Miami Beach Body - Terms and Conditions of Referral Partner Program
INTRODUCTION.This Exchange Publisher Service Agreement (this "Agreement") shall govern the relationship between Miami Beach Body, a Florida corporation, with offices located at 3381 SW 130th Ave, Miami, FL 33175 ("Miami Beach Body"), and the party requesting the Services ("You" or "Publisher") with respect to the advertising service (the "Service") offered through Miami Beach Body's web site located at www.MiamiBeachBody.online (the "Site"). You and Miami Beach Body may also be individually referred to herein as "Party" and collectively as "Parties."
TO USE OR ACCESS THE SERVICES, YOU MUST AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING "I ACCEPT" WHERE INDICATED. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU HAVE NO RIGHT OR AUTHORITY TO ACCESS OR USE THE SERVICES OR EXERCISE ANY OTHER RIGHT IN CONNECTION THEREWITH.
If You have registered for or on behalf of an entity, you are deemed to have accepted this Agreement on behalf of such entity. To the extent Publisher is a network of third parties, then Publisher shall be responsible to ensure that such third parties comply with the terms of this Agreement and the terms of the applicable Advertiser Program(s). If you do not agree to the terms of this Agreement in its entirety, You are not authorized to: (a) register as a publisher; (b) use the Service; and/or (c) use the Site, in any manner or form whatsoever. Miami Beach Body may, in its sole discretion, refuse to register You as a Publisher and/or terminate Your participation in an Advertiser Program (as defined below) at any time for any reason. To the extent that the terms of any Advertiser Program are in conflict or inconsistent with this Agreement, this Agreement shall take precedence and control.
You agree to use the Site, the Service and any additional products and/or services offered by Miami Beach Body only in accordance with this Agreement. Miami Beach Body reserves the right to make changes to the Site, Service and this Agreement at any time and the revised version of the Agreement shall become effective after 30 days of being posted on the Site. Following such 30 day period, Your continued use of the Site and/or Service after any such modification thereof shall constitute Your consent to such modification.
EXCHANGE. As a service provider, Miami Beach Body facilitates affiliate marketing programs via its technology and network on the Internet. An affiliate marketing program ("AdvertiserProgram") is where a Publisher or its agent operates one or more web site(s) (domain or portion of a domain within the Internet) and/or subscription e-mail list(s) to earn financial compensation ("Publisher Fees") for sales and or leads ("Transactions") generated from such web site and/or e-mail list through a click made by a customer (each, a "Customer") on a web site or content operated by an advertiser ("Advertiser"). The Advertiser compensates the Publisher, in accordance with this Agreement and the specifications of the applicable Advertiser Program agreed to by the Advertiser and the Publisher under a separate agreement.
In consideration of the mutual covenants and agreements contained herein, the parties, intending to be legally bound, hereby agree as follows:
Miami Beach Body has the right to confirm and check the truth and accuracy of any registration information at any time.
Please note that the verification of Your registration information, specifically, name, address and tax identification number, against a third party database may be considered under certain laws to constitute a "credit check" and You hereby consent to any such verification process. Notwithstanding that, your participation in the Services as a publisher does not depend on Your credit worthiness or financial stability.
If any information is determined by Miami Beach Body to be misleading, inaccurate or untruthful, Miami Beach Body may restrict, deny or terminate Your account, Your access and use of the Services and the Site, and/or any benefits derived from Your participation in any Advertiser Program, including the withholding or forfeit (in whole or in part) of any Sales Commissions Fees to Miami Beach Body.
Publisher shall not perform trademark bidding or direct linking on search engines including on Google, Yahoo and MSN, when the applicable Advertiser Program prohibits such activity. By "direct linking" this agreement refers to sending traffic directly from the search engine to the Advertiser website without use of an intermediary landing page.
Miami Beach Body reserves the right at any time to further restrict what activities are considered valid and will entitle Publisher to Publisher Fees under this Agreement. Miami Beach Body reserves the right to withhold, refuse or withdraw approval of any websites, email distribution lists and/or marketing channels for any reason, whatsoever, in Miami Beach Body's sole discretion. Only Publisher's websites, e-mail distribution lists or other marketing channels that have been reviewed and approved by Miami Beach Body may be utilized in connection with the Site and Service.
PUBLISHER AGREES TO REVIEW THE AVAILABILITY OF CREATIVE THAT IT HAS PLACED WITHIN ITS MEDIA ON A DAILY BASIS. IT IS THE PUBLISHER'S RESPONSIBILITY TO CHANGE CREATIVE WITHIN ITS MEDIA WHEN THE CREATIVE IS NO LONGER AVAILABLE ON THE SITE. Miami Beach Body ASSUMES NO RESPONSIBILITY TO NOTIFY PUBLISHER WHEN A SPECIFIC CREATIVE IS NO LONGER AVAILABLE ON THE SITE.
