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STATEMENT OF POLICY & RULES GOVERNING ONLINE MARKETING BY THIRD PARTIES ("AFFILIATES")
The following Statement of Policy and advertiser-specific rules set forth below ("Policies and Rules") apply to all online marketing of MarketHealth.com ("Merchant") product offers by any third party working under any agreement or arrangement with Merchant's Network Affiliate Manager ("Manager"). A third party who provides or otherwise engages in online marketing of any Merchant product shall be regarded by Merchant as an indirect affiliate of Merchant ("Indirect Affiliate" or "Affiliate") subject to the requirements and restrictions specified in these Policies and Rules.
The currently effective version of Merchant's Statement of Policy and Rules is posted at http://www.markethealth.com/marketing-policy.php. Acceptance of and compliance with these policies and rules by each Indirect Affiliate is a condition of Affiliate's initial and continued eligibility to participate in any online marketing campaign or activities undertaken by Manager and/or Affiliate to promote Merchant's products
STATEMENT OF POLICY
All online advertising of Merchant's products by Affiliates shall comply with the Federal Trade Commission Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM Act"), Federal Trade Commission regulations and guidelines implementing the FTC Act and the CAN-SPAM Act, and all other federal and state consumer protection laws and regulations.
Each Affiliate is responsible for ensuring that his/her online advertising of Merchant's products adheres to the following standards:
* Advertisements must be truthful and non-deceptive
* Affiliate must possess evidence to support claims made in his/her advertising and
* Advertisements must not be unfair.
To ensure that these standards are met, Affiliates shall comply with Merchant's Rules Governing Online Marketing by Third Parties.
RULES GOVERNING ONLINE MARKETING BY THIRD PARTIES ("AFFILIATES")
1. ADVERTISING AND CUSTOMER GENERATION SERVICES
1. Definitions. As used herein:
1. "Advertisements" means any advertisements, emails, banner or display ads, hyperlinks, search engine results, web pages, blogs, product review sites, domain names, and/or any other media properties or placements designed to promote, and/or generate customers for, Merchant's products, as well as any Merchant Intellectual Property (defined below) contained within the Advertisements.
2. "Affiliate Landing Page" means any web page hosted by Affiliate that is retrieved when an Advertisement, including without limitation any text hyperlink, is clicked by a user.
3. "Merchant Intellectual Property" ("Merchant IP") means all trademarks, service marks, trade dress, logos, copyrights, publicity rights or other intellectual property of Merchant utilized in Advertisements and any components thereof, including without limitation any computer code associated with the Advertisements.
4. "Merchant Landing Page" means any web page hosted by Merchant that is retrieved when an Advertisement, including without limitation any text hyperlink, is clicked by a consumer.
5. "Online Marketing" means any advertising, customer generation campaign and any other activities to promote, and/or generate customers for, Merchant's products, through the use, display, distribution, or transmission of Advertisements.
2. Sublicense to Use Merchant IP.
1. By providing or otherwise engaging in online marketing of Merchant's Products, Affiliate is deemed to accepted a limited, non-exclusive, revocable sublicense from Manager to use Merchant IP for the sole purpose of using, displaying, distributing, or transmitting Advertisements. Notwithstanding the foregoing, upon written notice from Manager or Merchant, Affiliate shall take down any Merchant IP, including without limitation any Affiliate Landing Pages, as requested by Manager or Merchant within 24 hours of such request.
2. Except as expressly authorized by Merchant in its sole discretion, Affiliate is prohibited from using or incorporating into any Affiliate domain name, subdomain name and/or URL any of Merchant's IP [and/or any of the prohibited keywords listed in Section Oprah, Dr. Oz, Rachel Ray, Barbara Walters and 60 Minutes of these Policies and Rules].
3. Nothing in this paragraph shall transfer or be deemed to transfer to Affiliate any ownership of Merchant IP rights nor grant nor be deemed to grant Affiliate any right or license other than the limited sublicense as stated in this Section 1.2. Merchant or Manager may revoke this sublicense at any time in their sole discretion.
4. Affiliate is prohibited from sublicensing to any third parties its rights to use Merchant IP.
3. Domain Name Registration. Affiliate shall register with Manager all active domain names, subdomain names and URLs used by Affiliate to market Merchant's products. Affiliate shall update its list of registered domain names, subdomain names, and URLs in real time to ensure that the list is complete and accurate at all times.
4. Privacy Policy. Each web site hosted by Affiliate shall include a clear and conspicuous privacy policy that complies with the requirements of Cal. Bus. & Prof. Code § 22575-22597 and specifically states that any customer information collected through the Affiliate's web site may be shared with outside third parties for marketing, order fulfillment, and any other purposes.
