Terms & conditionsAffiliate Program Operating Agreement </p> <p>This Agreement, made and entered by and between Everest Nutrition, Corp. a Delaware </p> <p>Corporation, with its principal place of business at 501 Silverside Rd, Suite 105, </p> <p>Wilmington, DE 19809, USA and you, the affiliate (“you” or “Affiliate”), contains the </p> <p>complete terms and conditions that apply to your participation in the EverestNutrition.com </p> <p>Affiliate Program (the “Affiliate Program” or “Program” or “Partner Program”) </p> <p>1. Enrollment in the Program<br /> You will submit a complete Affiliate Program application from our site. After we carefully </p> <p>review your application, we will notify you of your acceptance or rejection to the Program. </p> <p>We may reject your application (at our sole discretion) if we feel your site is unsuitable </p> <p>or inconsistent with the mission of Everest Nutrition. If your site is accepted, Everest </p> <p>Nutrition may terminate this Agreement anytime thereafter if your site is determined (at our </p> <p>sole discretion) to be unsuitable for the Program</p> <p>2. Promotion of Our Affiliate Program<br /> Upon your acceptance as an Affiliate Site, we will make available to you a variety of </p> <p>graphic and textual links (the “Links”), which, subject to the terms and conditions hereof, </p> <p>you may display as often and in as many areas of your site as you desire. The Links will </p> <p>serve to identify your site as a member of our Affiliate Network and will establish a link </p> <p>from your site to ours. </p> <p>Everest Nutrition Agrees To: </p> <p>• Pay Affiliate 35% commission (via Shareasale.com) per successful non fraudulent </p> <p>sale referred from the affiliate site, with exception in rare circumstances where a sale has </p> <p>been tracked on both Shareasale and on MYAP (Everest Nutrition’s secondary affiliate </p> <p>program), and, where Everest Nutrition is unable to determine which affiliate was the last </p> <p>to refer the customer. In efforts to be fair under such circumstances, Everest Nutrition </p> <p>agrees to pay each credited affiliate, 30% of exactly half the total transaction value. </p> <p>Affiliate Agrees To: </p> <p>• Observe Everest Nutritions’s exclusive rights as to the names of its properties, or </p> <p>any derivatives thereof, within all pay-for-placement and other search engines. This means Affiliate may not bid on any brand terms owned by Everest Nutrition in major search engines and Affiliate may not claim to be Zenerx, Venerx, Mytrox or Everest Nutrition in </p> <p>any pay-for-placement or other search engines. If Affiliate violates this policy, Affiliate </p> <p>will be terminated and Everest Nutrition reserves the right to charge back, and/or disallow </p> <p>any and all commissions.<br /> • Remove all links regarding sweepstakes and other promotions on the date such </p> <p>promotions end, and agree to forfeit any commissions earned after the end date of the </p> <p>promotions if you continue to post such links.<br /> • Place Everest Nutrition Links on your site.<br /> • Have sole responsibility for the development, operation, and maintenance of your </p> <p>site and for all the materials that appear on your site.<br /> • Ensure that all materials posted on your site are not illegal and do not infringe on </p> <p>the rights of any person or entity of any kind. We disclaim all liability for all materials </p> <p>on your site.<br /> • Indemnify, defend, and hold us harmless from all claims, damages, and expenses </p> <p>relating to the development, operation, and contents of your site.<br /> • Ensure that your site does not represent itself as or claim to be an ‘official’ </p> <p>Zenerx, Venerx, Mytrox or Everest Nutrition site. Affiliates must represent themselves as </p> <p>‘affiliates of’ EverestNutrition.com.<br /> • Submit the URLs for all sites you plan to use to promote EverstNutrition.com and its </p> <p>related products/brands via e-mail to affiliates@everestnutrition.com </p> <p>Publicity </p> <p>You shall not create, publish, distribute, or permit any written material that makes </p> <p>reference to us without first submitting such material to us and receiving our consent. </p> <p>Confidentiality </p> <p>Except as otherwise provided in this Agreement or with the consent of the other party </p> <p>hereto, each of the parties hereto agrees that all information, including, without </p> <p>limitation, the terms of this Agreement, business and financial information, customer and </p> <p>vendor lists, and pricing and sales information, concerning us or you, respectively, or any </p> <p>of our Affiliates provided by or on behalf of any of them shall remain