This AFFILIATE AGREEMENT (“Agreement”) shall set forth the material terms between you (“Affiliate” or “you”), and Forecast Care Services, LLC (“Company”, “our”, or “us”), which will govern your participation in the Company’s affiliate marketing program (“Affiliate Program”), through which the Company engages persons to market its goods and services provided under its brands: “Admired,” “Admired Wellness,” and “Admired.com” (the “Brands”).
- Program Registration/Acceptance of Agreement
READ THIS ENTIRE AGREEMENT BEFORE APPLYING TO AFFILIATE PROGRAM.
Prospective Affiliates must apply to the Affiliate Program [through our online application at the following web address https://www.admired.com/affiliate-info/ and registering with Tapfilliate (“Affiliate Network”) and applying to the Program through the Affiliate Network’s platform.
After you apply to the Affiliate Program, the Company will have the option of approving or declining your application in its sole discretion. If approved, the Company will notify you via the E-mail address provided on your application, and you will have already acknowledged that you agree to all the terms of this Agreement having checked the box stating, “Yes, I have read and accepted the terms and conditions of this Agreement” and clicked the “Apply to” button. If the Company approves your application, you will become an Affiliate and be bound by the terms and conditions set forth below.
- Term. After the Company approves the Affiliate for participation in the Affiliate Program, this Agreement shall become effective and remain in full force and effect until terminated by the Affiliate or Company.
- Termination by Affiliate. The Affiliate may cease participating in the Affiliate Program and terminate this Agreement at any time, with or without cause. Affiliate will be entitled to receive all accrued and unpaid commissions from Qualifying Sales (as defined below) as of the date of termination, except as otherwise provided in this Agreement.
- Termination by Company. Even after the Company has approved the Affiliate for participation in the Affiliate Program, the Company reserves the absolute right to rescind or terminate the Affiliate and this Agreement for any reason in its sole and absolute discretion. In the event that Company terminates this Agreement due to the Affiliate’s breach of this Agreement, the Affiliate shall not be entitled to any unpaid commission as of the date of termination.
- Affiliate’s Duties After Termination. Immediately upon termination of this Agreement, Affiliate shall remove all links to Company’s website and references to the Brands from their website or applicable platform.
- Services/Affiliate Activities.
- Affiliate Activities. Pursuant to this Agreement, Affiliate may, subject to Section 4, advertise the Company’s Brands by referring and directing customers to Company’s website using a Properly Formatted Link (as defined below) through certain mediums which may include, but is not limited to, (i) social media platforms (e.g., Facebook, Instagram, Tiktok); (ii) blogging; (iii) referral links; (iv) websites and microsites; (v) email lists; (vi) videos, podcasts, and webinars; and (vii) product and/or experience reviews (“Affiliate Activities”).
- Prohibited Activities. The Affiliate shall not: (i) link or promote their own or any third-party’s website through the use of the Company’s Brands, (ii) create the impression that Affiliate is an agent, employee, or business partner of Company, which would include, but is not limited to, referring to Affiliate and Company together as “we” or “us,” (iii) display or use any graphic, image, or text from the Company’s website unless written authorization is given to the Affiliate by Company, (iv) use unauthorized coupons and/or promotion codes, (v) promote the Brands and products or services sold under the Brands or use advertising materials related to the Brands through unsolicited emails or facsimiles, hidden frames, pop-up and pop-under advertising anywhere except for a website owned by Affiliate, (vi) use any method of mass communication, including, but not limited to, text messages, e-mails, newsgroup postings, radio, television, press releases, or chat room communities, or (vii) without the Company’s prior written consent, use the Company’s name, Brands, logos, or trademarks or an reasonably similar variant or derivative thereof.
- License to Use Company Materials. If Company provides Affiliate with marketing material related to the Brands to use as part of the Affiliate Activities or authorizes the Affiliate to use the Company’s logos or trademarks, Affiliate acknowledges that they acquire no right, title, or interest in the provided materials or trademark and that the Affiliate will only a hold a non-transferrable license, which the Company may revoke at any time and which will expire automatically upon termination of this Agreement.
