Last Updated on December 17, 2020
Vital Elements may offer you an opportunity to become an independent Vital Elements Affiliate (“Affiliate”), wherein you have the opportunity to earn additional money for Vital Elements products, services and accounts that you sell. Vital Elements reserves the sole and exclusive right to determine the amount of remuneration each Affiliate will receive in exchange for the Affiliate’s efforts. Affiliate commission is further discussed herein. See also Vital Elements (insert terms of service), which apply to you in your role as Affiliate, unless otherwise expressly provided for.
This Affiliate Agreement (“Agreement”) governs your application for, and any subsequent participation in, Vital Elements’ Affiliate program. By clicking “I Accept the Terms and Conditions” and submit, you thereby accept the terms of this Agreement, you indicate that You have read and understood this Agreement and agree that you are bound by its terms.
SECTION 1 – PARTIES All references to “Vital Elements” herein means and refers to Four Horsemen, Inc, doing business as Vital Elements. All references to “You” and “Your” mean and refer to the person or entity who has executed this Agreement. Vital Elements and You are each referred to herein as a “Party,” and collectively as the “Parties”.
SECTION 2 – APPLICATION You agree to provide all information requested by Vital Elements in connection with Your Affiliate application, and You affirm that all information that You provide is truthful and accurate. You understand and agree that Vital Elements retains sole and exclusive discretion to determine whether You qualify for participation in Vital Elements’ Affiliate program. Not everyone who applies for Vital Elements’ Affiliate program will qualify to participate.
SECTION 3 – CONSENT TO BE CONTACTED You expressly consent to be contacted at the email address and the phone number You provide in Your application about Your application and the Affiliate program, including through automated dialing systems, texts and artificial or pre-recorded messages. This consent is a material condition of this Agreement and may not be revoked except in writing by both Parties.
SECTION 4 – COMPENSATION If Your application to become an Affiliate is approved by Vital Elements, you will receive a unique Affiliate ID. The Affiliate ID will be incorporated within each URL which You will use to advertise Vital Elements. You will have the opportunity to receive a commission for each sale (“Sale”) that is registered using Your Affiliate ID.
In the event that a prospect (“Prospect”) has multiple Affiliate cookies (“Cookies”), the most recently acquired Cookie will determine which Affiliate is credited with a Sale.
Provided that the Sold Account (as defined below) remains in good status within thirty (30) days from the Sale, You will be paid a commission for each Sold Account that generates a payment to Vital Elements in a month (“Commission”). Except as otherwise provided herein, Commission payments will be paid on the 5thst (16th through EOM) and 20th (1stthrough 15th) of each month following Vital Elements’ receipt of payment for a Sold Account, subject to the other terms of this Agreement. In the event the 5th or 20th of each month falls on a holiday, Commission payments will be paid on the business day preceding the holiday. All Commission payments are based on the amount of fees received by Vital Elements, less sales taxes and shipping.
The Commissions are as follows:
- Standard Affiliate: 30% (applicable to anyone) Commission on purchased through your individual link.
- Founder: 40% Commission on purchases through your link.
- Tier II: 5% Commission on Tier II signups for both Standard and Founders.
All Commissions and Bonuses are paid in U.S. Dollars (USD) or otherwise in currencies offered by the payment provider. Some payment methods may incur processing fees that may be deducted from Your Commissions or Bonus payment.
Once a Commission of $100 (USD) or more is earned, You will need to register with our third-party payment provider to receive payment of Commissions. This means You are authorizing third party companies to contact You. Before You can be paid any Commission or Bonus, You must provide Vital Elements a completed W-8 or W-9 tax form, as instructed by Vital Elements, as well as any supporting documentation requested by Vital Elements or its third-party payment provider. You will be deemed to have permanently waived all rights to Commissions or Legacy Bonuses that were earned more than 120 days before submitting a completed W-8 or W-9 tax form or any ancillary supporting documentation that is requested to confirm the information on your tax form. If You are not a resident of the United States, Vital Elements may withhold tax (including without limitation VAT) where required by applicable law. You are solely responsible for complying with all tax laws in Your respective jurisdiction(s) including, but not limited to, the payment of all required taxes, and filing of all returns and other required documents with, the applicable governing body(ies).
