Affiliate Agreement
As much as legal documents are important, what truly motivates us is our desire to do great work with great people and to develop a relationship of mutual benefit, respect, and trust. We believe that clear goals, excellence, and honesty are the keys to a great business relationship and therefore we have an interest in treating each other with these values at all times. In that spirit:
This is a legally binding agreement (the “Agreement”) between MUSCULATION-PRISE-DE-MASSE.COM INC. (“we”, “us”, “our”, “Dr. Muscle” or the “Company”) a Quebec (Canada) corporation and you (“you”, “your”, “yours”, or the “Affiliate”), hereinafter collectively referred to as the “Parties”.
By submitting the online application, and by referring visitors, 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, including any changes to this agreement or additional policies incorporated by reference which Dr. Muscle may make in its sole discretion in the future.
Overview
The purpose of this Agreement is to allow you to promote Dr. Muscle by HTML linking between your website and the Company website for the purpose of referring potential customers to Dr. Muscle and receiving payment in return.
Approval
You must be approved by the Company before your participation in its affiliate program (the “Program”). Company reserves the right to withhold or refuse approval for any reason and without providing any further detail as to the reason(s) of the application rejection. Once you have been approved, your continued right to participate is conditioned upon the ongoing compliance with the terms and conditions of this Agreement. Failure of the Affiliate to observe the terms and conditions of this Agreement or privacy policy posted on Company’s website will disqualify Affiliate from participating in the Program. Affiliate shall promptly notify Company in the event of a material change in its business practices or strategy. Approval may be withdrawn by Company, at any time and for any reason.
Affiliate Obligations
We will reject your application or cancel an existing Affiliate account if we determine that your site is 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.
Includes “Dr. Muscle” or variations or misspellings thereof in its domain name.
Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
Contains software downloads that potentially enable diversions of commission from other Affiliates in our Program.
Is in violation of any other term or condition referenced herein.
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 Dr. Muscle or any other affiliated business.
All Affiliates that engage in email marketing must have the consent of the recipient to send such email and shall maintain records evidencing such consent including, without limitation: (a) Subscriber opt-in date; (b) Registration source; (c) E-mail address; (d) Privacy Policy of Source Site; (e) Any other information collected; and (f) Affiliate will supply proof of such records to Company within ten (10) days of a request.
Affiliate website(s) must be fully functional at all levels. Affiliate’s policies must be compliant with state and federal laws and regulations including but not limited to the CAN-SPAM Act of 2003; spawning process pop-ups are prohibited.
Affiliate Control Panel and Affiliate Link
As a member of our Affiliate Program, you will have access to your Affiliate Control Panel. You may not share your access details (login email and password) with any other person. You are responsible for any actions taken through the use of your access details.
In your Affiliate Control Panel, you will have access to:
Your performance data.
The ability to update your contact and payment information.
Your “affiliate link”.
In order for us to accurately keep track of all guest visits from your site to ours, you must use the HTML link code (the “affiliate link”) that we provide. We are not responsible for any missed conversions if you modify any supplied link in any way.
Payment
Affiliate promotions are paid based on sales. Affiliates are paid in return for their promotional efforts a percentage of every sale to customers they refer (including any recurring billing). Affiliates are paid on an ongoing basis, but all sales revenue are subject to a 30-day hold to allow for refunds and chargebacks. Dr. Muscle may, in its discretion, withhold payments until such time as referred customers have completed payment for our service. Payments shall be made by digital payment (such as PayPal). Digital Payments sent to a valid email address cannot be reversed or retransmitted for any reason. Affiliate is responsible for entering a valid PayPal email address upon submitting the online application, and for keeping that email address up to date.
Company shall compile and calculate the data required to determine your eligible payment. This information will be available for your review via the Affiliate Control Panel. Any questions or disputes regarding the data or payout provided by Company must be submitted in writing within five (5) business days from the most recent payment date, otherwise the information will be deemed accurate and accepted as such by you.