strictly confidential </p> <p>and secret and shall not be utilized, directly or indirectly, by such party for its own </p> <p>business purposes or for any other purpose except and solely to the extent that any such </p> <p>information is generally known or available to the public through a source or sources other </p> <p>than such party hereto or its affiliates. </p> <p>Limitation of Liability </p> <p>We will not be liable for indirect, special, or consequential damages, or any loss of </p> <p>revenue, profits, or data, arising in connection with this Agreement or the Affiliate </p> <p>Network, even if we have been advised of the possibility of such damages. Further, our </p> <p>aggregate liability arising with respect to this Agreement and the Affiliate Program will </p> <p>not exceed the total commissions paid or payable to you under this Agreement. </p> <p>Limited License </p> <p>We grant you a nonexclusive, nontransferable, revocable right to access our site through the </p> <p>Links solely in accordance with the terms of this Agreement, for the sole purpose of linking </p> <p>your site to our site, solely for the purpose of identifying your site as a participant in </p> <p>the Program. You may not alter, modify, or change the Links in any way. You are only </p> <p>entitled to use the Links to the extent that you are a member in good standing of the </p> <p>Everest Nutrition Affiliate Program. We may revoke your license anytime by giving you </p> <p>written notice. </p> <p>Disclaimers </p> <p>• We make no express or implied warranties or representations with respect to the </p> <p>Zenerx Web site or the Everest Nutrition Affiliate Program (including, without limitation, </p> <p>warranties of fitness, merchantability, noninfringement, or any implied warranties arising </p> <p>out of course of performance, dealing, or trade usage).<br /> • We make no representation that the operation of our site will be uninterrupted or </p> <p>error-free, and we will not be liable for the consequences of any interruptions or errors.<br /> • In rare circumstances where one sale ID has tracked in more than one affiliate </p> <p>channel as having been credited to more than one affiliate, Everest Nutrition will make </p> <p>every effort to be as fair as possible in determining “last referring source” and who gets </p> <p>the commission. Where click date is not available, commissions may be split 50/50 between </p> <p>both affiliates in lieu of being able to determine “last referring source.” </p> <p>Termination </p> <p>The terms of this Agreement will begin upon acceptance of your application. This Agreement </p> <p>shall commence on the date of approval of your Affiliate Program application and shall </p> <p>continue thereafter in full force and effect until terminated at any time by either party by </p> <p>giving the other party written notice of termination. Upon termination of this Agreement for </p> <p>any reason, you agree to immediately cease use of, and remove from your site, all Links to </p> <p>our site, and all Zenerx.com trademarks, trade dress, and logos, and all other materials </p> <p>provided by or on behalf of us to you pursuant hereto or in connection with the Program. </p> <p>Modifications </p> <p>We may modify any of the terms and conditions of this Agreement at any time. You will be </p> <p>notified by email, and a change notice will be posted on our site. If the modifications are </p> <p>unacceptable to you, your only recourse is to terminate this Agreement. Your continued </p> <p>participation in this Affiliate Program after a change notice has been posted will </p> <p>constitute binding acceptance of the change. </p> <p>Independent Contractors </p> <p>You and Everest Nutrition are independent contractors. You agree that you do not have </p> <p>authority to make or accept any offers or representations on our behalf. </p> <p>Representations and Warranties </p> <p>You hereby represent and warrant to us as follows: </p> <p>1. This Agreement has been duly and validly executed and delivered by you and </p> <p>constitutes your legal, valid, and binding obligation, enforceable against you in accordance </p> <p>with its terms. </p> <p>2. The development, operation, and contents of your site do not infringe upon the </p> <p>copyright, trademark, or any other right of any person or entity. </p> <p>Independent Investigation </p> <p>You acknowledge that you have read this Agreement and agree to all its terms and conditions. </p> <p>You understand that we may at any time (directly or indirectly) solicit customer referrals </p> <p>on terms that may differ from those contained in this Agreement or operate Web sites that </p> <p>are similar to or