As a participant in the Gundry MD™ Wellness Ambassador Program (the “Program”), you agree to the following terms and conditions:
These terms and conditions constitute an agreement (the “Agreement”) by and between Agoura Health Products, LLC d/b/a Gundry MD™ (hereafter, “Company,” “we,” “us,” or “our”) and you.
A. The Program. You agree to promote Gundry MD™’s products (the “Products”) to your referrals via in-person meetings, telephone and/or email communications, your personal or business website, and/or and your personal or business social media platforms (collectively, the “Approved Channels”) pursuant to the terms and subject to the conditions set forth below, and we agree to pay you commissions based on the number of completed Product purchases made by your referrals, as set forth in more detail on Exhibit A. As part of the Program, we will provide you with an individual referral code (the “Code”) for your referrals to use when purchasing Products from the Gundry MD™ website (the “Website”), which will allow us to track such purchases.
B. Limited License to Use Content. As a participant in the Program, you may have the opportunity, from time to time, to receive marketing or promotional materials from us in order to assist you with promoting the Products to your referrals. Subject to the terms and conditions of this Agreement, Company hereby grants you a limited, revocable, non-transferable, non-exclusive license to use and display any logos, trademarks, product information and/or other content (collectively, the “Content”) that Company makes available to you, solely in the Approved Channels and in connection with your participation in the Program. You may not alter, modify or change the Content in any way.
Upon termination of this Agreement, any and all licenses you have with respect to the Content shall automatically terminate, and you will immediately stop using the Content.
1. You may not purchase the Products for resale.
2. You may only promote the Products in a manner consistent with the Product labels, our Website and any applicable Content that you receive from the Company; you may not make any additional claims regarding the usage or effectiveness of the Products.
3. You may not promote the Products or post any Content in any printed publications including, but not limited to, newspapers, classified advertisements or billboards, or via any Internet advertisement (such as incentivized clicks/traffic, banner advertisements or use of any offer boards).
4. Employees of Gundry MD™ and its respective affiliates, subsidiaries, advertising or promotion agencies are not eligible to participate in the Program.
D. Your Responsibilities. In order to participate in the Program, your responsibilities include, but are not limited to:
1. Promoting the Products only in the Approved Channels and expressly provided in this Agreement;
2. Using any Content provided to you by Company only as expressly provided in this Agreement;
3. Obeying all applicable laws; and
4. Ensuring your (and any of your agents’) compliance with all terms and conditions of this Agreement.
E. Representations and Warranties. You hereby represent and warrant to us as follows:
1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
2. 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 (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
3. 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.
4. Each sale referred by you to us is valid, genuine, unique and not fraudulent. While you may purchase a reasonable amount of Products using your Code for your own personal consumption, you acknowledge and agree that a minimum of 75% of the sales made using your Code shall be made by third-party consumers.
F. Order Processing. All Product orders will be processed and fulfilled by Company, and we reserve the right to reject any order that does not comply with any of Company’s requirements for order placement, as may be established from time to time.
G. Relationship of Parties. You and Company are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You have no authority to make or accept any offers or representations on Company’s behalf.
H. Term and Termination. The term will begin upon your acceptance of this Agreement and will end when terminated by either party. Company reserves the right to remove any participant or terminate or suspend the Program, in whole or in part, at any time without notice in its sole discretion. Except for a termination for breach or violation of law, you will be eligible to earn commissions on completed Product purchases occurring up to and including the termination date. In addition to its other rights and remedies under this Agreement, Company may withhold all accrued commissions from any participant who breaches the terms and conditions of the Program or this Agreement, or violates any applicable law or regulation. Upon any termination of this Agreement, the rights and obligations of both parties will be extinguished, except that the rights and obligations of the parties under Sections D – H and J – N, together with any accrued by unpaid payment obligations of us pursuant to this Agreement, will survive the termination of this Agreement. No termination of this Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Agreement prior to termination.
I. Modification. We may modify the Program terms and conditions contained in this Agreement in our sole discretion by sending notice of such modification to you. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Program following the effective date of any modification will constitute your binding acceptance of such modification.
J. Indemnity. You agree to defend, indemnify and hold Company, our affiliates and licensors, and our and their respective managers, members, employees, officers and representatives, harmless from and against all claims, damages, losses, liabilities, costs, or expenses (including attorney’s fees), joint or several, of whatever kind or nature relating to (a) your (or your agents’) use of the Content, Codes, Products or your promotion of the Products in any manner that violates this Agreement, the terms of the Program, or applicable law; (b) any misrepresentation of a Product or Company representation or warranty by you (or your agents’) or your (or your agents’) violation of any term or condition of this Agreement; or (c) your (or your agents’) negligence or willful conduct.
