This Affiliate Network Agreement (together with the Insertion Order Agreement, “Agreement”) is made by and between Beachbody, LLC (“Beachbody”) and the Network, Affiliate and/or Affiliate Network (as identified in the Insertion Order Agreement) (“Network”). Beachbody and Network may be separately referred to herein as “Party” or collectively as “Parties.” In the event of a direct conflict between this Affiliate Network Agreement and any Insertion Order, the terms of the Insertion Order will control.
Network agrees to undertake and complete the services as specified by Beachbody in the Agreement, including adhering to all Ad placement restrictions or channels specified, in accordance with all applicable laws, rules, regulations, codes of practice and the highest industry standards. Network shall position all Ads in such a manner to assure that they are fully and clearly visible to consumers and displayed in a manner similar to that done by other merchants included in the Website or email. In any Ads, Network may only use the materials and content provided by Beachbody (“Creatives”), without change. As used herein, “Ad” shall mean and refer to any advertisement, advertising, or marketing for any Beachbody product or service, including all banner advertisements, email advertisements, and all other advertising as specifically set forth in the Insertion Order Agreement (“IO”).
Network expressly understands that it has read and will ensure full compliance with all applicable Federal Trade Commission rules and regulations, including without limitation the FTC DotCom Disclosure and Endorsement and Testimonial Guidelines. If any Network website content or marketing element includes any review or statements about any Beachbody products or services, then it must be clear to consumers that you have a material connection with Beachbody as a Network. Accordingly, Network is responsible to prominently and clearly disclose its connection to Beachbody with a disclaimer such as “(Website Name) receives compensation as a member of the Beachbody Affiliate Network”. Failure to comply with these terms will be a breach of your Affiliate Network Agreement.
1.2 Flight Dates, Unit Caps and Creative Restrictions
Network shall not place Ads after the expiration of the Flight Dates as set forth in the IO, and shall not place any Ads once the Unit Cap set forth in the IO has been reached. Network also shall not run an Ad more than 48 business hours after Beachbody has sent notification of new Creatives to be used by Network in lieu of previously provided Creatives. In such instances, the expiring Ads may only be placed with the prior express written confirmation of Beachbody. Beachbody shall pay Network only for Units delivered using the proper Creative, and only for Units delivered within the Flight Dates and Unit limitations as set forth in the IO.
1.3 Prohibited Placements
(a) Network shall not place or utilize any Ads that – or place any Ads on any Website that – a reasonable person would conclude noticeably contains, promotes, references or has links to: (i) profanity, sexually explicit materials, hate material, promotion of violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials deemed unsuitable or harmful to the reputation of Beachbody in Beachbody’s sole discretion;
(ii) piracy of software or other content, hacking, phreaking, emulators, ROM’s, or illegal streaming or MP3 activity; (iii) illegal activities, deceptive practices or violations of the intellectual property or privacy rights of others; (iv) personal web pages, non-English language pages, Websites under construction or without content, free hosted pages (e.g., Geocities, Xoom, Tripod, Talk City, or anything similar); or (v) activities generally understood as Internet abuse, including but not limited to the sending of unsolicited bulk electronic mail or the use of spyware.
(b) Network shall not: (i) incentivize or offer points, rewards, cash or prizes for the action of any individual who may see or receive any Ad (“User”) unless it is expressly noted that the Ad is an incentive offer and the Ad and any associated campaign complies with all applicable laws, rules, regulations, and codes of practice; (ii) place misleading statements near an Ad (e.g., “You will win $5,000”) or falsely suggest a link between Beachbody and any third-party, or any third party product or service; (iii) post any Ads using an unauthorized host; (iv) serve Ads, or drive traffic to Ads, using any downloadable applications without the prior written approval of Beachbody which, if provided, is subject in each case to the following condition: Ads delivered in approved downloadable applications may only be shown once per User session when the application is active, enabled and clearly recognizable by the end User as being active and enabled. Serving Ads at any time when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay; (v) use invisible or hidden methods to generate Impressions, Clicks, or transactions that are not initiated by the affirmative action of the end-user; (vi) engage in marketing via facsimile or telemarketing; or (vii) otherwise engage in any misleading, unfair, illegal or deceptive conduct or violate the email guidelines set forth herein.
(c) No Ads may be directed outside the United States unless expressly set forth in the applicable IO or with prior written approval from Beachbody (and only to such countries which are enumerated in the IO).