Company will only pay Affiliates for commissions that are earned and tracked while active members of the Program. Any Affiliate that is removed from the Program because of non-compliant behavior will no longer receive commissions from any referred customers. Affiliates who voluntarily close their account will cease earning commissions immediately, as will any Affiliate who is removed due to cessation of promotional activity (no visible links or click activity for a period of one (1) year or more) and is not responsive to outreach attempts.
Any missing payments, regardless of method of transmission or cause of loss, are subject to a waiting period of one hundred eighty (180) days from issuance before a replacement may be generated. In addition to any other remedies that may be available to Company, in the event of any breaches by you of this Agreement, you shall forfeit your rights to any amounts owed by Company to you.
Dr. Muscle Rights and Obligations
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 actively monitors traffic for fraud. If we detect fraud, your account will be made inactive pending further investigation. Fraudulent traffic includes but is not limited to: click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of Company; fraudulent leads as determined and reported by Company’s clients; use of fake redirects, automated software, and/or other fraudulent mechanisms to generate payable actions from the Program, and no activity or illicit activity seen in referred accounts.
If you inflate leads or clicks by fraudulent traffic generation, as determined solely by Company, you will forfeit your entire commission for the Program and your account will be terminated. In addition, in the event that you have already received payment for fraudulent activities, Company reserves the right to seek credit or remedy from future earnings or to demand reimbursement from you.
Dr. Muscle reserves the right to terminate this Agreement and your participation in the Affiliate Program immediately and without notice to you should you come under criminal investigation, should you commit fraud in your use of the Affiliate Program, or should you abuse this program in any way. If such fraud or abuse is detected, Dr. Muscle shall not be liable to you for any commissions.
Term and Termination
This Agreement will begin immediately upon your submission of the application, and will continue unless terminated. Either you or we may end this Agreement with or without cause, immediately. Termination notice may be provided via email and if so you must immediately cease all advertising activities. All commissions then due will be paid during the next billing cycle, subject to any final accounting and quality assurance verification. Should any violations of Program terms be discovered, any pending payments may be forfeited. Any provisions or clause in this Agreement that, by its language or context, implies its survival shall survive any termination or expiration of this Agreement.
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, (sent to the email address provided in the course of your registration with the Company). Modifications may include, but are not limited to, changes in the payment procedures and the Affiliate Program rules. If any modification is unacceptable to you, you may terminate this Agreement. Your continued participation in the Program following the email of the change notice and the new Agreement on our site will indicate your agreement to the changes.
Promotion Restrictions
Any promotion mentioning Dr. Muscle could be perceived by the public or the press as a joint effort. Therefore, to avoid confusion, the following promotional restrictions are to be followed by all participating Affiliates:
Certain forms of advertising are always prohibited by Company. 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 email, postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once.
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 Dr. Muscle 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.
You may post to newsgroups to promote Dr. Muscle so long as the news group specifically welcomes commercial messages.
At all times, you must clearly represent yourself and your web site(s) as independent from Company and its clients.
If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Affiliate Program.
Affiliates that advertise among other keywords or exclusively bid in their pay-per-click campaigns on keywords such as Dr. Muscle, Dr. Muscle App, drmuscleapp.com, www.drmuscleapp.com, Dr Muscle, or any misspellings or similar alterations of these – be it separately or in combination with other keywords – will be considered trademark violators, and will be terminated from our Affiliate Program. We reserve the right to expel any trademark violator from our Affiliate Program without prior notice, and on the first occurrence of such pay-per-click bidding behavior.
Affiliates may not bid on any variations of Dr. Muscle brand terms in any keyword based pay-per-click search engines, including, without limitation, Google, Bing, and Yahoo. This includes any “Trademark Plus” (TM+) bidding such as “Dr. Muscle discount” or “Dr. Muscle promo code”.
Affiliates are prohibited from keying in prospect’s information into the signup form with the intent of misrepresenting or falsifying leads. 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 Company’s site (i.e., no page from our site or any Dr. Muscle’s content or branding is visible on the end-user’s screen). As used herein, “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of Affiliate and non Affiliate commission 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, Bing, Yahoo, AOL and similar search or directory engines); (c) set commission tracking cookies through loading of Company’s site in IFrames, hidden links and automatic pop ups that open Company’s site; (d) targets text on websites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; or (e) removes, replaces or blocks the visibility of affiliate banners with any other banners, other than those that are on websites 100% owned by the owner of the application.