- Compliance with Laws.
You hereby agree that your Affiliate Activities will comply with the Federal Trade Commission’s (the “FTC”) Guides Concerning Endorsements and Testimonials (“Endorsement Guides”), and that you have reviewed the Endorsement Guides before applying to the Affiliate Program and entering this Agreement.
You further agree to participate in any training designed to ensure compliance with the Endorsement Guides that the Company may require from time to time. In performing Affiliate Activities, the Affiliate shall:
- Disclose Connection to Company. You must clearly and conspicuously disclose your “material connection” with us, making it clear that you are a paid advertiser and that you have received free products, services, and travel from Company. “Material connections” may be defined as any connection between an Affiliate and a marketer that could affect the credibility consumers give to that Affiliate’s statements. Important examples of “material connections” include benefits or incentives, such as monetary compensation, loaner products, free products or services, in-kind gifts, or special access privileges provided by a marketer to an Affiliate.
- Maintain Clear and Prominent Disclosure. The above disclosure (Section 4(a)) must be placed in plain sight and in close proximity to any audio or visual communications that you make about us, our Brands, and our products or services. You may not bury the disclosure in a link or place the disclosure in a string of hashtags or other disclosures. We require this disclosure regardless of any space limitations of the platform (like Twitter), where you can use hashtags for the disclosure (like #ad or #sponsored).
- Give Your Honest and Truthful Opinion. Although we want your Affiliate Activities to be authentic and reflect your actual experiences, your Affiliate Activities should only include factual statements about our products/services which you know for certain are true and the Company can prove or verify. In addition, all Affiliate Activities must be in good taste and free of inappropriate language and/or any content that promotes bigotry, racism or discrimination against an individual based on race, gender, religion, nationality, disability sexual orientation or age.
- Respect Intellectual Property Rights. Intellectual Property is the group of legal rights to works that people create or invent. Intellectual property rights typically include copyright, trademark, and trade secret rights, as well as the right to use someone's name, likeness or voice. Examples include photographs, videos, music, trademarks/logos, personal names/likenesses (including celebrities’ names/likenesses), and writings. Your Affiliate Activities will be original and created solely by you and will not include the intellectual property of other parties, including any third-party music, photographs, artwork, trademarks, logos, or slogans.
- Comply with Social Media Platform Standards. Your Affiliate Activities will comply with the rules of the applicable social media platforms.
- Comply with Other Laws and Policies. Your Affiliate Activities will comply with all other applicable laws, rules, and regulations.
- Monitoring Affiliate Activities.
You understand that [the Company/Affiliate Network] may monitor your Affiliate Activities for compliance with this Agreement. We have the right to address noncompliant Affiliate Activities by taking any of the following actions alone or in combination:
- Requiring you to fix the noncompliance;
- Withholding payment of compensation; and/or
- Terminating the Agreement.
- No Representations Regarding Income Potential. The Company makes no representations and warranties regarding potential income that may result from participation in this Affiliate Program and specifically disclaims any and all warranties relative to earning potential from your participation in this Affiliate Program.
- Qualifying Sales. You will receive a monthly commission payable on the last Monday of every month in connection with “Qualifying Sales”. For the purposes of this Agreement, a Qualifying Sale is a sale generated as follows: (i) the Affiliate posted a Properly Formatted Link, which directed the customer to the Company’s website, (ii) the customer purchased a product/service from the Company, and (iii) the customer pays the Company in full.
A Properly Formatted Link follows the guidelines provided by either the Company or the Affiliate Network. To enable us to credit you with commissions, you must properly format the links between your Affiliate Activities and our website. Proper formatting includes but is not limited to the use of the appropriate URL for each link from your Affiliate Activities to our website. Affiliate acknowledges and agrees that we will not be liable to Affiliate for the failure to properly format links.
