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  • This Vous Vitamin Marketing Affiliate Agreement (“Agreement”) is made and entered into as of
  • Date Format: MM slash DD slash YYYY
  • (the “Effective Date”), by and between
  • a(n)
  • (“Affiliate”), and Vous Vitamin, LLC, an Illinois limited liability company. Each of Vous and Affiliate are referred to herein as a “Party” and collectively as the “Parties.”


    WHEREAS, Vous is a provider of customized vitamins and other supplements (the “Products”);


    WHEREAS, Vous desires to promote its business and be introduced to new prospective clients (“Prospects”), which are current and/or prospective clients of Affiliate; and


    WHEREAS, Affiliate has the necessary contacts, capabilities, connections and resources to engage in the marketing and promotion of the Products to suitable Prospects, and desires to do so according to the terms and conditions set forth in this Agreement.


    NOW THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

    Article I
    Appointment of Marketing Affiliate

    1.1 Affiliate is hereby appointed a nonexclusive marketing affiliate of the Products pursuant to this Agreement and during the Term. Affiliate accepts such appointment and agrees to use reasonable efforts to promote the Products to Prospects.


    1.2 This Agreement is not exclusive to either Party. Vous reserves the unrestricted right to market and sell the Products itself, and to grant to others the right to market and sell the Products, anywhere in the world. Affiliate reserves the unrestricted right to market and sell the goods and services of itself and any other party, including products that may compete directly or indirectly with the Products, subject only to Affiliate’s confidentiality obligations under this Agreement.

    Article II
    Marketing of the Products

    2.1 Affiliate is authorized to introduce Vous and the Products to Prospects, and to interest them in purchasing the Products. Affiliate’s authorized actions shall include, but not necessarily be limited to: (i) the distribution of discount codes received from Vous to Prospects, enabling new Prospects to receive a special discount on their initial order of the Products, and identifying Prospects to Vous as originating from Affiliate when placing their first order; (ii) reproduce and distribute health and wellness articles and blog posts supplied by Vous, solely in unaltered and unedited form, on Affiliate’s websites, social media pages, and other promotional materials, including printed and electronically distributed newsletters of Affiliate; (iii) provide links to the Vous website on Affiliate’s website and social media pages; and (iv) use the VOUS VITAMIN® trademark and logo to indicate that Affiliate is a marketing affiliate of Vous and to promote the sales of Products to Prospects.


    2.2 Affiliate shall use the VOUS VITAMIN® trademark and logo only in unmodified form, solely in association with the promotion and sale of Products, and only in the manner permitted under this Agreement. Affiliate shall not use the VOUS VITAMIN® trademark and logo in any manner that would tarnish or dilute their distinctive quality, reputation and goodwill, or that would otherwise reflect adversely on Vous or the Products. Affiliate acknowledges that Vous is the owner of the VOUS VITAMIN® trademark and logo, and that all use of the VOUS VITAMIN® trademark and logo by Affiliate shall inure solely to the benefit of Vous.


    2.3 As all Products are formulated for adults eighteen (18) years of age and older, Affiliate shall not knowingly promote the sale of Products to children under that age, and shall not create or use advertising content, or advertising media, specifically directed to, designed for or created for children under that age.


    2.4 Affiliate shall not issue or caused to be issued any bulk email messages (i.e., SPAM) to market or promote the Products, that identify Vous, that contain either the VOUS VITAMIN® trademark or logo, that contain a Vous promotional code, or that contain a link to the Vous website. Affiliate may only identify Vous, include the VOUS VITAMIN® trademark or logo, include a Vous promotional code, or include a link to the Vous website in emails to Prospects if such Prospects have previously consented to receiving promotional communications from Affiliate.


    2.5 Affiliate grants to Vous a nonexclusive, nontransferable (except as expressly permitted herein), royalty-free right and license to use Affiliate’s business name, trademarks, and logos during the Term, in unmodified form, to indicate that Affiliate is a marketing affiliate of Vous.

    Article III
    Commissions on the Sale of Products

    3.1 Vous shall pay Affiliate a commission on the sale of Products to Prospects pursuant to the terms of Schedule I of this Agreement.

    Article IV
    Term and Termination

    4.1 The term of this Agreement (“Term”) shall commence on the Effective Date, and shall continue for so long as Affiliate continues to actively market Products to Prospects, unless earlier terminated pursuant to the terms of this Agreement.


    4.2 Either Party may terminate this Agreement for any reason, with or without cause, immediately upon written notice to the other Party. Such notice may be given via email, or correspondence by U.S. mail or courier to a Party’s principal place of business.


