|Conversion action||Online purchase with processed valid payment|
|Cookie days||30 day(s)|
|Commission type||Percent of Sale|
|Additional terms||15% commission on full price items for a first time customer order within 30 days of clicking an affiliate's link|
1. Appointment. The Advertiser hereby appoints the Influencer/Affiliate as its non-exclusive representative to provide the Services (as hereinafter defined) to Advertiser during the Term (the “Services”). In connection therewith, Advertiser will provide the following to Influencer/Affiliate: (a) AMMD’s initial influencer kit; (b) access to AMMD’s Affiliate and Social Media team; (c) a personalized discount code for Influencer/Affiliate to share with followers (Note: only one promo code can be used per order, and promo codes do not apply to carts containing kits, programs, or discounted items); (d) a personalized link to track and earn commission and; (e) samples of AMMD product in accordance with Section 5.
2. Term; Termination. The term of this Agreement will commence on the Effective Date and continue thereafter until terminated. Either party may terminate this Agreement upon ten days prior written notice if the other party breaches this Agreement and does not cure such breach within such time period, in addition to any right or remedy that may be available to the party under this Agreement or applicable law. In addition, if Influencer/Affiliate breaches this Agreement, the Advertiser may (a) immediately suspend, limit or terminate the Influencer’s/Affiliate's access to any Advertiser account and/or (b) instruct the Influencer/Affiliate to cease all promotional activities or make clarifying statements, and the Influencer/Affiliate shall immediately comply. Finally, either party may terminate this Agreement at any time without cause upon thirty days prior written notice to the other party.
3. Services. During the Term, Influencer will do all of the following (collectively, the “Services”): (a) endorse and promote Advertiser’s products and services via the following Influencer social media accounts: Instagram, Facebook, Twitter, YouTube, Pinterest, and Influencer’s blog/website; (b) make two or more posts to Influencer’s Instagram story per month and one or more posts to Influencer’s Instagram Feed per month, wherein each post/story/feed must clearly and prominently display Advertiser’s product and the tag “@AmyMyersMD”; (c) comply with all applicable federal, national, state, provincial, local and other laws, rules, regulations and guideline, including without limitation all FTC regulations and guidelines (including, without limitation the FTC’s Revised Endorsement Guidelines) (collectively, the “Laws”); (d) provide Advertiser with a completed W9 form, if applicable, upon execution of this Agreement; (e) abide by the rules of the relevant social media platforms, and all posts/stories/feeds are subject to the Advertiser's prior written approval; and (f) ensure that all blog posts, social media statuses, tweets, and/or comments are in good taste and free of inappropriate language and/or any content promoting bigotry, racism or discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age. The Influencer shall bear all expenses associated with its provision of the Services.
4. Confidentiality. Influencer/Affiliate acknowledges and agrees that they have been placed in a position of trust which may expose them to certain of the Advertiser’s confidential information, trade secrets, and other proprietary information including, but not limited to, the existence, nature and terms of this Agreement, pricing, technical data, special processes, methods, know-how, formulas, research and marketing data, marketing information, customer lists, supplier lists and related information, designs, patent applications, copyrights, trademarks, procedures, techniques, discoveries and technology, financial information, and business plans and strategies, whether developed by the Advertiser or acquired from a third party under a confidentiality agreement (collectively, the “Confidential Information”). Influencer/Affiliate acknowledges and agrees that the Confidential Information is critical to the Advertiser’s success and is the exclusive property of Advertiser. The Influencer/Affiliate will not, without the Advertiser’s prior written consent, (a) use the Confidential Information for any purpose other than providing the Services or (b) disclose, divulge, or disseminate the Confidential Information to any person, party or entity. If Influencer/Affiliate breaches any of its obligations with respect to confidentiality and unauthorized use of Confidential Information hereunder, the Advertiser will be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as money damages notwithstanding anything to the contrary contained herein.
