As used in this Agreement, the terms, "we," "our" and "Vita-Mix" refer to Vita-Mix Corporation
and the terms "Vita-Mix Affiliates", "Affiliates", "you" and "your" refer to the person accepting these terms and conditions.
To begin the enrollment process, you will need to review the terms of the agreement and indicate your acceptance of these terms by clicking "I Agree" at the bottom of the page. Once you have agreed to the terms, you will be linked to our Affiliate Application. After you submit a complete Affiliate Application via our website, we will evaluate your application and notify you of your acceptance or rejection in a timely manner. We have no obligation to accept you as a Vita-Mix Affiliate. The terms of this Agreement will become binding upon our acceptance of your Affiliate Application and will end immediately when terminated by either party. Either party may terminate this agreement at any time, with or without cause, by giving the other party written notice of termination. If this Agreement is terminated, or we notify you of a breach by you, you shall be required to remove all Vita-Mix graphic and/or textual links (each of these links referred to herein as "Links" or, individually, as a "Link") within 24 hours of receipt of notice. The first sale of a Vita-Mix 5000 under the Affiliate program is not eligible for commission. Thereafter, you are only eligible to earn commissions if you sell a minimum of six (6) Vita-Mix 5000 machines within a twelve (12) month period; and then, only on completed sales through the date of termination. Commissions earned through the date of termination will remain payable only if the related Vita-Mix product orders are not cancelled or returned. We may withhold your final payment for a reasonable time to ensure that the correct commission is paid. We may offset the amount of any commissions previously paid on Products or accessories which are subsequently returned against any commissions due you.
The Vita-Mix 5000
- Affiliate sales of Vita-Mix 5000 products and accessories will qualify for a commission when each of the following conditions is met:
- All orders must contain your ID Code as Vita-Mix 5000 models are billed and shipped directly to your customer by Vita-Mix; and
- Vita-Mix 5000 models are purchased by your customers by one of the following methods:
- Your customer may click on the Vita-Mix link on your website and place the order in the Vita-Mix electronic store;
- Your customer may contact the Household Sales Department at Vita-Mix, via phone, fax or email, and place the order; or
- You may contact the Household Sales Department at Vita-Mix, via phone, fax or email, and place the order for your customer.
Your customer must use your ID Code when placing the order for you to get your commission and for your customer to receive free standard shipping anywhere within the UK and Ireland. Commission rates are as follows: 15% of net sales for qualifying Vita-Mix 5000 and 5% on net sales of accessories. The term "net sales" means the aggregate amount actually paid to Vita-Mix for qualifying purchases, excluding amounts attributable to VAT or other sales taxes, duties, and shipping and handling charges. Sales of any Vita-Mix product below the approved affiliate pricing guidelines will not qualify for the affiliate commission. Commissions will be paid quarterly on those qualifying sales on which Vita-Mix has received payment in full and verified that the machine has not been returned by the customer. In the event that a commission has been paid to you and we have to refund payment to a customer in respect of the products or accessories to which the commission relates, we will set off such sum against future commissions due you, or we may demand repayment from you. The commissions to be paid under this Agreement may not be assigned by you to any third party.
- Customers purchasing Vita-Mix 5000 products and accessories through the Affiliate Program will be deemed customers of Vita-Mix. The Vita-Mix 5000 models are billed and shipped directly to your customer by Vita-Mix. All Vita-Mix rules, policies, terms and conditions and operating procedures concerning customer orders, customer service, and Vita-Mix product sales will apply to those customers. We may change our policies and operating procedures, including pricing, at any time. We will solely determine the prices to be charged for Vita-Mix products sold under the Affiliate Program in accordance with our own pricing policies. You may not include price information on your website other than pricing information that is made available on the Links we provide to you. Prices and availability of Vita-Mix products may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we do not guarantee or warrant the availability or price of any particular product.
- Vita-Mix reserves the right not to sell to any customer.
General Terms & Conditions
Publicity/Use of our name
You cannot create, publish, distribute, or print any material that makes reference to Vita-Mix or uses our name or any of our trademarks, or trade names for any marketing or promotional materials, whether print, broadcast or electronic, without first submitting such material to Vita-Mix and receiving our written consent. Vita-Mix Affiliates are also prohibited from displaying in fairs, trade shows, and exhibitions or any public forum where Vita-Mix is present or displaying. You can view the Vita-Mix Show Schedule at www.vitamix.com for current show listings. Vita-Mix Affiliates may not interfere with the sales process of Vita-Mix show personnel. Vita-Mix Affiliates may NOT place the name Vita-Mix, Vita-Mix product names, Vita-Mix Free Shipping any Vita-Mix trademark or trade name, or any derivative thereof in internet page titles, domain names, or meta-tags. UNDER NO CIRCUMSTANCES WILL YOU PERMIT, ENABLE OR ALLOW THE NAME VITA-MIX, ANY OF VITA-MIX'S TRADEMARKS, TRADE NAMES, PRODUCT NAMES, OR ANY DERIVATIVES OF ANY OF THE ABOVE LEAD DIRECTLY TO ANY OTHER WEBSITE ON THE INTERNET!