    4.3 Upon termination of this Agreement for any reason, Affiliate shall promptly, and in any event within ten (10) business days of such termination: (i) cease all marketing efforts relative to the Products; (ii) cease all distribution of Vous discount codes; (iii) cease all use of the VOUS VITAMIN® trademark and logo, both online and in printed form, including, without limitation, deleting all website and social media content of Affiliate referencing Vous, the VOUS VITAMIN® trademark or logo, or linking to the Vous website; and (iv) cease all reproduction and distribution of health and wellness articles and blog posts supplied by Vous.


    4.4 Any termination of this Agreement, other than as a result of a material breach of its terms and conditions by Affiliate, shall not relieve Vous of its obligation to pay commissions payable to Affiliate at the time of termination, pursuant to Article III of this Agreement.

    Article V
    Additional Terms and Conditions

    5.1 This Agreement is subject to the Vous Vitamin Standard Terms and Conditions, a copy of which is appended to this Agreement as Schedule II and which forms an integral part hereof.

    IN WITNESS WHEREOF, the Parties have executed this Vous Vitamin Marketing Affiliate Agreement as of the Effective Date.

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  • Date Format: MM slash DD slash YYYY
  • SCHEDULE I
    COMMISSIONS PAYABLE TO AFFILIATE

    1. Commissions shall be paid by Vous to Affiliate for the purchases of Products by new Prospects directly from Vous and occurring within a one (1) year period commencing on such Prospect’s first purchase of Products, as indicated by a Prospect’s first use of a special discount code previously supplied by Vous to Affiliate and that is unique to Affiliate.

    2. Commissions shall be based upon the quantity of Products purchased by a Prospect, as follows:

    Quantity of Product Purchased in a transaction in the First YearCommission Payable to Affiliate
    One (1) month supplyFive dollars ($5 USD)
    Three (3) month supplyTen dollars ($10 USD)
    Six (6) month supplyTwenty dollars ($20 USD)
    One (1) year supply or moreForty dollars ($40 USD)

    1. The maximum aggregate commission payable to an Affiliate for the sales of Products to any individual Prospect is forty dollars ($40 USD).

    2. The sale price of the Products, and the quantity of any of the Products that constitutes a month’s supply, shall be determined by Vous in its sole discretion.

    3. No commissions shall be payable to Affiliate for any sale of Products that is cancelled prior to shipment, for which no payment or insufficient payment is received, or for which (or to the extent that) the purchase price is refunded to credited to a Prospect, as the result of a return of Products or otherwise, in Vous’ sole discretion. In the event that Vous, in its sole discretion, refunds or credits all or a portion of a purchase price to a Prospect, any associated commission previously paid to Affiliate shall be deducted against any future commissions payable to Affiliate.

    4. No commissions shall be payable to Affiliate for the sale of any Products to a Prospect that Vous determines has previously purchased Products prior to their first use of a special discount code supplied by Vous to Affiliate. Nothing shall require Vous to honor any special discount code under such circumstances.

    5. Commissions shall be paid by Vous within forty-five (45) days following the close of each calendar quarter on sales transactions having a Return Window concluding within such calendar quarter. As used herein, “Return Window” means forty-five (45) days following the date of delivery of Products to a Prospect.

    6. Vous reserves the right, in its sole discretion, to refuse to fulfill any order and to refuse to sell Products to any Prospect, for any reason.

    7. Affiliate must submit a complete and accurate W-9 tax form to Vous as a precondition to receiving any commission payment.
  • SCHEDULE II
    VOUS VITAMIN STANDARD TERMS AND CONDITIONS

    Section 1
    Definitions

    1.1 The following terms used in this Agreement shall have the meanings stated below:

    (a) “Confidential Information” means any and all non-public, proprietary or confidential information, including, without limitation, trade secrets, know-how and proprietary information, formulas and formulations, data, designs, schematics, techniques, plans, procedures, processes or any other information relating to any research project, work in process, future development, scientific, engineering, manufacturing, marketing or business plans or financial or personnel matters relating to either Party or its services, products, sales, suppliers, customers, employees, investors or affiliates. Confidential Information includes (i) the terms and conditions of this Agreement; (ii) information disclosed in a written or other tangible form which is clearly marked with a “confidential” or “proprietary” legend or other comparable legend; (iii) information disclosed orally or visually which is identified as confidential at the time of disclosure; and (iv) any other information which a reasonable person would deem confidential under the context of disclosure or due to the nature of the information itself, provided that “Confidential Information” shall not include the items listed in Section 2.2 of these Standard Terms and Conditions.

