in the TheMuscleHammer.com Affiliate Program.
4.2. TheMuscleHammer.com reserves the right to terminate this Agreement and your participation in the TheMuscleHammer.com Affiliate Program immediately and without notice to you should you commit fraud in your use of the TheMuscleHammer.com Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, TheMuscleHammer.com shall not be liable to you for any commissions for such fraudulent sales.
4.3. This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated hereunder.
5.1. 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, email or fax. If We end this agreement without cause, commissions due will be paid out to you as soon as the commission is eligible for payment. If you end this agreement for any reason, all owed commission will be voided.
5.2. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you and any commission owed at that time will be voided.
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. Modifications may include, but are not limited to, changes in the commission amounts, payment procedures and TheMuscleHammer.com’s Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in TheMuscleHammer.com’s Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
7.1. Referred sales are not eligible for commission until after the 30 Day Return period has passed. Commissions are paid by the 10th of the month for the previous month’s eligible commissions. So for example… if a sale is made on Jan 10th, it becomes eligible for commission on Feb 9th, and commission will be paid by the 10th of March.
7.2. The commission amount is 25% unless otherwise designated by TheMuscleHammer.com
7.3. All commissions will be paid through Paypal, so you must have a Paypal account to participate in this program. Sorry no exceptions.
8. Access to Affiliate Account Interface
You will create a password so that you may enter TheMuscleHammer.com’s affiliate account interface. From here you will be able to receive reports that will describe our calculation of the commissions due to you.
9. Grant of Licenses
9.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site 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 a member in good standing of TheMuscleHammer.com’s Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of TheMuscleHammer.com and the good will associated therewith will inure to the sole benefit of TheMuscleHammer.com.
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.
THEMUSCLEHAMMER.COM MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THEMUSCLEHAMMER.COM SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF THEMUSCLEHAMMER.COM ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. 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.
11. Representations and Warranties
You represent and warrant 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;
- 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;
- 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 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, 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 THEMUSCLEHAMMER.COM’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 TO YOU UNDER THIS AGREEMENT.
You hereby agree to indemnify and hold harmless TheMuscleHammer.com, 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 in respect thereof) arise out of or are based on (i) 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, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
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 marked “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.
15.1. 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 TheMuscleHammer.com. 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 social media accounts, 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 third party.
15.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of CALIFORNIA without regard to the conflicts of laws and principles thereof.
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 TheMuscleHammer.com and you, and shall supersede all prior agreements and communications of the parties, oral or written.
15.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
15.7. 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.