AFFILIATE TERMS AND CONDITIONS AGREEMENT
This Affiliate Terms and Conditions Agreement (the "Agreement") is a legally binding agreement between you "You") and WeightWatchers.com, Inc. (on behalf of itself and its affiliates) (collectively, "WeightWatchers.com" or "We") and is effective on the date You accept the terms and conditions of this Agreement as set forth herein (the "Effective Date"). BY CLICKING ON THE "ACCEPT" BUTTON AND/OR PARTICIPATING IN THE WEIGHTWATCHERS.COM AFFILIATE PROGRAM (THE "AFFILIATE PROGRAM") THROUGH COMMISSION JUNCTION ("CJ"), YOU ACKNOWLEDGE THAT YOU HAVE READ THE TERMS OF THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS SET FORTH HEREIN, DO NOT CLICK THE "ACCEPT" BUTTON OR PARTICIPATE IN THE AFFILIATE PROGRAM.
|1. Eligibility. To be eligible to be a WeightWatchers.com affiliate (“Affiliate”), You must operate a website that has been approved by WeightWatchers.com, and Your website must not and, during the term of this Agreement, shall not, as determined by WeightWatchers.com in its sole discretion: (a) infringe on WeightWatchers.com’s, Weight Watchers International, Inc.’s or any other third party's intellectual property, publicity, or privacy rights; (b) violate any law or regulation; (c) contain any false or misleading information; (d) operate or utilize a website or e-mail link to websites that contain or promote, any of these types of content: libelous, defamatory, obscene, abusive, violent, bigoted, hate-oriented, illegal, cracking, hacking or warez, content targeted at children, or the offer of any illegal good or service, or link to a website(s) that do so; (e) promote discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age; (f) engage in spamming, indiscriminate advertising or unsolicited commercial e-mail; (g) be based outside of the United States (unless You receive prior written approval from WeightWatchers.com; and/or (h) engage in any illegal activity of any type, including but not limited to displaying illegal content on Your website or offering any illegal good or service through Your website. You remain solely responsible for all content on Your website.|
2. True and Complete Information. You represent and warrant that all information that You provided in connection with becoming an ffiliate of WeightWatchers.com is true and complete. You further agree to maintain and promptly update such information to keep it accurate. If WeightWatchers.com determines or has reason to believe that any information provided by You is not true and/or complete, You shall indemnify WeightWatchers.com in accordance with Section 13 below and WeightWatchers.com may immediately terminate Your participation with respect to the WeightWatchers.com website if such breach also constitutes a breach of Section 1 above.
|3. Content Usage Restrictions. You represent and warrant that You shall not, except as specifically provided for pursuant to the Affiliate Program: (i) copy or display any WeightWatchers.com Content (as hereinafter defined); (ii) modify, adapt, translate or create derivative works based on the WeightWatchers.com Content; (iii) remove, erase, or tamper with any copyright or other proprietary notices in any copy of any of the WeightWatchers.com Content; (iv) sell, market, license, sublicense, distribute, disclose or otherwise grant to any person any right or interest in the WeightWatchers.com Content; (v) buy or bid on any of the Weight Watchers trademarks, or variations of the trademarks, on any search engine or site; or (vi) take any action which may cause deception, confusion or otherwise blurs, tarnishes or dilutes the quality of the WeightWatchers.com Content or the Weight Watchers trademarks or other intellectual property or the goodwill associated therewith, all as shall be determined by WeightWatchers.com. For any search functionality on Your site using the Weight Watchers trademarks, (a) Weight Watchers Links must always appear at the top of the list, (b) any Link that contains Weight Watchers in the title must connect the user directly back to the WeightWatchers.com website, and (c) such Link must be supplied to You by WeightWatchers.com. You agree to use the WeightWatchers.com Content exactly in the form provided to You pursuant to the Affiliate Program. Upon termination of this Agreement, for any reason, You shall immediately cease using, displaying or otherwise maintaining any interest in the WeightWatchers.com Content. For purposes of this Agreement "WeightWatchers.com Content" means any and all trademarks, service marks, logos and other content which WeightWatchers.com makes available to You in connection with the Affiliate Program, including, but not limited to, banners, buttons, or other display advertisements created and furnished by WeightWatchers.com. Such WeightWatchers.com Content may be owned by WeightWatchers.com or licensed to WeightWatchers.com by a third party, including Weight Watchers International, Inc. You agree that You do not and will not (i) use or in any way exploit, any information, software, photos, video, text, graphics, music, sounds, ideas, recipes, articles, content and other materials of WeightWatchers.com, other than the WeightWatchers.com Content, alone or in connection with any other content, including WeightWatchers.com Content and (ii) include any trademark of WeightWatchers.com, or a variant or misspelling of a trademark of WeightWatchers.com, in any domain name.|
|5. Property Ownership Rights. You agree and acknowledge that WeightWatchers.com retains all rights, title and interest in and to all property rights embodied in or associated with the WeightWatchers.com Content. You represent and warrant that You will not take any action or assist any third party to take action challenging, contesting or otherwise inconsistent with WeightWatchers.com's ownership of the WeightWatchers.com Content and any goodwill and benefits accruing from the use of such WeightWatchers.com Content will automatically vest in WeightWatchers.com. 6. Operation and Maintenance of the WeightWatchers.com Web Site. You acknowledge and agree that WeightWatchers.com may accept or reject, in its sole and absolute discretion, all subscriptions from customers placed on or through the WeightWatchers.com website. You further acknowledges and agrees that (i) it does not have any authority to make or accept any offer or commitment on behalf of WeightWatchers.com, (ii) WeightWatchers.com cannot, and does not, guarantee the availability and accessibility of the WeightWatchers.com website, and (iii) WeightWatchers.com is solely responsible for all pricing, subscription processing, online fulfillment, cancellation, refunds and all other aspects of the WeightWatchers.com website and its products and offerings. All personal information obtained from customers on the website shall be the exclusive property of WeightWatchers.com. |
8. Public Announcement. You may not mention WeightWatchers.com in a press release or other public statement (other than the banners, buttons, or other display advertisements created and furnished by WeightWatchers.com) unless You have received prior written approval from WeightWatchers.com.