    (b) “Disclosing Party” means the Party disclosing, supplying or otherwise making available its Confidential Information to the other Party.

    (c) “Indemnified Party” means the Party seeking indemnification pursuant to Section 4.1.

    (d) “Indemnifying Party” means the Party responsible for indemnification pursuant to Section 4.1.

    (e) “Receiving Party” means the Party receiving or otherwise being provided access to the Confidential Information from the other Party.

    Section 2
    Confidentiality

    2.1 Each Receiving Party agrees to keep confidential the Disclosing Party’s Confidential Information subject to the terms and conditions of this Section 2. The Receiving Party will safeguard the Confidential Information of the Disclosing Party using the same degree of care as it uses to safeguard its own Confidential Information, but in no case less than a reasonable degree of care. The Receiving Party will limit (a) access to the Disclosing Party’s Confidential Information to those of its personnel and agents with a need to know such Confidential Information for the performance of obligations under this Agreement and (b) use of the Disclosing Party’s Confidential Information to the exclusive purposes set forth in this Agreement. Unless otherwise agreed to by the Parties in writing, the Confidential Information of the Disclosing Party is and will remain the sole and exclusive property of the Disclosing Party, and the Receiving Party will have no right in or to the Disclosing Party’s Confidential Information.

    2.2 Confidential Information will not include information to the extent that the Receiving Party can show that (a) such information is or became publicly available other than through any act or omission of the Receiving Party in breach of this Agreement; (b) such information was received by the Receiving Party from a third party, which third party, to the Receiving Party’s knowledge, had no obligation of confidentiality to the Disclosing Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure; or (d) such information was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.

    2.3 Notwithstanding the foregoing, in the event a subpoena or other legal process is served upon the Receiving Party that, pursuant to the requirement of a governmental agency or law with jurisdiction over the Receiving Party, compels disclosure of the Disclosing Party’s Confidential Information, the Receiving Party may disclose such portion of the Disclosing Party’s Confidential Information required to be disclosed, provided that the Receiving Party notifies the Disclosing Party promptly of such request (unless such notice is prohibited by law, rule or regulation), and cooperates with the Disclosing Party, at the Disclosing Party's expense, in the Disclosing Party’s efforts to contest the legal validity or scope of such subpoena or other legal process.

    2.4 Each Party acknowledges that it would be difficult to fully compensate for damages that may result from the breach or threatened breach of the provisions of this Section 2 and, accordingly, the other Party shall be entitled to seek injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions (without the requirement to post an injunction bond or other surety), to enforce such provisions. This provision with respect to injunctive relief will not, however, diminish a Party's right to seek other legal, contractual or equitable remedies, or to claim and recover damages in the event of a breach of this Section 2.

    2.5 Except when disclosure is permitted pursuant to this Section or as may otherwise be required pursuant to the requirement of a governmental agency or law with jurisdiction over the Receiving Party, neither Party will disclose the economic terms of this Agreement to any third party without prior written approval from the other Party, provided that both Vous and Affiliate may disclose during the Term that Affiliate is a marketing affiliate of Vous.

    Section 3
    Representations and Warranties

    3.1 Vous represents and warrants to Affiliate that:

    (a) Vous is validly existing and in good standing under the laws of the jurisdiction of its formation.

    (b) Vous has all requisite company power and authority to execute and deliver this Agreement and any purchase agreement with a Prospect concerning the Products, and to perform its obligations under the terms of this Agreement and any agreement with a Prospect concerning the Products.

    (c) Vous shall materially comply with applicable federal, state and local laws, rules and regulations applicable to its provision of the Products to Prospects.

    (d) The VOUS VITAMIN® trademark and logo, when used by Affiliate in the manner permitted herein, shall not infringe the trademark rights of any other person or entity.

    3.2 Affiliate represents and warrants to Vous that:

    (a) Affiliate is validly existing and in good standing under the laws of the jurisdiction of its formation.

    (b) Affiliate has all requisite power and authority to execute and deliver this Agreement and to carry out and perform its obligations under the terms of this Agreement.

    (c) Affiliate shall materially comply with all applicable federal, state, and local laws, rules, and regulations applicable to its performance under this Agreement including without limitation, the Federal Trade Commission (FTC) Endorsement Guides, which require that material connections between advertisers and endorsers be prominently disclosed.

    (d) Affiliate’s business name, trademarks and logos, when used by Vous in the manner permitted herein, shall not infringe the trademark rights of any other person or entity.