Affiliates doing business within the EU are required to be compliant with GDPR regulations regarding data protection enacted on May 25, 2018. Company reserves the right to review your compliance as necessary. Failure to prove compliance may result in termination from the Program.
Any pending balances owed to you will not be paid if your account is terminated because of unacceptable advertising or promotion.
Grant of Licenses
Company grants 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 our Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of Company and the goodwill associated therewith (including any data derived from the Program) will inure to the sole benefit of Company.
Confidentiality & Non-Disclosure
You agree to use our Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing our Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Notwithstanding the foregoing, Affiliate agrees that Company may divulge its personal or otherwise Confidential Information to an agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Affiliate has violated this Agreement or any applicable law or regulation.
The Affiliate shall be responsible for any breach of this provision that is caused by any of its employees, affiliates, representatives or agents and such party agrees to indemnify and hold harmless the other party from and against any liabilities, claims, damages, losses, costs and expenses resulting, directly or indirectly, from any breach by a party, or any of its employees or independent contractor, of any provision of this Agreement. The obligations of this Section shall survive termination of this Agreement for a period of one (1) year.
Proprietary Materials
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.
Representations and Warranties
You represent and warrant that:
This Agreement has been duly and validly communicated and agreed to 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.
Disclaimer
Company makes no express or implied representations or warranties regarding its service, web site, and mobile app or the products or services provided therein, any implied warranties of Company 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 service, site or mobile app will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors.
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 Company’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.
Indemnification
You hereby agree to indemnify and hold harmless Company and their 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 you infringed 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.
You agree to indemnify, defend and hold harmless the Company from any and all claims, actions, damages, and liabilities (excluding, without limitation, attorneys’ fees, costs and expenses) arising (i) through the Affiliate’s gross negligence ; (ii) out of any claim that the materials or deliverables, or any portion thereof, in fact infringes upon or violate any proprietary rights of any third party, including but not limited to patent, copyright and trade secret rights; or (iii) from a breach or alleged breach of any of your representations, warranties or agreements herein.
You will immediately notify Company of any current, impending, or potential legal action against it by a third party for matters relating to email, email complaints, email deployment, and violations of CAN-SPAM.
Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder.
Independent Contractor
You agree that you are an independent contractor, and nothing in this Agreement will create any partnership of partners, principal and agent, joint-venture partners, agency, franchise, sales representative, or employment relationship between you and Company. You will have no authority to act for, bind, commit, make, or accept any offers or representations on our behalf. You will not make any statement, whether on your site or any other site or otherwise, that reasonably would contradict anything in this section.
Miscellaneous
The section and subsection headings used in this Agreement are for convenience only and will not be used in interpreting this Agreement, and shall not limit or otherwise affect the terms of this Agreement. Both parties have had the opportunity to review this Agreement and neither party will be deemed the drafter of this Agreement for the purposes of interpreting any ambiguity in this Agreement. The parties agree that this Agreement may be signed by manual or facsimile signatures and in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. In the event that any provision of this Agreement will be determined to be illegal or unenforceable, that provision will be first revised to give the maximum permissible effect to its original intent or, if such revision is not permitted, that specific provision will be eliminated so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign its rights or obligations under this Agreement to any party, except, that the assignment to a third party who obtains all or substantially all of the business or assets of a party shall be permitted subject to the reasonable consent of the other party (i.e. the non-assigning party). You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
Governing Law and Dispute Resolution
This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of of the Province of Quebec (Canada). For all purposes of this Agreement, the Parties consent to exclusive jurisdiction and venue in the courts located in Quebec (Canada) and agree that any action or proceeding concerning this Agreement shall be brought exclusively in such courts.
The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. 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.
Affiliate shall comply with all applicable laws, rules and regulations pertaining to this Agreement, including without limitation, FTC requirements, GDPR regulations, CAN-SPAM, and Dr. Muscle brand guidelines.
Entire Agreement
This Agreement and any exhibits, schedules or attachments represents the entire agreement between you and us and supersedes any previous arrangements, oral or written.