Affiliates will not be paid any Commissions or Bonuses for payments made on Affiliate’s own user account(s). Affiliates are not permitted to open a Vital Elements account under the name of another person or entity, under a fictitious name, or under any name merely for the purpose of obtaining Commissions, Bonuses or any other compensation. Affiliates may not pay for another person’s or entity’s account. Affiliates are not permitted to offer cash rebates or other monetary incentives to obtain Sales or Legacy Sales.
Commissions and Bonuses are paid only for transactions that actually occur between Vital Elements and a Sale or a Legacy Sale and in which payment is received by Vital Elements. If payment for a Sold Account or a Legacy Account later results in a refund or chargeback, and if a Commission or Bonus was paid to You for that Sold Account or Legacy Account payment, then the Commission or Legacy Bonus will be deducted from Your future Commissions and/or Legacy Bonuses.
If Vital Elements determines, in its sole and exclusive discretion, that any Sale or Legacy Sale was procured fraudulently or as a result of any violation of this Agreement or applicable law, no Commission or Legacy Bonus will be paid for such Sale or Legacy Sale and, for past sales, such payment amounts shall be deducted from Your future Commissions and Legacy Bonuses, and Vital Elements may terminate this Agreement immediately without Vital Elements having any liability to You.
SECTION 5 – TERM AND TERMINATION The term of this Agreement will begin the earlier of (i) when You click “I accept the Terms and Conditions” and submit; or (ii) Your participation in the Affiliate program is approved. Your participation in the Vital Elements Affiliate program will continue month-to-month until terminated. Either Party may terminate this Agreement at any time, with or without cause, by giving the other Party thirty (30) days’ written notice of termination. If, in our sole discretion, You fail, or we suspect that You have failed, to comply with any term or provision of the Agreement or the Terms of Service, or violated any law, whether in connection with Your use of Vital Elements or otherwise, we may terminate the Agreement or suspend Your access to the Affiliate website (“Website”) at any time without notice to You. In addition, if, based on our data, you have a dispute rate greater than 10%, we may terminate this Agreement or suspend your access to the Website at any time without notice to You. In such instances, and in our sole discretion, we may also for the aforementioned reasons, terminate our relationship and suspend any accounts owned/controlled by You. For the avoidance of doubt, and without limitation for purposes of the foregoing, any violation of the required disclosure will be deemed a material breach of this Agreement. See Appendix A, Section 2, Disclosure. In the event this Agreement is canceled due to Your breach, You immediately forfeit all Commissions, Bonuses, and any other payments owed to You or that may in the future be owed to You without any further liability by Vital Elements to You. This Agreement will terminate automatically if You earn no (zero) Commissions over a 12-month period.
If this Agreement is terminated or canceled, then all provisions that, by their nature, should survive, will survive, including, but not necessarily limited to, all limitations of liability, disclaimers of warranties, indemnity obligations, mandatory arbitration and class action waiver provisions, and exceptions to arbitration. All representations and warranties undertaken by You shall also survive termination or cancellation of this Agreement and/or Your Vital Elements account.
SECTION 6 – ADDITIONAL REPRESENTATIONS AND WARRANTIES In addition to Your other representations and warranties herein, You further represent and warrant that there are no prior or pending government investigations or inquiries of, or prosecutions against You by the Federal Trade Commission (“FTC”), any other federal or state governmental agency, or any industry regulatory authority, anywhere in the world, nor any prior or pending private lawsuits against You which relate to alleged intentional torts or alleged violation of any consumer protection or advertising laws. If You become the subject of such an investigation, inquiry, prosecution, or lawsuit any time after this Agreement is executed, You are required to notify Vital Elements of the same within 24 hours. Vital Elements, in its sole and exclusive discretion, may immediately terminate Your participation in Vital Elements’ Affiliate program, as well as immediately terminate this Agreement, based on any investigation, proceeding, or lawsuit identified pursuant to this paragraph.
SECTION 7 – ENTIRE AGREEMENT This Agreement, Appendix A below, along with Vital Elements’ standard (insert Terms of Service), represents the entire agreement between the Parties and supersedes any other written or oral agreement between the Parties as pertaining to Your Affiliate application and, if approved, Your rights and responsibilities as an Affiliate.