1.4 Search Ads.
Network must receive Beachbody’s prior written approval to utilize or be part of any keyword, AdWord, or any similar program with any search engine or other entity (“Search Ads”). To the extent Beachbody provides such prior written approval Network’s use of Search Ads shall never: (a) violate guidelines of any search engines being utilized; (b) engage in search engine spam, doorway pages, cloaking, or any other conduct that may be considered unethical or improper; (c) bid on any Beachbody or any third-party trademark, name or proprietary terms in any pay per click, “keyword”, ”adword”, sponsored links or any other similar or related campaign; (d) engage in direct linking unless expressly permitted by the Insertion Order; (e) conduct search Ads falsely suggesting a link between Beachbody and a third party, a third party product, promotion or offer, (f) infringe on any third-party’s intellectual property or other rights, or (g) violate the restrictions set forth in section 3.0(b) herein.
2.1 Suppression Files
Network shall not send any email Ads prior to receipt of Beachbody’s prior express, written consent. Following receipt of express, written consent from Beachbody, and prior to Network sending any email Ads to customers, Beachbody shall provide Network with a suppression file of email addresses to be suppressed or excluded for any Ad campaigns (“Suppression File”). Network and its Publishers (as defined herein) must "scrub" its email file before sending the email Ads to ensure that none of the email addresses from the Suppression File receive Network’s mailings. Network shall not send any email Ads until it has scrubbed its own email file with the Suppression File. Network may not use Beachbody’s Suppression File for any other purpose, and upon termination of this Agreement, or request by Beachbody, will immediately return such file to Beachbody and certify that it has not retained any copies of any portion of such suppression file.
2.2 Email Restrictions.
(a) Network will only send advertisements to United States email addresses (unless approved for International campaigns) for which a message to such address would not constitute a mobile service message as defined by the CAN-SPAM Act (unless expressly authorized by the Insertion Order and then only consistent with applicable FCC regulations governing mobile service messages). All email Ads sent by Network, and Network’s sending of any email Ads, to United States email addresses, must be in compliance with all applicable international, national, state and local laws, rules, regulations, and codes of practice of the country or jurisdiction, including but not limited to all electronic communications and privacy legislation.
(b) Under no circumstances may Network alter any Creatives, material, or other content (including from and subject lines) provided by Beachbody without Beachbody’s prior written consent. Network must submit the final email it intends to use to Beachbody for approval prior to dissemination.
(c) Network may not (i) use any name other than Network's, Network’s Publishers (as defined herein) or Beachbody in the “from” box when sending an email to a consumer, or (ii) use deceptive subject lines, including but not limited to claims falsely suggesting a prior relationship or that a recipient has “won” something.
(d) Network shall not send any commercial or other email to any person who has requested not to receive email from Network and/or Beachbody, or use any name contained in Beachbody’s Suppression File for any purpose other than as expressly provided herein.
(e) Network shall not send Ads via an e-newsletter or other emails with multiple advertisements without complying with applicable FTC guidance and/or regulations, or any other applicable international, national, state and local law, rule, regulation, or code of practice.
(f) Network shall not place or utilize any Ads that a reasonable person would conclude noticeably contains, promotes, references or has links to: (i) profanity, sexually explicit materials, hate material, promotion of violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials deemed unsuitable or harmful to the reputation of Beachbody in Beachbody’s sole discretion;
(ii) piracy of software or other content, hacking, phreaking, emulators, ROM’s, or illegal streaming or MP3 activity; (iii) illegal activities, deceptive practices or violations of the intellectual property or privacy rights of others; (iv) personal web pages, non-English language pages, Websites under construction or without content, free hosted pages (i.e., Geocities, Xoom, Tripod, Talk City, or anything similar.); or (v) activities generally understood as Internet abuse, including but not limited to the sending of unsolicited bulk electronic mail or the use of spyware; or (vi) any Website(s) that includes, contains, promotes, references or has links to anything set forth in Section 2.2(g)(i)-(v) above.
Beachbody expects compliance with all privacy laws, rules and regulations, and has a strict policy against sending unsolicited commercial email (“UCE”), commonly referred to as “Spam”.