In addition, Site integration tags and tracking pixels ("Tags") included in the Creative or otherwise incorporated may not be altered under any circumstances. Miami Beach Body employs a testing system to determine whether You have removed or altered the Tags. Altering, removing or disabling Tags may jeopardize Your ability to be paid for Transactions and is grounds for immediate termination of Your Publisher account, with or without notice. You will not, nor knowingly permit any person to, activate Creatives or inflate the amount of Transactions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, device, program, robot, Iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing an Transaction.
All Publisher Fees will be paid in US Dollars ($US). Notwithstanding anything contained herein to the contrary, no Publisher Fees will be issued for any amounts due to Publisher that total less than twenty-five dollars ($25.00) ("Payment Threshold").
Every Publisher must have a unique, valid taxpayer identification number, valid Social Security Number, or other applicable unique government identification. Publisher shall be responsible for all applicable taxes.
An Advertiser may request that Miami Beach Body, or Miami Beach Body may on its own initiative, debit from the Publisher Fees an amount equal to a Publisher Fee previously credited to Publisher's account where: (a) a return or cancellation has been made with respect to the applicable product and/or service; (b) there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a Customer order; (c) there are Transactions that do not comply fully with the terms of this Agreement or the applicable Advertiser Program; (d) there is non-receipt of payment from, or refund of payment to, the Customer that entered into the subject Transaction; (e) there is any failure on the part of the Publisher to comply with this Agreement and or applicable Advertiser Program terms; or (f) any other amounts paid in error or due Advertiser from Publisher (collectively referred to as a "Reversal"). Unless otherwise set forth in the applicable Advertiser Program, Reversals requested by an Advertiser in accordance with this Section for Customer refunds and chargebacks may be applied up to sixty (60) days after the end of the month in which the applicable Publisher Fee was earned ("Reversal Period"). For the avoidance of doubt, there is no time restriction on any other Reversals. Advertiser may request that the payment of a Publisher Fee be postponed for one (1) payment cycle where: (i) Advertiser is verifying a lead (for Advertiser Programs in which lead generation is a component of the Transaction); (ii) Advertiser has a product return policy that allows the underlying purchaser to return the product during the Reversal Period; or (iii) the applicable Advertiser Program provides for such a postponement. The number or amount of Transactions, credits for payments and debits for Reversals, as calculated by Miami Beach Body, shall be final and binding on Publisher.
Each Party will take commercially reasonable actions designed to protect the Confidential Information of the other Party from misappropriation and unauthorized use or disclosure, and at a minimum, will take precautions at least as great as those taken to protect its own confidential information of a similar nature. The receiving Party may disclose Confidential Information of the disclosing Party to the extent necessary to comply with applicable Law. Upon request of the other Party, or in any event upon any termination or expiration of this Agreement, each Party will return to the other or destroy all materials, in any medium, which contain, embody, reflect or reference all or any part of any Confidential Information of the other Party. This Agreement shall be the Confidential Information of Miami Beach Body.
Either Party will be entitled to seek preliminary and/or permanent injunctive relief from any violation or threatened violation of this Section 5 without the necessity of proving actual damages or posting any bond or other security.
"Confidential Information" means all confidential and/or proprietary information and documents furnished or disclosed by or on behalf of a Party or its affiliates, no matter when or how furnished or disclosed. Confidential Information includes, without limitation, (a) all nonpublic information relating to a Party's or its affiliates' technology, business plans, agreements, promotional and marketing activities, finances and other business affairs, and (b) all third party information that a Party or its affiliates is obligated to keep confidential. Confidential Information may be contained in tangible materials, such as drawings, data, specifications, reports and computer programs, or may be in the nature of unwritten knowledge. Confidential Information does not include any information that (w) has become publicly available without breach of this Agreement, (x) can be shown by documentation to have been known to the receiving Party at the time of its receipt from the disclosing Party or its affiliates, (y) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (z) can be shown by documentation to have been independently developed by the receiving Party without reference to any Confidential Information.
Except as provided elsewhere herein, Publisher must send all notices relating to this Agreement in writing via overnight mail, fax or e-mail: (a) to Miami Beach Body, 3381 SW 130th Ave, Miami, FL 33175. All notices from Miami Beach Body shall be sent to the address submitted by You when You sign up for the Service.
The Agreement shall commence upon Miami Beach Body's acceptance of Your publisher application and remain in effect until terminated as set forth herein.
Either party may terminate this agreement at any time. In addition, Miami Beach Body reserves the right, in its sole and absolute discretion, to terminate an Advertiser Program, suspend Your participation in an Advertiser Program and/or remove any Creatives at any time for any reason. Miami Beach Body also reserves the right to terminate Your access to the Site at any time. Termination notice may be provided via e-mail and will be effective immediately. Upon termination, Publisher agrees to immediately remove from its Publisher website(s) any and all Creatives, Miami Beach Body code or other intellectual property made available to Publisher in connection with its performance under the Agreement. The representations, warranties and those obligations that by their terms and context show the Parties intended them to survive the termination of this Agreement for any reason, including provisions governing confidentiality, ownership, indemnification and liability, shall survive the expiration or earlier termination of this Agreement.