Additional Terms of the Affiliate Agreement and Advertising Rules
These Advertising Rules apply to all activities of Affiliate:
- General Compliance. Affiliate shall publish or otherwise distribute advertisements in strict compliance with all applicable laws and regulations, including without limitation, laws prohibiting deceptive and misleading advertising and marketing, email marketing laws (including the federal CAN-SPAM Act (15 U.S.C. § 7701), data protection laws (including but not limited to the European Union General Data Protection Regulation, U.K. Data Protection Act, California Consumer Privacy Act, and Brazilian General Data Protection Regulation), laws governing testimonials (including the FTC’s Revised Endorsements and Testimonials Guides (16 CFR Part 255 of the Code of Federal Regulations), and all guidelines issued by the FTC. Affiliate is solely responsible for ensuring Affiliate’s compliance with all laws. Affiliates are strictly prohibited from making claims concerning the products and services offered by Vital Elements that are inconsistent with, or beyond the scope of marketing materials produced and made available by Vital Elements on Vital Elements website www.govitalelements.com. Affiliate is prohibited from publishing or otherwise distributing advertisements by telemarketing, fax, or text messaging in any form to any device. Affiliate shall not offer monetary incentives, such as rewards points, cash, or prizes to Prospects in return for their response to an advertisement. Affiliate may, however, offer Prospects information and materials of tangible value including, but not limited to, website templates, information about e-commerce, website design, and online marketing, for reduced or no charge, but only so long as Affiliate accurately describes and delivers such information and materials to the Prospect. Vital Elements retains the sole and exclusive discretion to determine whether Affiliate’s advertising and conduct is in compliance with all laws.
- Disclosure. On any website that Affiliate advertises any Vital Elements service or product, Affiliate must plainly display (i.e., not in a link, or in small font) disclaimer language, such as:
Disclosure: “I am an independent Vital Elements Affiliate, not an employee. I receive referral payments from Vital Elements. The opinions expressed here are my own and are not official statements of Vital Elements or its parent company, Four Horsemen, Inc”.
- Non-Disparagement. Affiliate is not permitted to comment negatively about or disparage the products or services of Vital Elements or any other person or entity, including without limitation the products or services of a Vital Elements competitor. Affiliate is not permitted to engage in any unlawful or deceptive actions with respect to search engine optimization, including, but not limited to, using any technique that generates paid search results based on any trademarks of Vital Elements, any brand name of Vital Elements, or based on the trademarks or brand name of any competitor of Vital Elements, or any other third party. Affiliate shall not direct link to a Vital Elements’ sales page from any paid advertising.
- Social Media. If Affiliate advertises on Instagram or YouTube, then each post must comply with all of the following:
- Each post must contain @Vital Elements or #Vital Elements.
- Each post must contain #ad in a clear and conspicuous location before the text of the description and in all events before the “More” button.
- Each Instagram post must use Instagram’s “Paid Partnership” tool.
- Each YouTube post must contain the word “Ad,” “Advertisement,” “Promotion,” or “Paid Partnership” within the video itself in a font size that is clearly recognizable to the viewer and which appears persistently throughout the length of the video in the top right-hand portion of the video.
If Affiliate is advertising on other forms of written social media (e.g., Facebook, Twitter), Affiliate must comply with the above disclosure restrictions as applicable to each form of social media. Affiliate must also comply with all rules of each social media platform that Affiliate uses.
5. Income and Business Opportunity Claims. Affiliates are expressly prohibited from making any claims that use of Vital Elements will guarantee that the user will make money. If Affiliate’s recruiting efforts include claims related to income Affiliate has made from using Vital Elements or as an Affiliate, the following guidelines must be adhered to:
- Affiliate’s statements must be completely true and accurate and supported by evidence of Affiliate’s experience; and
- Affiliate’s statements must be accompanied by the following disclaimer in clear and conspicuous font and placement: “These were my results. Your results will vary based on a variety of factors including Your education, effort, and market factors. There is no guarantee You will make any money.”
Affiliate is also expressly prohibited from making any express or implied claims that Vital Elements is or provides a business opportunity, franchise opportunity, a “business-in-a-box,” or an assisted marketing plan.
- Vital Elements’ Trademarks. No logo, tagline, trademark, trade name, or trade dress (collectively, the “Vital Elements Trademarks”) owned by Vital Elements may be used, copied, or reproduced by any Affiliate except as set forth below. No Vital Elements intellectual property (or any mark confusingly similar to any Vital Elements intellectual property) is to be registered as a trademark in any country or registered as a domain name by Affiliate in any way in any country.