2. ADVERTISING REQUIREMENTS
1. Compliance with Laws. Affiliate shall use, display, distribute, and/or transmit the Advertisements in compliance with all applicable laws and regulations, including without limitation the Federal Trade Commission Act ("FTC Act"), the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM Act"), Federal Trade Commission regulations and guidelines implementing the FTC Act and the CAN-SPAM Act, and other federal and state consumer protection laws and regulations.
2. Advertising Restrictions. Affiliate shall not use any Advertisement that:
1. includes content that is deceptive, misleading, untruthful, unsubstantiated, or otherwise fails to comply with applicable federal and state consumer protection laws;
2. offers incentives, points, rewards, cash, or prizes to consumers in return for their response to any Advertisement, unless the terms and conditions of the offer are clearly and conspicuously presented to the consumer in accordance with federal and state regulations and guidelines;
3. constitutes any advertising via facsimile or telemarketing (including without limitation by use of prerecorded or artificial voice messages);
4. constitutes any advertising to wireless devices or portable electronic devices by text messaging in any form (including without limitation SMS, Smart Messaging, EMS, and MMS);
5. infringes on the personal rights, trademark, copyright, patent rights, service mark, or any other intellectual property right (collectively, "Marks") of any third party;
6. uses the Marks of any third party: (i) within the text, graphics or other content of any Advertisement; (ii) as a search term, keyword, and/or metatag, including in the title, body, and URL or search engine results; (iii) as a keyword on any search engine, including without limitation Google, Yahoo!, and MSN; (iv) as a metatag, in keyword stuffing or in other hidden layers on any web site; or (v) to drive organic search results;
7. uses Merchant's Marks, without Merchant's prior written consent: (i) as a search term, keyword, and/or metatag, including in the title, body, and URL or search engine results; (ii) as a keyword on any search engine, including without limitation Google, Yahoo!, and MSN search engines; (iii) as a metatag, in keyword stuffing or in other hidden layers on any web site; or (iv) to drive organic search results;
8. is labeled as an "official site" or similar designation or includes any other designation indicating that the Advertisement is an "official" advertisement or web site of Merchant;
9. contains profanity, sexually explicit materials, hate material, libelous or defamatory material, or material that discriminates on the basis of sex, age, race, religion, nationality, disability, sexual orientation, family status, or other such classification;
10. promotes any illegal activity including without limitation the promotion of gambling, illegal substances, software piracy, or hacking;
11. redirects traffic to or from any adult-oriented web sites;
12. links Internet traffic to any web sites not specifically designated or approved by Merchant as Merchant Landing Pages;
13. contains blank web pages, web pages with no content, or web pages that contain only links, lists of links, or advertisements;
14. is not written in English and/or does not contain English language content;
15. spawns pop-ups or exit pop-ups;
16. uses any downloadable application; or
17. uses any methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of a consumer.
3. USE OF TESTIMONIALS
1. As used herein, "Testimonial" means any advertising message, including but limited to consumer, celebrity or expert endorsements, verbal statements, demonstrations, or photos or other depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name, logo or seal of an organization), which message consumers are likely to believe reflects the opinions, beliefs, findings, or experience of a party other than Merchant.
2. Without limiting any of the general restrictions in Section 2.0, above, Affiliate shall not include in any Advertisement a Testimonial intended to drive traffic to a Merchant Landing Page unless such Testimonial is truthful, non-misleading, and substantiated, reflects the honest opinions, findings, beliefs and/or experience of the person providing the Testimonial, and otherwise complies with current Federal Trade Commission guidelines concerning the use of endorsements and testimonials in advertising.
3. Substantiation. No Testimonial may contain claims for which Affiliate does not possess Substantiation (defined below) or that would be considered deceptive.
1. Prior to disseminating any Advertisement that contains a Testimonial, Affiliate must possess documented, written evidence to verify the truthfulness and support the factual accuracy of the Testimonial included in such Advertisement ("Substantiation").
2. Affiliate understands that Merchant is relying on the Affiliate's possession of Substantiation of any Testimonials used by Affiliate in its Advertisements.
3. Affiliate shall provide Substantiation to Merchant within twenty-four (24) hours after receipt of notice from Merchant that Merchant has received a demand for Substantiation of the Testimonials.
4. Affiliate shall retain all Substantiation for at least five (5) years following the termination of any business relationship between Manager and Merchant.