The Parties hereby acknowledge and agree that Publisher is solely responsible for the method in which the Creatives are disseminated. You represent and warrant that You will not engage in any activities that violate any Advertiser Program's terms and conditions. Moreover, You represent and warrant that: (a) Your Publisher website and/or Publisher e-mails are represented by a legitimate second-level domain name (e.g. yoursite.com is acceptable; however, a shared server, e.g., sharedsite.com/yoursite, is not acceptable); (b) Your Publisher website is not offered as a part of a community-based website personal entry or personal page; (c) Your Publisher website and Publisher e-mails do not incentivize users to click on Creatives, including by awarding users cash, points, prizes, and/or contest or sweepstake entries or any other incentives ("Incentives"); (d) Your Publisher Website is not hosted by a free service and is fully functional at all times and at all levels (no "under construction" Publisher Websites or any sections thereof are permissible); (e) You will place or use the Creatives only with the intention of delivering valid Transactions as determined by, and for the benefit of, the applicable Advertiser; (f) You will not violate guidelines of any search engines being utilized; (g) You will not allow the Creatives to be placed on any non-Publisher website without the prior express written consent of Miami Beach Body and the applicable Advertiser; (h) You will not use any Creatives or any other Advertiser Program terms and/or content in connection with aggregating, soliciting or recruiting other Publishers, Advertisers, other websites or other persons to form or join an affiliate marketing, advertising or similar network for the purpose of engaging in business of the type conducted by Miami Beach Body; (i) You will not redirect traffic to a website other than the website specifically listed by the applicable Advertiser; (j) Your performance under this Agreement shall not in any way violate or infringe upon any third party rights, including rights regarding ownership, trade secrets, trademarks, copyright or patents; (k) You shall protect, promote and preserve the goodwill associated with the Advertiser trade name and any Customer relationships in connection with its performance hereunder; (l) in performing Your obligations and exercising Your rights under this Agreement, You shall comply with all applicable laws (and all changes in laws) relating to or affecting this Agreement or the work to be performed hereunder, and (m) You shall obtain and maintain all permits, licenses, and consents required in connection therewith.
MIAMI BEACH BODY WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY), TO YOU OR ANY OTHER PERSON OR ENTITY FOR COST OF COVER, LOST PROFITS, LOSS OF BUSINESS, DATA OR REPUTATION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT.
MIAMI BEACH BODY'S AGGREGATE LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT WILL IN NO EVENT EXCEED FIFTY PERCENT (50%) OF THE TOTAL FEES PAID OR ACCRUED BY YOU TO MIAMI BEACH BODY DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
THE SITE AND THE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE SITE AND THE SERVICE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. MIAMI BEACH BODY HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY, FOR PUBLISHER'S USE OF, OR INABILITY TO USE, THE SITE OR THE SERVICE AND MIAMI BEACH BODY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT PUBLISHER'S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE ADVERTISER PROGRAMS WILL BE AVAILABLE TO PUBLISHER. MIAMI BEACH BODY SHALL NOT BE RESPONSIBLE FOR THE FAILURE OR OTHER ACTS OR OMISSIONS OF ANY ADVERTISER.
Any provisions of the Agreement which are determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. A Party's waiver of any term or condition of this Agreement shall not be deemed a continuing waiver. The rights set forth in this Agreement are cumulative and in addition to those otherwise provided by law and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
Neither Party shall assign or transfer this Agreement, in whole or in part, without the prior written consent of the other Party, and any such assignment without consent shall be void, provided that either Party may, upon prior written notice to the other party, assign or transfer this Agreement, in its entirety only, to an affiliate capable of performing its obligations hereunder or to an entity acquiring all or substantially all of the operating assets of the assigning Party.
The Agreement shall be construed, governed and enforced under and in accordance with the internal laws of the state of Florida. Any and all disputes or controversies whether of law or fact of any nature whatsoever arising from or with respect to this Agreement shall be decided by arbitration by the American Arbitration Association ("Arbitrator"), in accordance with the rules and regulations of that Arbitrator.
Miami Beach Body shall not be liable to Publisher by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of Miami Beach Body.
In making and performing this Agreement, the Parties are acting and shall act as independent contractors, and neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous, negotiations, representations, agreements or understandings with respect thereto, whether written or oral. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.
Notwithstanding any legal presumption to the contrary, any provisions that by their terms are intended to survive termination, shall survive termination or expiration of this Agreement.
This agreement was last updated on June 29, 2016
Miami Beach Body
3381 SW 130th Ave, Miami, FL 33175 Return to The Referral Partner Application