- Non-Qualifying Sales. You will not receive a commission for Non-Qualifying Sales. For the purposes of this Agreement, a Non-Qualifying Sale is any sale that (i) does not meet the definition of a Qualifying Sale; (ii) is generated through unauthorized coupons/promotion codes, (iii) results from an existing patient follow-up, (iii) is a prescription refill only, (iv) is a fraudulent order, (v) is a cancelled order, (vi) is a returned order, (vii) is generated based advertising activities not permitted under this Agreement, or (viii) was generated while the Affiliate is in breach of this Agreement.
- Amount of Commission. Commissions will be calculated based on the “Net Sale” amount after deducting any taxes, surcharges, fees, returns, cancellations, fraudulent orders or chargebacks. Net Sale is the amount received by the Company from the customer, that includes deductions for discounts or coupons, less the amount collected by us for taxes, duties, shipping, and handling. Your precise payout rate is twenty-percent (20%) of the Net Sale.
- Charge-Backs. Commissions shall be subject to “Charge-back” for all Non-Qualifying Sales and as further provided by the Affiliate Network’s terms and conditions. Affiliate acknowledges that the Company has no obligation to pay or authorize commissions for orders placed after the termination of this Agreement. For the avoidance of doubt, we reserve the right to reverse commissions for referrals resulting directly or indirectly from your violation of any term or condition of this Agreement.
During the term of this Agreement and for a period of two years after termination of this Agreement, Affiliate may not directly or indirectly: (i) engage in any business in or related to the Company’s line of business, (ii) solicit any customer, to alter or limit customer’s business relationship with the Company, (iii) hire or solicit the employment (or otherwise retain or solicit the retention of the services) of any of the Company’s employees, or (iv) use Company’s name, product, brand, products, services, or training to market and/or bring clients into the Affiliate’s or any third-party’s business. To “engage” in any business means (x) to render services or provide any assistance concerning any aspect of the business or (y) to own, manage, operate, or control (or participate in the ownership, management, operation, or control of) an enterprise. The Parties agree that the agreement regarding noncompetition, including any separate noncompetition agreement into which the Parties may enter, is a material part of this Agreement. The Parties further the agree that the provisions of this Section 7 shall survive termination of this Agreement.
You understand that you may be exposed to information about the Company’s products, services, advertising, and marketing/brand strategies and ideas that may not have been disclosed to the public (collectively, the “Confidential Information”). You agree to maintain the confidentiality of all Confidential Information disclosed to you (or which otherwise becomes available to you) in connection with your Affiliate Activities, and will hold all Confidential Information in strict confidence. You further agree to refrain from disclosing or using Confidential Information for any purpose other than engaging in Affiliate Activities under this Agreement. The obligation to maintain the confidentiality of Confidential Information shall survive termination and continue for five (5) years. The Parties further the agree that the provisions of this Section 8 shall survive termination of this Agreement.
- Injunctive Relief
Affiliate acknowledges that disclosure of any Confidential Information, breach of any of the non-competitive covenants or agreements contained herein or solicitation of the Company’s customers or employees in violation of this Agreement will give rise to irreparable injury to Company. Accordingly, Company may seek and obtain injunctive relief against Affiliate for breach of the unauthorized disclosure of Confidential Information or any non-compete provisions contained herein. Affiliate further agrees that the covenants contained in Sections 7 and 8 of this Agreement are necessary for the protection of the Company's legitimate business interests and are reasonable in scope and content and such covenants are adequately supported by the consideration to Affiliate hereunder.
- Relationship of the Parties
You understand that you are an independent contractor of Company, and this Agreement does not create any association, partnership, joint venture, employee, or agency relationship between you and us for any purpose. You have no authority (and will not hold yourself out as having authority) to bind Company and will not make any agreements or representations on our behalf without our prior written consent. In addition, you acknowledge and agree that Company is not responsible for withholding or paying any income, payroll, Social Security, or other taxes, making any insurance contributions, including unemployment or disability, or obtaining worker's compensation insurance on your behalf. You are solely responsible for all such taxes and contributions, including penalties and interest. You are not eligible under this Agreement to participate in any of our employee benefits, such as time off, medical, profit sharing, or retirement benefits.