- Subject to the restrictions below, approved Affiliates are granted a limited, revocable, non-transferrable, and non-assignable license to use the “Vital Elements®” trademark, to advertise Vital Elements online. Any time Affiliate uses the word “Vital Elements” it must be immediately followed by “®”. Affiliate may not use “Vital Elements” or other Vital Elements’ trademarks as part of any URL, domain or website name.
8. Vital Elements retains exclusive ownership of all Vital Elements’ Trademarks and other intellectual property and all of its rights therein. Affiliate shall not promote or provide services to any other business or person that is infringing any of Vital Elements’ intellectual property.
9. Complaint Notification. Affiliate must notify Company of any complaint received by Affiliate regarding any advertisements within twenty-four (24) hours of receiving such complaint. Notice should be sent to email@example.com
10. Independent Contractor. Affiliates are independent contractors of Vital Elements. It is the express understanding and intention of the Parties that no relationship of master and servant nor principal and agent shall exist between Vital Elements and You by virtue of this Agreement. You have no right to act on behalf of or bind Vital Elements in any way, nor share in the profits or losses of Vital Elements. The only compensation available to You is set forth in this Agreement. You are solely and exclusively responsible and liable for all of Your acts or omissions.
11. NO WARRANTY; NO LEADS. Vital Elements does not promise, guarantee or warrant Your business success, income, or sales. You understand and acknowledge that Vital Elements will not at any time provide sales leads or referrals to You. You understand and agree further that this is not a business opportunity, a franchise opportunity, a “business-in-a-box,” or an assisted marketing plan. You are responsible for procuring and paying for any and all materials and resources necessary to operate as an Affiliate as You determine in Your sole discretion.
13. IN NO EVENT SHALL VITAL ELEMENTS’ LIABILITY TO YOU OR YOUR BUSINESS EXCEED THE AMOUNT OF THREE (3) TIMES THE PAYMENTS PAID BY YOU TO VITAL ELEMENTS FOR THE MONTH PRECEDING THE DATE IN WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST VITAL ELEMENTS OCCURRED OR TWO-THOUSAND DOLLARS ($2,000), WHICHEVER IS GREATER.
14. DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION, CLASS ACTION WAIVER, & GOVERNING LAW.
15. As explained in Vital Elements’ Terms of Service, any controversy or claim arising out of or related to this Agreement or Your relationship with us that cannot be resolved through negotiation within 120 days shall be resolved by binding, confidential arbitration administered by the American Arbitration Association (“AAA”), and judgment on the award rendered may be entered in any court having jurisdiction thereof. The sections of the Terms of Service entitled “DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER,” “VITAL ELEMENTS’ ADDITIONAL REMEDIES,” and “GOVERNING LAW AND VENUE” are expressly incorporated herein by reference. Please review the Terms of Service for more information.
16. Indemnity. You agree to protect, defend, indemnify and hold harmless Vital Elements, its officers, directors, employees, owner(s), and parent company(ies) and assigns from and against all claims, demands, and causes of action of every kind and character without limitation arising out of Your conduct, acts, or omissions related to Your application and/or performance of this Agreement including, but not limited to, any breach of this Agreement. Your indemnity obligation includes, but is not limited to, any third party claim against Vital Elements for liability or payments for damages caused by, or other liability relating to, You. This provision expressly survives the termination of this Agreement.
17. Severability. In the event any provision of this Agreement is inconsistent with or contrary to any applicable law, rule, or regulation, the provision shall be deemed to be modified to the extent required to comply with the law, rule, or regulation, and this Agreement and the Terms of Service, as so modified, shall continue in full force and effect.
18. Modification/Amendments. This Agreement and Vital Elements’ standard (insert Terms of Service) may be modified by Vital Elements at any time, with or without prior notice to You. Amendments or modifications to this Agreement or the Terms of Service will be binding on You when they are sent to You via email, or are posted in the affiliate center. No amendment to this Agreement or the Terms of Service shall be valid unless prepared or signed by Vital Elements. Your continued acceptance of Commission or Bonus payments constitutes Your acceptance to any modifications or amendments to this Agreement and the Terms of Service.
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