Network shall promptly forward to Beachbody any and all complaints or inquiries regarding any Ad campaign. Any claims against Beachbody from recipients of the email Ads that such email Ads constitute UCE or otherwise are not compliant with law, rules and/or regulations will be directed to Network and Network will make reasonable efforts to satisfactorily resolve the issue with the recipient. Network agrees that, within twenty-four (24) hours of Beachbody’s request, it will provide, at a minimum, the following subscriber sign-up and registration data for any email address that Network sends an email Ad to: (i) the subscriber email address used to sign-up and/or register for Network's email list; (ii) the subscriber's IP address; (iii) the date and time of subscriber's sign-up and/or registration for Network's email list; and (iv) the location of subscriber's sign-up and/or registration (e.g., what is the original source of the subscriber email address; where did the subscriber sign-up and/or register for Network's email list). In the event of any other complaints or issues regarding a campaign placed by Network under this Agreement, Network shall identify the parties involved (including any third party Networks) and any relevant facts within two business days of a request from Beachbody. Beachbody may disclose any information provided under this section as may be necessary to enforce the terms of any agreements or to protect the rights, property, or safety of Beachbody or others.
3.0 INTERNATIONAL ADVERTISING
(a) Network shall not provide any services, including by sending or directing any advertisements to email addresses or websites outside the United States without prior express written approval from Beachbody. If, following such approval by Beachbody, Network provides any services or sends any advertisements to non-United States email addresses or websites (“International Advertising”), such services and advertisements and the sending of same must be in compliance with all applicable international, national, state, and local laws, rules, regulations, and codes of practice of the country or jurisdiction, including but not limited to all electronic communications and privacy legislation. Ads for approved international campaigns may only be sent in compliance with all terms herein, including in compliance with all applicable international, national, state and local laws, rules, regulations, and codes of practice, and only to recipients who have granted express consent to receive email from the sender and/or advertiser.
(b) To the extent rights are granted for International Advertising, Network represents and warrants that it is familiar with and compliant with applicable regional and/or national legislation and industry codes. For example and without limitation, International Advertising to the United Kingdom must be compliant with (i) the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing; (ii) the European Union’s Data Privacy and Cookie Directives and UK implementing legislation.
4.0 BEACHBODY INTELLECTUAL PROPERTY
(a) Network acknowledges that Beachbody owns all right, title and interest in and to its various fitness videos, kits, advertising and promotional material, and other products and services, including all intellectual property rights and goodwill in and relating to the same. These rights include, but are not limited to (1) all rights in and related to its trademarks, trade name, trade dress, service marks, symbols, logos, brands, domain names, and designs, (2) all copyright and other rights in and related to its fitness programs and videos, its websites, content and Creatives (and the various components thereof), its nutrition and other guides, its advertisements and marketing and promotional material, its infomercials, and its other works, and (3) all trade secrets relating to any of the above. (“Beachbody Intellectual Property”). A partial list of Beachbody Intellectual Property is attached hereto as Exhibit A. Exhibit A is in no way exhaustive of Beachbody Intellectual Property.
(b) Network may not use or attempt to register any Beachbody Intellectual Property (or any confusingly or substantially similar variations or translations thereof), including in connection with any of the following: domain names or URLs; keywords, adwords, sponsored ads, or other similar advertising buys however they may be termed; metatags; user or account names, user IDs, or any other identifiers within any blogs, social networking websites, or any “posting” sites such as Blogspot, Facebook, MySpace, Twitter or Flickr.
(c) To the extent Network wishes to utilize any Beachbody Intellectual Property, it must receive Beachbody’s prior express written consent for each proposed use. If any particular use is expressly approved by Beachbody in writing, Network agrees it will use Beachbody Intellectual Property only in the form and manner specifically approved; that it will make no modification to any Beachbody Intellectual Property; that it obtains no ownership of or rights in or to the Beachbody Intellectual Property (or any modifications, enhancements or derivatives thereof); and that any use by Network of any Beachbody Intellectual Property, including any goodwill arising therefrom, shall inure to the sole benefit of Beachbody. Any and all use of any Beachbody Intellectual Property shall be consistent with the high-quality image used by and associated with
Beachbody and shall in no manner reflect adversely upon Beachbody. Beachbody reserves the right to deny or withdraw its consent for use of any Beachbody Intellectual Property in its sole discretion. Network expressly agrees it will do nothing inconsistent with Beachbody’s sole and exclusive ownership of Beachbody Intellectual Property, and will do nothing that will diminish or damage the goodwill associated with any Beachbody Intellectual Property.