    3.3 EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY DISCLAIMS ALL, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

    Section 4
    Indemnification

    4.1 Each Party shall indemnify, defend and hold the other and its employees, officers, directors, shareholders and agents harmless for any and all losses, damages, costs (including reasonable attorneys’ fees), settlements and liabilities resulting from third party claims, suits, actions or proceedings arising from or relating to the gross negligence, willful misconduct, or a violation of law of itself or its personnel or agents in connection with this Agreement. An Indemnifying Party’s obligations under this Section 4 shall not be subject to any exclusions or limitations on damages or liability with respect to amounts payable to an Indemnified Party.

    4.2 Upon becoming aware of events giving rise to an indemnification claim under Section 4.1, the Indemnified Party shall provide prompt written notice of such claim, including a reasonable description of the basis thereof, to the Indemnifying Party and allow the Indemnifying Party to control the defense of such third party claim at the Indemnifying Party’s expense, provided that the failure to provide prompt notice shall only relieve an Indemnifying Party of its indemnification and defense obligations if, and only to the extent that, the Indemnifying Party is materially prejudiced by such failure. The Indemnifying Party shall not settle any claim without the Indemnified Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed) if such settlement would result in injunctive relief against, or admission of wrongdoing by, the Indemnified Party. If the Indemnifying Party elects to control the defense of such third party claim, the Indemnified Party shall have the right to participate in such defense at its own expense. The Indemnified Party shall provide reasonable non-monetary assistance to the Indemnifying Party in connection with the defense and/or settlement of any third party claim.

    Section 5
    Limitations on Liability

    5.1 APART FROM EACH PARTY’S INDEMNIFICATION AND DEFENSE OBLIGATIONS TO THE OTHER UNDER THIS AGREEMENT, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER FOR ALL CLAIMS OR LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), STRICT LIABILITY, INFRINGEMENT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING DIRECTLY OR INDIRECTLY FROM THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNTS PAYABLE TO THE OTHER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.

    5.2 NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE CONTRARY, EXCEPT IN THE EVENT OF WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS OR REVENUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PRODUCTS, EVEN IF THE PARTIES HAD KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.

    Section 6
    Independent Contractor Relationship

    6.1 The Parties acknowledge that their relationship is one of independent contractors in connection with this Agreement. This Agreement shall not create any relationship of employment, agency or partnership between the Parties nor shall it give either Party any authority to bind or commit the other Party.

    Section 7
    Miscellaneous Provisions

    7.1 This Agreement may not be assigned by either Party without the prior written consent of the other Party, except that either Party may assign this Agreement without the other Party’s written consent to (i) an affiliate; (ii) any corporation or other entity resulting from merger or consolidation with such assigning Party or to any person or entity that acquires all or substantially all of the assets of such Party’s business to which this Agreement relates; and (iii) its financing sources as collateral. Any assignment in violation of this Section 7.1 shall be null and void and of no force and effect.

    7.2 This Agreement sets forth the entire understanding and agreement of the Parties with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications, whether oral or written, between the Parties with respect to the subject matter hereof.

    7.3 No amendment or modification of this Agreement shall be effective unless made in writing and signed by an authorized representative of each Party. No waiver of any breach of this Agreement shall be effective unless made in writing and signed by an authorized representative of the waiving Party.

    7.4 If any phrase, clause or provision of this Agreement is declared invalid or unenforceable by a court of competent jurisdiction or arbiter, such phrase, clause or provision shall be deemed severed from this Agreement, but will not affect any other provision of this Agreement, which shall otherwise remain in full force and effect.

    7.5 Vous and Affiliate intend that this Agreement shall not benefit or create any right or cause of action in favor of or for the benefit of any person or entity other than the Parties.

    7.6 This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving effect to principles of conflict laws. Each of the parties irrevocably submits, in any legal action or proceeding relating to this Agreement, to the jurisdiction of the state and federal courts located in Cook County, Illinois, and consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient forum.

    7.7 The headings assigned to the articles, sections and subsections of this Agreement are for convenience only and shall not limit the scope and applicability of the articles, sections and subsections.

    7.8 No terms or conditions of either Party’s invoice, purchase order, or other administrative document (unless signed by both Parties and expressly referencing that it amends this Agreement) will be effective as a modification of the terms and conditions of this Agreement, regardless of the other Party’s failure to object to such.

    7.9 Neither Party shall be deemed to be the drafter of this Agreement and if this Agreement is construed in any court or arbitration proceeding, said court or arbiter shall not construe this Agreement or any provision hereof against either Party as the drafter hereof.

    7.10 This Agreement may be executed in one or more counterparts (including by means of facsimile or PDF), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Electronic signatures shall be acceptable.

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