4. When Clear and Conspicuous Disclosures Are Required. In each of the circumstances described below, Affiliate must include clear and conspicuous disclosure in all Advertisements containing Testimonials that are used, displayed, distributed or transmitted by Affiliate. All such disclosures must appear in a clear and legible font, sufficiently contrasted against any background graphic or color so as to be readily apparent to consumers.
1. Product Efficacy. If any Testimonial contains statements regarding the efficacy of any Merchant Product, Affiliate must include in the Advertisement the disclaimer: "Results may not be typical."
2. Endorser Paid for Testimony. If the person providing a Testimonial was (or will be) paid for his/her testimonial, Affiliate must include in the Advertisement the disclaimer: "Persons identified and/or appearing in this Advertisement have been paid for their endorsements."
3. Affiliate Blogs. If the Advertisement is in the form of a blog authored by Affiliate, Affiliate must include in the Advertisement the disclaimer: "Author may earn compensation for his/her review, promotion or mention of the Merchant product(s) identified in this publication."
4. Use of News Reports. If the Advertisement includes or contains reference to any news report, article, video or audio program or other intellectual property that Affiliate has no right to use, Affiliate must include in the Advertisement the following disclaimers: (i) "[Name of news report, article, video or audio program or other IP being used by Affiliate]" is a registered trademark of [Name of entity whose intellectual property rights are being used]." and (ii) The use of the [Name of entity whose intellectual property is being used] name in this Advertisement is not an endorsement [Name of entity whose intellectual property is being used] of Merchant's product."
5. Use of Celebrity Images and Testimony Prohibited. The use, display, distribution or transmission of any Advertisement that contains: (a) a photo or other image of any celebrity and/or (b) Testimonial purporting to have been provided or made by a celebrity, is strictly prohibited.
6. Experts. If an Advertisement represents, directly or by implication, that the endorser is an expert with respect to the endorsement message, then the endorser's qualifications must in fact give him/her the expertise that he/she is represented as possessing with respect to the endorsement.
7. Distortion of Testimony Prohibited. Affiliate shall not present any Testimony out of context nor reword Testimony so as to distort in any way the endorser's opinion or experience with any Merchant product. Affiliate may use the Testimony of an expert only as long as Affiliate has good reason to believe that the endorser continues to subscribe to the views presented.
4. REQUIREMENTS FOR EMAIL MARKETING
1. If Affiliate distributes Advertisements by email, Affiliate shall:
1. Remove from the transmission list any email address associated with any person who has previously requested not to receive commercial email solicitations from the "sender" of the message, as required by the CAN-SPAM Act. As used in this Agreement, the "sender" of the message is the Merchant or Merchant brand (as designated by Merchant) whose products are promoted by the message. In order to comply with this requirement, Affiliate must have procedures in place to access and use appropriate "opt-out" or "do not email" suppression files applicable to any marketing campaign sent by email, including without limitation any suppression file that may be made available by Merchant or maintained on behalf of Merchant by any third party designate by Merchant. In the event that Manager or Affiliate receives a request from any person to opt-out or unsubscribe from receiving commercial email messages from Merchant, Affiliate shall transfer to Manager all email addresses associated with such requests every three (3) calendar days.
2. Remove from the transmission list any email address associated with a wireless domain name, as listed on the then-current list of wireless domains maintained by the Federal Communications Commission.
3. Ensure that each email message includes (i) clear and conspicuous notice of the recipient's right to opt-out of receiving future commercial messages from the Merchant or the Merchant's brand that is promoted in the message; and (ii) a functional electronic mechanism that the recipient can use to make such an opt-out request, in compliance with the requirements of the CAN-SPAM Act and Federal Trade Commission regulations and guidelines implementing the CAN-SPAM Act.
4. Ensure that "subject" and "from" lines used in any email communications are truthful and non-misleading and do not otherwise violate the CAN-SPAM Act or any other federal and state consumer protection laws and regulations and do not infringe on the intellectual property rights of any third party.
5. MODIFICATION OF RULES AND POLICIES
Merchant may at any time amend, modify, restate and/or update these Policies and Rules without the prior consent of Affiliate or Manager upon notice to Manager. Manager will notify Affiliate within 24 hours of any such amendment, modification, restatement and/or update. Affiliate shall comply with such any amendment, modification, restatement and/or update immediately upon receipt of notice by Manager. The continued use, display, distribution, and/or transmission of any Advertisements by Affiliate after receipt of such notice constitutes the Affiliate's acceptance of such amendments, modifications, restatements and/or updates to these Policies and Rules.