(d) Network agrees that it will immediately cease all use of all Beachbody Intellectual Property immediately upon termination or expiration of this Agreement.
5. TRACKING & PAYMENT
Beachbody’s tracking mechanism shall be used for all campaigns.
All payments hereunder will be in U.S. Dollars and payable thirty (30) days after receipt of Network’s invoice, unless any amounts therein are disputed. Network acknowledges that it will only receive payment for valid and completed orders (e.g., after the method of payment and actual funds have been collected and verified), and that Beachbody shall have no obligation to pay for any sums attributable to (i) a violation of the restrictions set forth in this Agreement; or (ii) duplicate, invalid or fraudulent traffic or orders.
(b) To the extent Network collects, stores, uses and processes any personally identifiable information, such activity must be done in compliance with all applicable international, national, state and local laws, rules, regulations and codes of practice.
(c) Network understands that all data, including, but not limited to, personally identifiable information provided by Users in response to an Ad, and/or any and all reports, results, and information created, compiled, analyzed and derived from such data, is the sole and exclusive property of Beachbody and is considered Confidential Information pursuant to this Agreement. Network shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such information, or any portion thereof, to any third-party. Unless otherwise agreed to in writing by the Parties, any use of such information by Network is strictly prohibited.
7.0 NETWORK MEMBERS
Members or Publishers within Network (“Publishers”) must adhere to all terms and conditions of this Agreement. Network must ensure that all Publishers accept and agree to the terms in this Agreement, and recognizes that Network is responsible for the activities of Publishers with respect to the terms and conditions of this Agreement, as if Network had undertaken such activities itself. To the extent any Publisher breaches this Agreement, Network will provide Beachbody with all contact information for that Publisher.
(a) The Parties hereby acknowledge that Network is solely responsible for the method of dissemination of the campaigns, and that Beachbody will not have any control over the method of dissemination and is relying entirely on all representations and warranties made by Network in this Agreement. Network acknowledges, represents, warrants, and covenants that (i) it will provide and maintain the resources, personnel and facilities suitable to perform its obligations under the Agreement; (ii) it will comply with all applicable international, federal, national, state and local laws, rules, regulations and codes of practice including, without limitation, laws relating to advertising, the Internet, data collection and storage, privacy and unfair business practices; (iii) it will not engage in conduct prohibited herein; (iv) it is at least 18 years of age on the effective date of this Agreement; and (v) Beachbody has not made and does not make any specific or implied promises as to the successful outcome of any campaigns.
(b) Each Party represents and warrants to the other that (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such Party is bound; and (iii) such Party acknowledges that the other Party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in the Agreement.
Each Party agrees to indemnify and hold harmless the other, its officers, directors, employees, agents, shareholders, partners, affiliates, representatives, agents shareholders, partners, affiliates and representatives (“Indemnified Parties”) harmless from and against any and all third party allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, court costs and witness fees) incurred by, or imposed or asserted against, the Indemnified Parties which, if true, would constitute or relate to any claims, suits, or proceedings for any acts of gross negligence or willful misconduct or any breach by the Indemnifying Party of any duty, representation or warranty under this Agreement. The Indemnifying Party shall have control over the defense and settlement of any such claim, provided that Indemnifying Party: (i) must use counsel acceptable to the Indemnified Party (which consent shall not be unreasonably withheld), and (ii) may not enter into any settlement or make any admission that adversely affects the Indemnified Party’s rights or interests without such Party’s prior written consent.
10.0 LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY’S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE GREATER OF THE AMOUNTS PAID UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE OR TEN THOUSAND DOLLARS ($10,000.00). NOTHING IN THIS SECTION SHALL LIMIT A PARTY’S OBLIGATIONS UNDER SECTIONS 9 OR 11 HEREIN, OR A BREACH BY NETWORK OF SECTIONS 4(d), 4(c) or 4(d).