which may at times, compete with your Web site. </p> <p>You have independently evaluated the desirability of participating in the Everest Nutrition </p> <p>Affiliate Program and are not relying on any representation, guarantee, or statement other </p> <p>than as set forth in this Agreement. </p> <p>Fraud </p> <p>If you commit fraud or falsify information in connection with the sales of Zenerx through </p> <p>the Links on your site, this Agreement will be terminated immediately. In addition, you will </p> <p>be liable to Everest Nutrition for any and all damages that Zenerx suffers as a result of </p> <p>such actions. You will also be responsible for returning to Everest Nutrition all </p> <p>commissions received for fraudulent/falsified members, and we will not hesitate to pursue </p> <p>all legal causes of action against you to the fullest extent possible under the law. </p> <p>Anti-Predatory Advertising Policy </p> <p>Affiliates will be removed from the Everest Nutrition Affiliate Program and forfeit any </p> <p>pending commissions if they are utilizing or distributing software downloads that </p> <p>potentially enable diversions of commission from other affiliates in our program. </p> <p>Assignment<br /> This Agreement and the rights and obligations hereunder may not be assigned by you without </p> <p>prior written consent of Everest Nutrition. </p> <p>Reservation of Rights </p> <p>Everest Nutrition may terminate this Agreement at any time if your site is determined (at </p> <p>our sole discretion) to be unsuitable for the Program, even if your site has not changed </p> <p>since the time that your Affiliate Program application was accepted. Everest Nutrition also </p> <p>reserves the right to monitor Affiliate sites at any time to determine whether they are in </p> <p>compliance with this Agreement. </p> <p>Governing Law </p> <p>This Agreement will be governed by the laws of the United States and the State of Delaware, </p> <p>without reference to rules governing choice of laws. Any action relating to this Agreement </p> <p>must be brought in the federal or state courts located in Delaware, and you irrevocably </p> <p>consent to the jurisdiction of such courts. You may not assign this Agreement, by operation </p> <p>of law or otherwise, without our prior written consent. Subject to that restriction, this </p> <p>Agreement will be binding on, inure to the benefit of, and enforceable against the parties </p> <p>and their respective successors and assigns. Our failure to enforce your strict performance </p> <p>of any provision of this Agreement will not constitute a waiver of our right to subsequently </p> <p>enforce such a provision or any other provision of this Agreement. </p> <p>EMAIL COMPLIANCE AGREEMENT </p> <p>Affiliate agrees to always comply with the requirements of the most recent version of the </p> <p>CAN-SPAM Act (the .Act.) in its distribution of email that contains messaging regarding </p> <p>Zenerx or Everest Nutrition. More specifically, email that meets this criteria: </p> <p>• May only be sent to recipients who have expressly agreed directly with Affiliate, in advance, to receive such communications from Affiliate.<br /> • Must clearly and conspicuously identify that the message is an advertisement or solicitation, unless recipient has given prior affirmative consent to receipt of the message. Affirmative consent means that the recipient expressly consented to receive the message either in response to a clear and conspicuous request for such consent or at the recipient’s own initiative.<br /> • Must clearly and conspicuously notify the recipient of the opportunity to decline to receive further commercial email from Affiliate.<br /> • Must provide a valid physical postal address of Affiliate.<br /> • Must provide a functioning return email address or other Internet-based mechanism, clearly and conspicuously displayed, that a recipient may use to submit, in a manner specified in the commercial email, a reply email or other Internet-based mechanism a request not to receive future commercial email from Affiliate. The return address or Internet-based mechanism must be capable of receiving such messages for at least thirty (30) days after the transmission of the original message. Affiliate may not send subsequent commercial emails more than ten (10) business days after the recipient’s request not to receive further emails has been received (unless there is a subsequent affirmative consent by the recipient to receive such emails.) Once Affiliate receives such a request, Affiliate may not sell, lease, exchange or otherwise transfer or release the email address of the recipient.