Health Care Professional Affiliate Agreement
This agreement (the “Agreement) is made between Advanced Comfort Technologies, Inc. (the “Company”), and the Health Care Provider Registering for this program (the "Affiliate") and collectively, (the
“Parties”) for participation in the Company’s affiliate program. If Affiliate does not want to
participate in the affiliate program, please disregard the following agreement.
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
1. Promotion of Company. Affiliate will discuss and promote the benefits of Company to customers, patients, and contacts. Interested parties will use Affiliate’s unique promotional code to purchase online or call Company to speak to a sleep wellness consultant. Company shall make available to Affiliate one banner advertisement, button link, text links, and/or other graphic or textual material for display and use on the Affiliate website or within Affiliate’s email communications (the “Promotional Materials”). Affiliate shall prominently display the Promotional Materials on Affiliate’s website or within email campaigns and newsletters and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Material to Company’s website, as specified by Company. Changes on the banner advertisement shall only be made after Company and Affiliate agree in writing to change existing advertisement.
2. Use of Promotional Materials. The Affiliate’s use and display of the Promotional Materials on the Affiliate’s site shall conform to the following terms, conditions and specifications:
a. Affiliate may not use any graphic, textual or other materials to promote Company’s website, products or services other than the Promotional Materials, unless Company agrees to such other materials in writing prior to their display.
b. Affiliate may only use the Promotional Materials for the purpose of promoting Company’s website (and the products and services available thereon), and for linking to Company’s website.
c. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from Company for such alteration or modification.
d. The Promotional Materials will be used to link only to Company’s website, to the specific page and address as specified by Company.
3. License. Company hereby grants to Affiliate a nonexclusive, nontransferable license (the
“License”) to use the Promotional Materials as specified under the terms and conditions of this Agreement. The term of the License shall expire upon the expiration or termination of this Agreement.
4. Intellectual Property. Company retains all right, ownership, and interest in the Promotional
Materials, and in any copyright, trademark, or other intellectual property in the Promotional
Materials. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License, as set forth in Section 3.
5. Relationship of Parties. This Agreement shall not be construed to create any employment
relationship, agency relationship, or partnership between Company and Affiliate. Affiliate shall provide services for Company as an independent contractor. Affiliate shall have no authority to bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company in any respect.
a. In exchange for Affiliate’s display of the Promotional Materials and referrals, and for Affiliate’s compliance with and performance of the terms and conditions of this Agreement, Company shall pay to Affiliate a commission (the “Commission”) in the amount of a percentage of product sold to a user that accesses and uses Affiliate’s Promotional Code. See Attachment A for a schedule of commissions for specific products and services. Notification to Affiliate of any change in commission percentage will be given by Company at the email address on hand for the Affiliate. Commission will be based on purchases made by a user for any new and recurring purchases for the life of the registered user.
b. Company shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate. Affiliate shall be given reasonable access to these records upon request. Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods shall be rectified by Company within 14 days of discovering such discrepancy.
c. Commissions are held for a period of 2 months from any purchase to protect Company in the event of any chargeback that may occur. Company shall pay all Commissions accrued and payable to Affiliate within 14 days of the first day of each month (the “Commission Payment Date”). If on any Commission Payment Date, the amount of total Commissions accrued and payable to Affiliate is less than $10.00, then such accrued and payable balance shall be held over to the following month, and paid together with the Commissions due for that month. If at any time, the balance of accrued and payable Commissions is held over for 2 consecutive months, then Company shall pay all accrued and payable Commissions to Affiliate in the third month, regardless of the total amount owed.
7. Affiliate’s Representations and Warranties. Affiliate represents and warrants the following:
a. Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.
b. Affiliate’s website does not contain any materials that are:
i. Sexually explicit, obscene, or pornographic;
ii. Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
iii. Graphically violent, including any violent video game images; or
iv. Solicitous of any unlawful behavior
v. Fraudulent in any manner
c. Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s website. Nothing on Affiliate’s website infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.
d. Affiliate will not use the Promotional Materials in any manner other than those set forth in Section 2 above.
e. Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
f. Affiliate will not publish or otherwise distribute any advertising materials for Affiliate’s website that reference Company or Company’s website unless Company gives prior written consent to the distribution of such materials. Affiliate will not use Company’s name (or any name that is confusingly similar to Company’s name) for any purpose on its website, in its promotional materials, or in any other context except to promote Company’s website as specified in this Agreement. Affiliate will not register any domain name that incorporates Company’s name, or that is confusingly similar to Company’s name.
g. Affiliate will not engage in the distribution of any unsolicited bulk emails (spam) in any way mentioning or referencing Company or Company’s website.
h. Affiliate will not deliver any messaging either on-line or in conversation with customers that is negative or disparaging to Company or its Products. Affiliate shall indemnify and hold harmless Company for any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s warranties set forth in Section 7 above. Affiliate shall also indemnify and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials. Each party hereby indemnifies and holds harmless the other Party from and against any costs, losses, expenses, damages, actions, proceedings or other claims of any kind which are caused (and to the extent contributed to) by the negligence of the indemnifying Party or the breach of any provision this Agreement by indemnifying Party, including the legal fees and costs of the indemnified Party on a solicitor and own client basis.
i. Affiliate will not violate anti-kickback laws (including chiropractors) within their state, which prohibit health professionals from accepting any type of rebate, commission, preference, discount, consideration, or other compensation in exchange for referring patients/clients/customers to any other person.
9. Confidentiality. Any information that Affiliate is exposed to by virtue of its relationship with Company under this Agreement, which information is not available to the general public, shall be considered to be “Confidential Company Information.” Affiliate may not disclose any Confidential Company Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from Company.
a. This Agreement shall take effect immediately, and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section 10.
b. Either Party shall have the right to terminate this Agreement at any time and for any cause.
11. Taxes. Company shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Affiliate.
12. Limitation of Liability. Company shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement.
13. Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
14. Severability. If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
15. Headings. The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
16. Entire Agreement. This Agreement constitutes the entire agreement between Company and Affiliate, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.
Until a Party notifies the other party in writing of a change of the notifying Party’s address for services, the parties’ respective addresses for service are:
To the Company:
Advanced Comfort Technologies, Inc.
3676 W California Avenue
Salt Lake City, UT 84104
18. Appendices. The following appendices shall form part of this Agreement.
Appendix A: Services and Payment Terms
19. Governing Law. This Agreement shall be governed by in accordance with the laws of the state of Utah and the federal laws of the United States of America. The Parties hereto irrevocably consent to the jurisdiction of the courts in the state of Utah.
Affiliate Activities (Description of Services): Educate and promote the benefits of healthy sleep. Articulate the benefits of Intelli-GEL and how IntelliBED may assist with reducing sleep problems.
Company Activities: Support Affiliate with Promotional Materials to aide in the education and communication of the benefits of healthy sleep and IntelliBED.
8% commission on the referral sale of the first bed within a calendar month.
Affiliate will offer promotional bundle as directed by Intellibed.