|9. Representations and Warranties. You hereby represent and warrant to WeightWatchers.com that: (i) You have duly and validly executed this Agreement and it constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms; (ii) the execution, delivery, and performance by You of this Agreement and the consummation by You of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (a) any provision of law, rule, or regulation to which You are subject, (b) any order, judgment, or decree applicable to You or binding upon Your assets or properties, (c) any provision of Your by-laws or certificate of incorporation if applicable, or (d) any agreement or other instrument applicable to You or binding upon Your assets or properties; (iii) no consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by You in connection with the execution, delivery, and performance of this Agreement or the taking by You of any other action contemplated hereby; and (v) there is no pending or material threatened claim, action, or proceeding against You, or any subsidiary or affiliate of Yours, with respect to the execution, delivery or consummation of this Agreement, or with respect to Your trademarks, and there is no basis for any such claim, action, or proceeding. |
10. Payments. WeightWatchers.com agrees to pay to You the flat fee amount set forth on the Publisher Application Page of the CJ website, which fee may be changed from time to time by WeightWatchers.com by posting a different amount on the Publisher Application Page of the CJ website and by providing seven (7) days notice for a decrease in the fee amount, for each successful execution or billing of a paid subscription (excluding execution or billing of automatic renewal or other recurring billing of a subscription) to the Weight Watchers eTools product, the Weight Watchers Online product or the Weight Watchers Monthly Pass offering purchased by any Affiliate end user who (a) Clicks on a Link and subsequently subscribes to the Weight Watchers eTools product, the Weight Watchers Online product or the Weight Watchers Monthly Pass offering through the WeightWatchers.com website no later than fourteen (14) days after such Click (as such time period may be adjusted by WeightWatchers.com from time to time), (b) has not clicked on a hypertext link to the WeightWatchers.com website from another website operated by WeightWatchers.com, another affiliate or any other third party after last Clicking on Your Link during such fourteen (14) day period, and (c) has not, within the six (6) months prior to such end user’s last Click on Your Link, been a subscriber to the Weight Watchers eTools product, the Weight Watchers Online product or the Weight Watchers Monthly Pass offering. For purposes of this Agreement, "Clicks" means the occurrence of an end user clicking on a Link. WeightWatchers.com shall not pay You for any transactions made directly by You or Your agents using Your own Links.
|11. Responsibility for Affiliate URLs. You will be solely responsible for the development, operation, and maintenance of all URLs that are linked to the WeightWatchers.com website and for all materials that appear on such URLs. You acknowledge and agree that it shall be responsible for complying with the terms hereof and the terms of its agreement(s) with CJ. |
12. No Joint and Several Liability. You acknowledge and agree that neither WeightWatchers.com, its subsidiaries, parents, other affiliates, directors, officers, employees, agents, successors or assigns (collectively, the "WeightWatchers.com Parties"), shall be liable to any party, including You, for any claim, liability, suit, action, judgment, loss, costs, expenses or other damages related to or in connection with Your website(s) and/or any content or other information displayed or contained thereon, including but not limited to, claims of infringement. Without limiting the generality of the proceeding sentence, You acknowledge and agree that, notwithstanding any provision in any agreement between CJ and You to the contrary, including but not limited to any provision imposing joint and several liability on WeightWatchers.com, WeightWatchers.com shall not be liable to You or any of its subsidiaries, parents, other affiliates, directors, officers, employees, agents, successors or assigns for any claims for indemnification, contribution or otherwise.