<br /> • May not contain materially false or materially misleading header information, or deceptive subject heading.<br /> • May not contain any material whatsoever, that could be deemed sexually or otherwise explicit, offensive, violent, pornographic or which contains hate messages or prejudice of any kind.</p> <p>In addition, before distribution of email that contains messaging regarding Zenerx, Affiliate agrees:</p> <p>(1)to send the email addresses of all intended recipients of such email to Everest Nutrition, or a third-party designated by Everest Nutrition, so that Everest Nutrition may identify those individuals who have notified Everest Nutrition that they do not want to receive emails from or about Everest Nutrition’s products, and<br /> (2)to suppress the email addresses of those individuals, as identified by Everest Nutrition. </p> <p>Affiliate may not initiate or assist in the transmission of commercial email using an email address: </p> <p>(1)that was collected through automated means, from a third party web site in violation of that third party’s posted privacy policy, or<br /> (2)that was generated through automated means by combining names, letters or numbers into numerous permutations. Affiliate may not conduct fraudulent activities related to electronic mail, including but not limited to the material falsification of header or transmission information, the unauthorized use of someone else’s computer to send bulk commercial email, and the registration of an email account that materially falsifies the identity of the actual registrant. </p> <p>Upon Everest Nutrition’s request, Affiliate shall provide Everest Nutrition with documentation demonstrating that the recipients consented to receive the email at issue.<br /> In addition, in the event of a breach of this Email Agreement by Affiliate and/or a third party or licensee, in addition to all other remedies available to it, Everest Nutrition shall have the right to refuse to make payments to Affiliate as a result of Affiliate’s efforts promoting Everest Nutrition products, which efforts cannot be verified by Affiliate as having complied with the terms and conditions of this Email Agreement. Affiliate agrees to indemnify, defend and hold Everest Nutrition Corp harmless from any cost, expense or liability arising out of any breach or alleged breach of your obligations under this Agreement. </p> <p>PROHIBITION AGAINST SOLICITATION ACTIVITIES BY NEW YORK STATE RESIDENT AFFILIATES: </p> <p>It is imperative that ALL NY State Resident Affiliates agree that solicitation activities on behalf of Everest Nutrition within the State of New York shall be limited to providing a link on Affiliate’s website to the Everest Nutrition’s own websites including but not limited to Zenerx.com, Venerx.com, Mytrox.com & AspireWeightLoss.com. </p> <p>Affiliate acknowledges that under current New York State law, further solicitation and promotional activities by Affiliate within New York State may subject the Everest Nutrition to liability for collecting New York State sales tax on all sales to New York customers. Therefore, as a condition of participation in the Everest Nutrition Affiliate Program, Affiliate is prohibited from engaging in any solicitation activities in New York State intended to refer potential customers to the Everest Nutrition, including, but not limited to: distributing flyers, coupons newsletters and other printed materials, or electronic equivalents of such materials; engaging in verbal solicitation, including in-person referrals or initiating telephone calls; and sending emails intended to refer customers to the Everest Nutrition. </p> <p>Affiliate may not act as or portray self or his/her website as a sales agent of Everest Nutrition. Affiliate may promote Everest Nutrition directly on his/her website(s) in the form of advertising but may not advertise Everest Nutrition or its products/brand names outside of his/her website(s), with intent to drive traffic to his/her own website for sole purpose of converting sales for Everest Nutrition. </p> <p>The following pertains only if the Affiliate is an organization, club, or non-profit group; such affiliates shall maintain prominently on its website information alerting its members to the prohibition against solicitation activities in New York State as described above. Again this only pertains to websites of organizations, clubs and non profit groups.</p> <p>Affiliates found to be in breach of this prohibition or any other listed above, may be subject to termination, possibly without warning. </p> <p>All terms and conditions of the Everest Nutrition Affiliate Operating Agreement remain in full force and effect.</p> <p>Last revised: December 11th, 2009 I agree with terms & conditions