5. Commissions. In return for the Services, Advertiser will provide Influencer/Affiliate with a personalized promo code that can be used for first time orders at the Advertiser’s store to help them earn commission. In addition, there are opportunities for Influencer to earn free products in exchange for social media content.
A. All Commissions will be calculated based on a Qualified Purchase (as defined herein), less returns and subject to Commission accruing pursuant to Section 4(B) below. A “Qualified Purchase” does not include any of the following purchases: (a) by a Referred Customer that has transferred from any AMMD partner or subsidiary; (b) by a Referred Customer who is also associated with any AMMD reseller, referral, or other program; (c) by a Referred Customer that is not up to date on its payments or is subject to a refund, referral, or other program; (d) a purchase that was completed prior to the Affiliate joining the Affiliate Program or was not tracked properly through an Influencer’s Affiliate Link; (e) a purchase by a Referred Customer that has not been in good standing for a period of at least thirty (30) days or is in violation of AMMD’s Terms of Service, Acceptable Use Policy, or other applicable policies at the time the Commission accrues; (f) a purchase that AMMD suspects, in its sole discretion, is the result of fraud, which shall include but is not limited to, the use of software that generates real and fictitious information, multiple accounts from the same customer, or the referral of accounts that do not comply with this Agreement; (g) a purchase referred by an Influencer/Affiliate that has an excessive cancellation rate as determined in AMMD’s sole discretion; (h) a purchase by a Referred Customer if the Referred Customer was offered or received coupons, refunds, credits or discounts from the Affiliate; (i) a purchase by a Referred Customer if the Influencer/Affiliate or Referred Customer is in or is promoting a business-opportunity program, as determined by AMMD in its sole discretion; (j) a purchase by a Referred Customer who received a popup with a discounted offer, while leaving AMMD’s website during their purchase; (k) a purchase by a Referred Customer engaging in "Domain Speculation," which is determined by the identification of two (2) web hosting accounts with the same Referred Customer's name, email address, or other identifying characteristic as determined by AMMD and/or the identification of two (2) or more web hosting accounts that have no content on their websites or have similar content, templates or formatting, as determined by AMMD, in its sole discretion.
B. Commissions will accrue and only become payable once Influencer/Affiliate (a) provides all relevant tax and address documentation to AMMD pursuant to Section 4(C) below, and (ii) reaches the Commission Threshold of $100. All Qualified Purchases still eligible to result in commissions under this Section 4(B) must remain active and in good standing pursuant to the terms of this Agreement in order to remain eligible for accrual of a Commission. Once a Commission has accrued under this Section 4(B), the amount of such commission (the “Commission”) will be due and payable to Influencer/Affiliate under the terms of Section 4(C).
C. Subject to the terms of this Agreement and the accrual of Commissions as set forth in Section 4(B) above, Commissions will be calculated and set forth in the commission report in your Affiliate Console for each Qualified Purchase that accrues during the period for which such Commission fee is being calculated. Commissions will be processed approximately thirty (30) days after the end of the month or other period in which they accrue. AMMD will only pay a Commission to Influencer/Affiliate for Qualified Purchases made in accordance with this Agreement. Commission fees will be paid based on the current information in Influencer’s/Affiliate's profile. Influencer/Affiliate is required to notify AMMD promptly of any change in its address by updating its profile information in the Affiliate Console. AMMD is not responsible for paying any third-party fees charged in order for Influencer/Affiliate to receive its Commission.
D. Influencer/Affiliate is only eligible to earn Commissions on Qualified Purchases occurring during the Term. Commissions earned prior to the date of termination will be eligible for payment only if the orders for the related Amy Myers MD® Products and Services are not cancelled within (30) days and comply with all of the terms of this Agreement. AMMD may withhold Influencer’s/Affiliate's final payment of Commissions for a reasonable time to ensure that all Qualified Purchases are valid and payment from Referred Customers are legitimate as determined by AMMD in its sole discretion.