13. Affiliate Indemnification. You, at its Your expense, shall indemnify, defend and hold harmless, WeightWatchers.com against any claim, suit, action, judgment, liability, loss, cost, expenses and other damages, including, without limitation, reasonable attorney's fees, based upon or in connection with (i) any breach or alleged breach of Your representations and warranties hereunder, (ii) the failure to comply with or perform any obligation or agreement of You hereunder, or (iii) the Your website(s) and/or any content or other materials displayed or contained thereon, including, but not limited to, claims of infringement.
14. Term of the Agreement. This Agreement shall begin on the Effective Date and shall terminate on the date You are no longer an Affiliate of WeightWatchers.com pursuant to the Affiliate Program.
|15. Termination. WeightWatchers.com may terminate this Agreement at any time and for any reason upon seven (7) days written notice (e-mail or other electronic communication will suffice) to Affiliate with effect from the 8th day from such notice. WeightWatchers.com may terminate this Agreement immediately, without notice, if WeightWatchers.com determines, in its sole discretion, that Affiliate has breached Affiliate’s obligations pursuant to Section 1. In addition, WeightWatchers.com may terminate this Agreement, in its sole discretion, immediately upon written notice (e-mail or other electronic communication will suffice) if: (a) Affiliate has failed to comply with or has breached Section 3 or 4, ; (b) WeightWatchers.com believes in good faith that You or Your Sub-Affiliate is harming, blurring or tarnishing the Weight Watchers brand, any other trademark, service mark or trade name owned or licensed by WeightWatchers.com or WeightWatchers.com’s reputation; (c) WeightWatchers.com believes in good faith that Your or Your Sub-Affiliate’s actions or one or more of Your or Your Sub-Affiliate’s websites is causing or would cause WeightWatchers.com to be in breach of its contractual obligations with third parties; and/or (d) the agreement and relationship between WeightWatchers.com and CJ has been terminated.
16. Modification of Agreement. WeightWatchers.com reserves the right to modify this Agreement upon no less than seven (7) days notice to Affiliate. WeightWatchers.com may modify this Agreement by notifying Affiliate, and such notification may be completed electronically through the CJ Network. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, AFFILIATE'S SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT. AFFILIATE'S CONTINUED PARTICIPATION AS AN AFFILIATE FOLLOWING THE MODIFICATION OF THIS AGREEMENT SHALL CONSTITUTE ACCEPTANCE OF SUCH MODIFICATION BY AFFILIATE.
17. LIMITATION OF DAMAGES. WEIGHTWATCHERS.COM WILL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WEIGHTWATCHERS.COM WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, WEIGHTWATCHERS.COM'S AGGREGATE LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM WILL IN NO EVENT EXCEED THE TOTAL REVENUE SHARE PAID OR PAYABLE BY WEIGHTWATCHERS.COM TO AFFILIATE UNDER THE AFFILIATE PROGRAM DURING THE IMMEDIATELY PRECEDING 12 MONTH PERIOD PRIOR TO THE DATE SUCH LIABILITY AROSE.
18. WARRANTY DISCLAIMER. WEIGHTWATCHERS.COM MAKES NO WARRANTIES, REPRESENTATIONS, GUARANTEES, OR CONDITIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. IN PARTICULAR, WEIGHTWATCHERS.COM MAKES NO REPRESENTATION THAT THE OPERATION OF THE WEBSITE WILL BE UNINTERUPTED OR ERROR-FREE.
|19. Independent Contractors. WeightWatchers.com and Affiliate are independent contractors and nothing in this Agreement or the Affiliate Program is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative, or employment relationship. |
20. Governing Law. This Agreement is governed by and in accordance with the substantive laws of the State of New York, excluding its conflict of laws principles. Any lawsuit relating to this Agreement must be brought in the federal or state courts located in New York, New York.
21. Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify, or place any construction upon or on any of the provisions of this Agreement.
22. Assignment. The Affiliate may not assign any of its rights or delegate any of its obligations under this Agreement, by operation of law or otherwise, without WeightWatchers.com's prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
23. Waiver. WeightWatchers.com's failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
24. Entire Agreement. This Agreement, along with any applicable Program Terms that You accept, and the agreement that the Affiliate has entered into with CJ as part of the Affiliate Program represents the complete agreement and understanding between the parties, and supersedes any other oral or written communications or understandings between the parties regarding the subject matter hereof. As between WeightWatchers.com and the Affiliate, any conflict between the terms of this Agreement and the terms of the agreement that the Affiliate has entered into with CJ, shall be governed by the terms of this Agreement. No amendment or modification to this Agreement will be binding upon WeightWatchers.com unless agreed to by an authorized representative of WeightWatchers.com.