Relationship of parties
The parties to this Agreement are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Members of the Affiliate Program are "independent businesses" and are not considered to be employees or agents of Vita-Mix. As an independent business, you are in no way authorized to represent or to make claims for or on behalf of Vita-Mix, directly or indirectly, written or otherwise expressed, or to bind Vita-Mix in any way without the prior written consent of Vita-Mix. All advertising, literature, etc. of Vita-Mix products must be pre-approved in writing by Vita-Mix. We are not responsible for any content or information other than that which is produced by us, and then only so long as the same has not been altered or used inappropriately. You will not make any statement, whether on your website or otherwise, that reasonably would contradict anything in this section.
You are responsible for all of your own expenses and all taxes (including VAT), income tax, national insurance contributions which are payable or required for you to conduct your activities under this Agreement and you shall keep Vita-Mix indemnified accordingly.
Disclaimers
We make no express or implied warranties or representations with respect to the Affiliate network or any Vita-Mix products sold through the Affiliate network (except our standard product warranty and our money-back guarantee), including without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of course of performance, dealing, or trade usage. In addition, we make no representation that the operation of our website will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors.
Website eligibility
We may reject your Application if we determine in our sole discretion that your website is unsuitable for the Affiliate Program. By way of example, websites that contain material that is harmful, threatening, defamatory, obscene, explicit, harassing, or racially, ethically, or otherwise objectionable will be deemed unsuitable. This includes websites that promote explicit materials, violence, discrimination(whether based on sex, religion, nationality, disability, sexual orientation, or age) or illegal activities that infringe or otherwise violate any copyright, trademark, trade name, or other intellectual property rights, or are unsuitable for linking to any Vita-Mix website or which may bring Vita-Mix into disrepute.
Website Link for Vita-Mix 5000
We will be responsible for providing the information necessary to allow you to make appropriate Links for the Vita-Mix 5000 models from your website to our website; however, all Links must be approved in writing and in advance by us. We will be solely responsible for processing orders placed on our website by a customer following a Link from your website or otherwise contacting Vita-Mix (see Section 2) to place an order using the ID Code. Tracking sales statistics will be available to you at a later date. We reserve the right to reject any order. We will be responsible for order entry, payment processing, shipping, cancellations, returns, and customer service related to the purchase.
Promotion of our Affiliate relationship
As an affiliate, we will make available to you one or more Links for use on your website that, subject to the terms and conditions hereof, you may display on relevant areas of your website. These Links will be made available by contacting us directly. The Links will serve to identify your website as a member of our Affiliate Program and will establish a link from your website to ours.
Affiliate website responsibilities
You agree that Vita-Mix has the right to refuse to sell or allow any of its products to be sold to anyone including anyone who we believe will cause harm to the image of the company or to the image or marketability of our products. If we allow you to promote our products on your website, you agree to abide by the following conditions:
- In utilizing the Links, you as an Affiliate, agree that you will cooperate fully with us in order to establish and maintain such Links. In order to permit accurate tracking and reporting, you will be responsible for ensuring that the Links between our website and yours are properly formatted. If you qualify and agree to participate as an Affiliate in our Program, you shall display Links prominently in relevant areas of your website subject to any and all limitations herein and only with our prior written consent. Vita-Mix has the right, based on our sole discretion, to monitor your website at any time to determine if you are in compliance with the terms of this Agreement. You, as an Affiliate, agree not to buy or encourage others to buy Vita-Mix 5000 products through your links for subsequent resale. Sale of new Vita-Mix products on auction sites such as eBay® or similar sites, is strictly prohibited. You recognize that Vita-Mix Corporation and the name Vita-Mix, Vita-Mix's trademarks and trade names or Vita-Mix's products or product names cannot be used in your URL, title, or meta tags for search engine purposes. You, as an Affiliate, agree that the Links will in no way affect or alter the look, feel, or functionality of our website. Without limiting the foregoing, you are expressly prohibited from framing our website in any manner, including without limitation causing your website's tool bar to appear on our website. You as an Affiliate shall not alter, modify, or expand the Links in any way without our express prior written consent. You recognize that bidding on any of the registered Vita-Mix names, trademarks, trade names or product names (or confusingly similar names) on any pay-for-placement search engines, including but not limited, to overture.com®, findwhat.com®, google.com™ or Ask Jeeves®, is strictly prohibited. You may not use the term "Vita-Mix," any Vita-Mix trademark, or trade name, any Vita-Mix product name, or any similar mark or name in your keyword metatags to display under search engines. Unnecessary or repetitive use of the registered Vita-Mix names (or confusingly similar names) on your website is prohibited. You may not utilize, advertise or otherwise promote any Vita-Mix promotional code or coupon without first obtaining our written permission.