E. Any Influencer/Affiliate who violates this Agreement or any applicable law will immediately forfeit any right to any and all accrued, but not yet received, Commissions.
F. Influencer/Affiliate will have access to AMMD's real-time Affiliate Program statistics, and agrees to file any Commission disputes within forty-five (45) days after the end of the month in which the sale or event that is disputed occurred. Disputes filed after forty-five (45) days of the date on which the disputed sale or event occurred will not be accepted by AMMD and Influencer/Affiliate forever forfeits any rights to a potential claim.
G. It is Influencer’s/Affiliate's sole responsibility to provide AMMD with accurate tax and payment information that is necessary to pay a Commission to Influencer/Affiliate. If AMMD does not receive the necessary tax or payment information within ninety (90) days of a Qualified Purchase which would otherwise trigger the payment of a Commission, the applicable Commissions will not accrue and no Commissions will be owed with respect to such Qualified Purchase. Each Influencer/Affiliate is required to submit a W8/W9 tax form before any Commissions accrue, and Influencer/Affiliate is solely responsible for the payment of any and all taxes related to the Commissions that it receives. AMMD will issue a Form 1099 to Influencers/Affiliates whose earnings meet or exceed the applicable threshold.
H. Any address change must be made in the Influencers/Affiliate profile in the Affiliate console at least fifteen (15) business days prior to the end of the calendar month in order for Commissions for that month to be processed and paid. AMMD reserves the right to withhold payment of Commissions that are potentially fraudulent as determined by AMMD in its sole discretion to determine the legitimacy and cancellation rates of Referred Customers. AMMD reserves the right to suspend the payment of Commissions at any time and indefinitely, if it suspects fraud or other improper activity or a potential breach of any of the terms of this Agreement by the Influencer/Affiliate or a Referred Customer. AMMD reserves the right to deduct from Influencer's/Affiliate's current and future Commissions any and all Commissions corresponding to any fraudulent, questionable, and cancelled purchases. AMMD reserves the right to immediately cancel or withhold for later review any Commissions that fail to meet the criteria of a “Qualified Purchase.” If any Referred Customers that are referred to AMMD by an Influencer /Affiliate are determined to have an excessive cancellation rate, as determined by AMMD in its sole discretion, AMMD reserves the right to withhold or decline pending and future Commissions to such Influencer/Affiliate.
I. Free products can be earned by Influencers/Affiliates in exchange for social media content. The products sent to Influencer/Affiliate in accordance with this Section 5 will be subject to quantity on hand at the time of purchase. The Influencer /Affiliate acknowledges that the agreed upon compensation represents the Influencer’s /Affiliate's entire compensation (if not part of the blended affiliate program) with respect to this Agreement and the Advertiser has no other obligation for any other compensation to or expenses or costs incurred by the Influencer/ Affiliate in connection with the performance of the Services.
6. Influencers Eligible for Giveaways. When publishing posts/statuses promoting a product giveaway, the Influencer must tag @AmyMyersMD in the post. In addition, the Influencer must require their followers to follow/subscribe/like @AmyMyersMD in order for them to be eligible for winning the giveaway. Copy, captions, and videos or images must be approved by the Advertiser at least 48 hours prior to the beginning of the giveaway period. If the giveaway is conducted via blog, the Advertiser must approve the content at least 4 business days prior. Influencer is responsible for adhering to each specific social media platform’s giveaway rules and regulations.
7. Material disclosures and compliance with FTC. When publishing posts/statuses about the Advertiser’s products or services, the Influencer must clearly disclose his/her “material connection” with the Advertiser, including the fact that the Influencer was given any consideration, was provided with certain experiences or is being paid for a particular service. The above disclosure should be clear and prominent and made in close proximity to any statements that the Influencer makes about the Advertiser or the Advertiser’s products or services. Please note that this disclosure is required regardless of any space limitations of the medium (e.g. Twitter), where the disclosure can be made via hashtags, e.g. #sponsored. The Influencer’s statements should always reflect the Influencer’s honest and truthful opinions and actual experiences. The Influencer should only make factual statements about the Advertiser or the Advertiser's products which the Influencer knows for certain are true and can be verified.