(a) Network shall use the same means it uses to protect its own confidential proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of: information received from Beachbody which is identified as confidential at the time of disclosure, any customer data, or any proprietary information (e.g., pricing data) that should, under the circumstances surrounding disclosure, reasonably be treated as confidential (“Confidential Information”). Network agrees to promptly delete all Confidential Information containing personally identifiable information that is no longer required for purposes of fulfilling Network’s obligations under this Agreement. These restrictions shall not apply to information that Network can document is: (i) already in the possession of or known by Network, (ii) publicly known or becomes publicly known through no unauthorized act of Network or a third party, (iii) lawfully received from a third party without restriction on use or disclosure if, to Network’s knowledge, such third party had the legal right to disclose such information, (iv) independently developed by Network without use of Beachbody’s Confidential Information, (v) pre-approved in writing by Beachbody for disclosure, or (vi) disclosed as required by law, governmental agency or rule, or court order, so long as Network provides Beachbody with timely prior notice of such requirement. Network may use Confidential Information received from Beachbody only in connection with and to fulfill the obligations of this Agreement and may only provide such Confidential Information to its respective directors, employees and advisors who have a “need to know” such Confidential Information. Upon completion or termination of this Agreement or the request of Beachbody at any time, Network shall, within five (5) business days from such completion, termination or request, return all copies of Confidential Information to Beachbody, or certify, if so requested by Beachbody, in writing that all copies of Confidential Information have been destroyed.
(b) The Parties recognize that a breach of the provisions of this Section would cause irreparable injury to Beachbody; therefore, in the event Network breaches or threatens to breach the provisions of this section, Beachbody, in addition to any other remedies it may have, shall be entitled to seek preliminary and permanent injunctive relief without the necessity of posting a bond.
(a) The initial term of this Agreement is set forth on the IO. Either Party may terminate this Agreement for a material breach of this Agreement by the other Party. Beachbody may termination this Agreement for any or no reason upon 14 days written notice. In addition, either Party may terminate this Agreement immediately upon written notice to the other Party in the event such other Party (i) makes an assignment for the benefit of creditors; or (ii) admits in writing its inability to pay its debts as such debts come due; or (iii) makes any voluntary filing for bankruptcy proceedings, which proceedings are acquiesced to or not dismissed within thirty (30) days. All terms and conditions of this Agreement continue during any notice period.
(b) Upon termination of this Agreement, Network shall (i) immediately cease all use of any and all Beachbody Intellectual Property, and all Ads, advertising material, ad copy, publicity, marketing communications, promotional or collateral materials relating to Beachbody, (ii) promptly return all Creatives, User data, Suppression Files, and all Beachbody Confidential Information in its possession, custody or control to Beachbody.
(a) No rights or obligations under this Agreement may be assigned by either Party without the prior written consent of the other Party; provided, however, either Party may assign this Agreement upon notice in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its relevant assets. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns.
(b) Each Party is an independent contractor. Any intention to create a joint venture or partnership between the Parties is expressly disclaimed. Except as set forth herein, neither Party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other Party’s prior written consent.
(c) This Agreement and the related IO constitute the entire agreement of the Parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the Parties with respect to the subject matter of this Agreement. It may only be modified by a written document signed by both Parties that specifically references this Agreement.
(d) This Agreement shall be governed by the laws of the State of California without respect to choice of law rules. The Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in Los Angeles County, California for any dispute arising out of this Agreement.
(e) This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument. For purposes hereof, a signed facsimile copy or electronic copy (e.g., in .pdf format) of this Agreement shall be deemed to be an original.
(f) All notices under this Agreement shall be sent to the addresses stated on the IO.
(g) Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening. Each Party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. All provisions are inserted conditionally on their being valid in law. In the event that any provision of this Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to the Agreement, then (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
/ / / /
Partial List of Beachbody Intellectual Property
Trademarks, service marks, and trade names including, but not limited to the following:
Beachbody, P90X, P90X2, Tai Cheng, Body Beast, Slim In 6, 10 Minute Trainer, INSANITY, INSANITY: THE ASYLUM, Turbo Jam, Chalean Extreme, Get Real with Shaun T, One on One, Hip Hop Abs, Kathy Smith’s Project You, Power 90, Power Half Hour, Rockin Body, Slim Series, Total Body Solution, Yoga Booty Ballet, ActiVit, RevAbs, Brazil Butt Lift, Team Beachbody, TurboFire, Body Gospel, Breakthrough In Beauty, Timeless Secret, Timeless Secret, Derm Exclusive, Shakeology, B-Lines, Beachbody Ultimate Reset, E&E Energy and Endurance, Results and Recovery Formula, 2-day Fast Formula, Les Mills, Les Mills PUMP, Les Mills COMBAT.
Domain Names including but not limited to the following:
Beachbody.com, TeamBeachbody.com, BreakThroughInBeauty.com, and all domain names associated with each and every Beachbody product and service