- Your website must clearly state its complete legal name, full address and telephone number on each page.
- A portion of commissions earned are intended to reimburse you for costs you may incur in establishing and maintaining your website.
If the above conditions have not been met, we reserve the right to revoke your right to link to our website, or to terminate your involvement in the Affiliate Program, or both.
Obligations regarding your website
You will be solely responsible for the development, operation, and maintenance of your website and for all materials that appear on your website. Such responsibilities include, but are not limited to, the technical operation of your website and all related equipment; the accuracy and propriety of materials and information posted on your website (including but not limited to, all Vita-Mix product related materials); ensuring that materials posted on your website do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability for all such matters and for any content on your websites. Further, you will indemnify and hold us harmless for all claims, damages, and expenses, including, but not limited to legal fees, relating to the development, operation, maintenance, and contents of you website. YOU HEREBY AGREE THAT YOUR WEBSITE WILL NOT, IN ANY WAY, COPY OR RESEMBLE THE LOOK AND FEEL OF OUR WEBSITE NOR WILL YOU DO ANYTHING TO CREATE THE IMPRESSION THAT YOUR WEBSITE IS OUR WEBSITE OR PART OF OUR WEBSITE, INCLUDING WITHOUT LIMITATION, FRAMING OUR WEBSITE IN ANY MANNER. YOU ALSO HEREBY AGREE THAT YOUR WEBSITE WILL NOT CONTAIN ANY CONTENT OF OUR WEBSITE OR ANY MATERIALS WHICH ARE PROPRIETARY TO VITA-MIX, EXCEPT: (A) WITH OUR PRIOR WRITTEN PERMISSION OR (B) IF THE MATERIALS WERE OBTAINED BY YOU VIA THE VITA-MIX BUSINESS BUILDING SITE IN ACCORDANCE WITH THE PROVISIONS HEREOF OR THE POLICIES OR INSTRUCTIONS THEREIN. YOU FURTHER HEREBY AGREE THAT YOUR DOMAIN NAME OR PAGE ADDRESSES DO NOT CONTAIN THE WORDS VITA-MIX, INC. OR ANY VARIATION THEREOF (e.g. VITAMIX). YOU FURTHER HEREBY AGREE THAT YOUR WEB PAGES WILL NOT USE VITA-MIX, OR ANY VARIATION THEREOF IN KEYWORD META TAGS IN YOUR PAGES' HTML CODE TO AID IN SEARCH ENGINE MARKETING AND RANKINGS.
Licenses and usage of Vita-Mix logos and trademarks
- We grant you a non-exclusive, non-transferable, revocable right to 1) access our website through the Links solely in accordance with the terms of this Agreement and 2) to use our marks and logos (the "Marks") only in the format that we have provided to you (or such other images or messages for which we grant prior express written permission, hereafter "Pre-approved Images") solely in connection with such Links and only as permitted herein. You may not alter, modify, or change the Marks or Pre-approved Images or message in any way. You are only entitled to use the Marks to the extent that you are a member in good standing of the Affiliate Program. You cannot make any use of any Marks or any Pre-approved Images for purposes other than Links without first submitting a sample to us and obtaining our prior written consent. You agree that you will not in any way dispute, or do anything to impair the validity of; our rights in our Marks or, our ownership and right to use and control the use of our Marks. You further agree that all permitted uses of our Marks by you shall inure to our benefit of and on behalf of us and agree that nothing in this Agreement shall give you any right, title or interest in our Marks other than to use the Marks strictly in accordance with this Agreement. You agree not to use the Marks in any manner that is disparaging, portrays us in a negative light or that may adversely affect the goodwill of Vita-Mix or its Marks. We may revoke your status at any time by giving you written notice.
- You grant us a non-exclusive license to utilize your names, titles, and logos ("Affiliate Marks") to advertise, market, promote, and/or publicize in any manner, provided however, that we shall not be required to do so. This license shall terminate upon the date of termination of this Agreement.