8. Compliance with MPA and DSHEA Guidelines. When publishing posts/statuses about the Advertiser’s products or services, the Influencer/Affiliate must follow Medical Practice Act (MPA) and Dietary Supplement Health and Education Act of 1994 (DSHEA). Under these laws, the Influencer /Affiliate cannot diagnose or prescribe to their general public through their content. In addition, the Influencer / Affiliate cannot connect a supplement, food, or diet to the cure, treatment, prevention or mitigation of an illness or disease or its characteristic signs or symptoms. The Influencer/Affiliate is not to give testimonials that connect to the treatment, prevention, cure, or mitigation of a disease. For more information on DSHEA, go to https://ods.od.nih.gov/About/DSHEA_Wording.aspx.
9. No Resale. The Influencer /Affiliate shall not, directly or indirectly, resell Advertiser’s product, in whole or in part. This includes products purchased from the Advertiser’s store or products that are sent to the Influencer/ Affiliate by the Advertiser.
10. Force Majeure. If either party is unable to perform any of its obligations by reason of fire or other casualty, strike, act or order of public authority, act of God, or other cause beyond the control of such party, then such party shall be excused from such performance during the pendency of such cause.
11. Indemnification; Disclaimer; Limitation of Liability. Influencer /Affiliate will indemnify, defend and hold Advertiser, and its members, officers, agents and employees (each, a “Advertiser Indemnitee”) from and against any and all claims, damages, costs, liabilities, losses, expenses and reasonable attorney fees arising out of Influencer’s /Affiliate's (a) performance of the Services, (b) violation of any Laws; (c) breach of this Agreement; and/or (d) Influencer’s willful misconduct or negligence. ANY PRODUCTS PROVIDED TO INFLUENCER / AFFILIATE HEREUNDER ARE PROVIDED AS IS AND WITHOUT ANY WARRANTY OF ANY KIND AND ADVERTISER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL ADVERTISER BE LIABLE TO INFLUENCER / AFFILIATE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS OR REVENUE, HOWEVER CAUSED, WHETHER IN AN ACTION OR CLAIM ARISING IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY, OR ANY OTHER CAUSE OF ACTION OR CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT, OR OTHERWISE, AND WHETHER OR NOT ADVERTISER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL ADVERTISER’S AGGREGATE LIABILITY UNDER ANY CAUSE OF ACTION UNDER THIS AGREEMENT EXCEED $500.
12. Notices. Any notice or other communication sent under this Agreement will have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such addressee party may designate from time to time in accordance with this Section 12).
AMMD, LLC _______________________________
8816 Cullen Ln _______________________________
Austin, Texas 78748 _______________________________
Notices sent in accordance with this Section 12 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
13. General Terms. Influencer /Affiliate must not assign or transfer this Agreement in whole or in part without Advertiser’s prior written consent. The rights and obligations of this Agreement will be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns. The invalidity or unenforceability of any particular provision of this Agreement will not affect the other provisions hereof, and the remainder of the Agreement will be construed in all respects as if such invalid or unenforceable provision has been omitted. The waiver by any of the parties, express or implied, of any right under this Agreement or with respect to any failure to perform under or breach of this Agreement by the other party, will not constitute or be deemed a waiver of any other right under this Agreement or of any other failure to perform under or breach of this Agreement by the other party, whether of a similar or dissimilar nature. The parties to this Agreement are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other party or incur obligations on the other party's behalf without the other party's prior written consent. The laws of the state of Texas will govern the validity and interpretation of this Agreement. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder must be instituted exclusively in the federal or state courts of the United States or the courts of the State of Texas in each case located in Travis County, Texas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. This Agreement supersedes all prior and contemporaneous discussions between the parties with respect to the subject matter of this Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter thereof and may not be amended except by a writing signed by both parties.