If to Company: Forecast Care Services, LLC
1201 N Market St, STE 111
Wilmington, DE 19801
If to Affiliate: To the name, address, and e-mail
provided on Affiliate’s application
- Prohibited States. Residents in the following states AR, DC, DE, ID, KS, LA, NM, WV (each a “Prohibited State”) are ineligible to participate in the Affiliate Program. By applying to be an Affiliate and assenting to this Agreement, you represent that you are not a resident of a Prohibited State. In addition, if at any time following Your enrollment in the Affiliate Program, you become a resident of a Prohibited State, you will become ineligible to participate in the Affiliate Program. This Agreement will automatically terminate, on the date You establish residency in that state. In addition, you must promptly notify Company of your residency in a Prohibited State by providing us written notice, which includes e-mail.
- Attorneys’ Fees. If Affiliate or Company breaches this Agreement as determined by a court of competent jurisdiction, the non-breaching party shall be entitled to its reasonable attorneys’ fees, expert fees, and costs, incurred as a result of any such breach, dispute, or litigation.
- Subject to Change/Modification. Company reserves the right in its sole and absolute discretion, to modify any terms and conditions of the Affiliate Program and this Agreement upon notice to the Affiliate. Notice of any changes may be given via E-mail to the Affiliate or by posting such changes in the Affiliate Program sections of the Company’s website. Such changes and modifications will take effect upon transmission of E-mail or posting on the Company’s website. The Affiliate may terminate participation in the Affiliate Program in the event that any of these modifications are unacceptable to the Affiliate and such termination shall be the Affiliate’s sole and exclusive remedy. Affiliate’s continued participation in the Affiliate Program following such modifications, will be deemed an acceptance of the Company’s changes and modifications to the Affiliate Program and/or this Agreement.
- Indemnification. Affiliate hereby agrees to indemnify and hold the Company, and all of its owners, stockholders, members, officers, directors, employees, contractors, affiliates, agents, successors and assigns harmless from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto, that the Company may incur and which are based in whole or in part upon the Affiliate’s participation in the Affiliate Program, including, but not limited to, any claims that any of the Affiliate’s Affiliate Activities violate any trademarks, patents, and other proprietary of a third party, the Affiliate’s failure to comply the FTC’s Endorsement Guides, Affiliate’s breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies of participation in the Affiliate Program, or any claim related directly or indirectly to the Affiliate’s Affiliate Activities.
- Entire Understanding. This Agreement sets forth the entire agreement and understanding between the parties with respect to the Affiliate Program and supersedes any and all prior discussions, understandings, agreements, representations, warranties or covenants between the parties related to the Affiliate Program only.
- Governing Law. This Agreement shall be interpreted under the laws of the state of Florida. Any and all legal actions relative hereto shall be in the state and federal courts of Hillsborough County, Florida.
- Assignment. This Agreement is only for the benefit of the Company and Affiliate. The Affiliate shall have not have the right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void.
- Severability. Each provision and section of this Agreement shall be considered severable. If a court or agency of competent jurisdiction rules any provision invalid, illegal, or otherwise unenforceable, such provision or section shall be given the maximum permissible effect in accord with the stated intention of the parties hereto, and such unenforceability or invalidity or illegality shall not affect the remaining provisions of this Agreement, which shall continue in full force and effect and bind the parties according to its terms.
- Waiver. This Agreement may only be amended by a writing signed by the authorized representative of each of the parties, except as otherwise set forth herein. Any waiver of a breach or default under this Agreement shall not constitute a waiver of any subsequent or other breach or default and shall not serve to modify the agreements set forth herein.