Representations and warranties
You hereby represent and warrant to Vita-Mix as follows:
- You will use the Links only as authorized in this Agreement. This Agreement has been duly and validly executed and delivered by you and upon our acceptance of your Affiliate Application constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms. Your execution, delivery, and performance of this Agreement, and your consummation of the transactions contemplated hereby, will not, with or without notice, lapse of time, or both, conflict with or violate any provision of law, rule, or regulation to which you are subject, any provision of your governing documents, or any agreement or other instrument applicable to you or binding upon your assets or properties. You are the sole and exclusive owner of the Affiliate Marks and have the right and power to grant us the license to use the Affiliate marks in the manner contemplated herein, and such grant does not and will not breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. No consent, approval, or authorization of, exemption by, or filing with any governmental authority or third party is required in connection with the execution, delivery, and performance of this Agreement or any other action taken by you under this Agreement.
- To the best of your knowledge there is no pending or threatened claim, action, or proceeding against you or any affiliate of yours with respect to the execution, delivery, or performance of this Agreement, or the Affiliate Marks. To the best of your knowledge there is no basis for any such claim, action, or proceeding.
Modification
We reserve the right to modify any terms and conditions contained in this Agreement at any time. A change notice will be posted on our website. Modifications may include, but are not limited to, changes of the scope of available commissions, commission schedules, payment procedures, and Affiliate network rules. If any modification is unacceptable to you, your only recourse and sole remedy is to terminate this Agreement. Your continued participation in the Affiliate network following our posting of a change notice or new agreement on our website will constitute your binding acceptance of the change.
Confidentiality
Each of the parties hereto agrees to keep confidential all information obtained by such party as a result of entering into this Agreement including, without limitation, business and financial information, product designs, customer and vendor lists; and pricing and sales information, concerning us, you, or any of your or our affiliates. Such information shall not be utilized, directly or indirectly by either party for any purpose except as contemplated by this Agreement, or except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliates. Notwithstanding the foregoing, each party is hereby authorized to delivery a copy of any such information to any person pursuant to an order issued by any court or administrative agency of competent jurisdiction, or otherwise as required by applicable laws, rules, regulations, or legal processes.
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 AFFILIATE NETWORK, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE NETWORK WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
Indemnification
You hereby agree to indemnify and hold harmless Vita-Mix and our 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 legal fees, any or all of the foregoing hereinafter referred to as "losses") insofar as such losses, or actions in respect thereof, arise from or are based on:
- any claim that our use of the Affiliate Marks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party or any failure or breach of any representation, warranty, covenant, or agreement made by you herein, any misuse of our Marks, or
- any claim related to your website, including, without limitation, content therein not attributable to Vita-Mix.
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 websites that are similar to, or compete with, your website. You have independently evaluated the desirability of participating in the Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
Assignment
You may not assign this Agreement or your rights and obligations hereunder by operation of law or otherwise, without our prior written consent; however, we shall have the right to assign this Agreement or our rights or our obligations, or any or all of the foregoing, hereunder to any of our related or affiliated entities. Subject to that restriction, this Agreement will be binding on, for the benefit of, and enforceable against the parties and their respective successors and assignees.
Waiver of Default
Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right subsequently to enforce such a provision or any other provision of this Agreement.
Affiliate's Data
You agree that Vita-Mix may (i) retain and process all of your personal information given by you, for the purposes of marketing, business creation and development, management and other matters relating to Vita-Mix's business (ii) record this information both manually and/or electronically and (iii) disclose and transfer this personal information to other members of Vita-Mix's group and to other persons for the purposes of Vita-Mix's business.
Information given in accordance with the previous paragraph or in order for Vita-Mix to carry out its obligations under this Agreement will be transferred to countries outside of the European Union ("EU"). By way of example our servers may be located in a country outside of the EU. We also share information between our group companies, which are located in countries worldwide. These countries may not have similar data protection laws to the UK. If we transfer your information outside of the EU in this way, we will take steps with the aim of ensuring that your privacy rights continue to be protected. By agreeing to these terms you consent to Vita-Mix transferring your information outside of the EU in this way.
Competition
During the term of this Agreement you shall not, directly or indirectly, in any capacity, sell or market products which compete with those of Vita-Mix.
Commercial Agents (Council Directive) Regulations 1993 ("the Regulations")
You and Vita-Mix do not intend that the Regulations should apply to this Agreement, but if and insofar as the Regulations do apply, the indemnity provisions of Regulation 17 shall apply and the compensation provisions in Regulation 17 shall not apply.
Governing law
This Agreement will be governed by the laws of the United States and the State of Ohio, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in federal or state court located in Cleveland, Ohio, and you irrevocably consent to the venue and jurisdiction of such courts.
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