K. Intellectual Property. YOUR USE OF OUR CONTENT AND DISTRIBUTION OF OUR PRODUCTS IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER, SHALL, IN ADDITION TO BEING A BREACH OF THIS AGREEMENT, CONSTITUTE UNLAWFUL INFRINGEMENT OF OUR TRADEMARKS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS, AND MAY SUBJECT YOU TO CLAIMS FOR DAMAGES (INCLUDING WITHOUT LIMITATION, TREBLE DAMAGES FOR KNOWING OR WILLFUL INFRINGEMENT), AND THE OBLIGATION TO PAY OUR LEGAL FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH WE SEEK TO ENFORCE OUR RIGHTS UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF OUR INTELLECTUAL PROPERTY RIGHTS. IN ADDITION TO OUR OTHER RIGHTS AND REMEDIES UNDER THIS AGREEMENT, WE MAY ALSO SEEK INJUNCTIVE OR OTHER RELIEF IN ANY COURT OF COMPETENT JURISDICTION FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF OUR OR ANY OTHER PERSON OR ENTITY’S INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT OUR RIGHTS IN THE CONTENT AND PRODUCTS ARE OF A SPECIAL, UNIQUE, EXTRAORDINARY CHARACTER, GIVING THEM PECULIAR VALUE, THE LOSS OF WHICH CANNOT BE READILY ESTIMATED OR ADEQUATELY COMPENSATED FOR IN MONETARY DAMAGES.
L. Disclaimers. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE PROGRAM OR THE PRODUCTS, CONTENT, CODES AND OTHER INFORMATION PROVIDED BY US OR OUR AFFILIATES IN CONNECTION WITH THE PROGRAM (COLLECTIVELY, THE “PROGRAM MATERIALS”). EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE PROGRAM AND PROGRAM MATERIALS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WARRANT THAT THE PROGRAM OR PROGRAM MATERIALS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US, FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAM, CONTENT, OR ANY WEBSITE BELONGING TO COMPANY OR ITS AFFILIATES AND LICENSORS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
THE PRODUCT INFORMATION PROVIDED ON COMPANY’S WEBSITES IS INTENDED FOR GENERAL KNOWLEDGE AND IS NOT INTENDED TO BE, OR IS, MEDICAL ADVICE OR A SUBSTITUTE FOR MEDICAL ADVICE, NOR IS THIS INFORMATION INTENDED TO BE, NOR IS IT, TREATMENT FOR SPECIFIC MEDICAL CONDITIONS. YOU AND YOUR REFERRALS SHOULD NOT USE THIS INFORMATION TO TREAT, DIAGNOSE OR ATTEMPT TO CURE A HEALTH PROBLEM OR DISEASE. IF YOU OR YOUR REFERRALS HAVE, OR SUSPECT YOU OR THEY HAVE, A SPECIFIC MEDICAL CONDITION OR DISEASE, PLEASE CONSULT A HEALTHCARE PROVIDER.
M. Limitation of Liability. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT OR DAMAGES ARISING IN CONNECTION WITH (1) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (2) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (3) ANY TERMINATION OF THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
N. General Provisions. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and permitted assigns. Company may assign its rights and obligations hereunder to any third party at any time. Any specific right or remedy provided in this Agreement shall not be exclusive but shall be cumulative upon all other rights and remedies set forth in this section and allowed under applicable law. The parties acknowledge that this Agreement expresses their entire understanding and Agreement, and that there have been no warranties, representations, covenants or understandings made by either party to the other except such as are expressly set forth in this Agreement. For the purposes of interpretation, the parties agree that this Agreement shall be interpreted as though co-drafted by both parties hereto and any rules of contract interpretation favoring one party over the other shall be disregarded. If any provision of this Agreement is found invalid or unenforceable under judicial decree or decision, the remainder shall remain valid and enforceable according to its terms. Captions and section headings used in this Agreement are for convenience only and are not a part of this Agreement and shall not be used in construing it. This Agreement shall be governed by the laws of the State of California and you irrevocably submit themselves to the venue and jurisdiction of the State and Federal Courts of the State of California, Los Angeles County.
Pursuant to California Civil Code Section 1717, in the event that any party should default under this Agreement and/or in the event that legal or other action is required to enforce any party’s rights under this Agreement, then the party in default shall pay the party forced to enforce its rights hereunder for the reasonable attorneys’ fees and other related costs and expenses incurred in connection with the enforcement of this Agreement.
BY PARTICIPATING IN THE GUNDRY MD™ WELLNESS AMBASSADOR PROGRAM, I INDICATE MY APPROVAL OF THIS AGREEMENT AND DESIRE TO BECOME A PARTICIPANT UNDER THESE TERMS AND CONDITIONS.
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Date
Last updated: August 13, 2018
EXHIBIT A
COMMISSIONS AND PAYMENT TERMS
Commissions: 25% of completed Front End Product purchases made using your Code.
Payment Terms: While you are a participant in the Program in good standing, you will be paid a commission for each completed Front End Product purchase made by one of your referrals using your Code. A completed Front End Product purchase occurs when: (a) one of your referrals completes a Front End Product purchase on the Website using your Code; and (b) your referral’s order is not subsequently cancelled, returned or refunded. All payments will be made in U.S. Dollars, by the 15th of the following month (e.g., payout for the month of August will be made by September 15th).
Please keep in mind that commissions are only honored for purchases made on the Front End. Upsell and downsell offers are not subject to commission payouts. Commissions will be paid in accordance with the then-current information in your participant account. It is your sole responsibility to keep your information (including, but not limited to, your name, address, email address and telephone number) current and to promptly notify us of any changes.
Last Revised: November 30, 2022
