Terms of Agreement for becoming an Affiliate Partner and participating in Affiliated Program
This Agreement contains the complete terms and conditions that apply to participation by any individual (s) or entity (s) in the Affiliate Partners Program (the “Program”). As used in this Agreement, “we” means , and “you” means the applicant. “Website” means a World Wide Web and, depending on the context, refers either to websites located at the URL www.medi-alert.com, or to any website that you will link to our website (and which you will identify in your Program application).
1. Enrollment in the Program
To begin the enrollment process, you will request an application for approval via e-mail at the following address: [email protected]. You will then submit a complete Program application via fax to ***-***-****. At the time you apply, your site must be fully functional and not in “beta” or “under construction” state. We will evaluate your application in good faith and will notify you of your acceptance or rejection in as timely a fashion as is reasonable. We may reject your application (in our sole discretion) if we determine that your site is unsuitable for the Program. Unsuitable sites include those that are categorized as follows (but not limited to): promote sexually explicit materials, promote violence, promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, promote illegal activities, otherwise violate intellectual property rights If your application is rejected, you are welcome to reapply to the Program after 30 days. You should also note that if we accept your application and your site is thereafter determined (in our sole discretion) to be unsuitable for the Program, we may terminate this Agreement.
2. Links on Your Website
Once you have been notified that your website has been accepted into the Program, you may provide on your website only links that are authorized by and supplied to you by us. Links used, which have not been provided by us, will not be eligible for commission payments. You will be responsible for the placement of these references. You may add or delete the related links from your website at any time without our approval. We will provide you with guidelines in linking to us. To permit accurate tracking, reporting, and commission payment accrual, we will provide you with a specific and unique link format to be used in all links between your website and our website. You must ensure that each of the links between your website and our website properly utilizes such special link formats. Links to our website placed on your website pursuant to this Agreement and which properly utilize such special link formats are referred to as “Commissionable links”. You will only earn commission payment fees with respect to activity on our website occurring directly through Commissionable Links. You agree that you will not use our links on any website other than the website you specified in your application to the Program or another website we approve following your acceptance into the Program. If you incorporate our marks or links into a website other than the websites approved by us, this Agreement is void. We will not be liable to you with respect to any failure by you to use Commissionable Links, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement.
3. Order Processing
We will process orders placed by customers who follow Commissionable Links from your website to our website. We reserve the right to reject orders that do not comply with any requirements that we may establish periodically. We reserve the right to reject or withhold acceptance or fulfillment of orders for any reason, including but not limited to the failure of any person or entity making an order to comply with our terms and conditions of sale, that may be revised periodically. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations, and returns, and handle customer service. We will track sales made to customers who order using Commissionable Links from your website to our website and will make available to you reports summarizing this sales and commission accrual activity.
4. Commission Schedule
We will pay you (in accordance with Sections 5 and 6 below) commission based referral fees on certain sales to third parties. For a sale to be eligible to earn a referral fee, the customer must follow a Commissionable Link from your website to our website, select and purchase the Product using our automated ordering system, accept delivery of the Product at the shipping destination, and remit full payment to us. Purchase of products during sessions initiated through the links on your website may not be used for resale or commercial use of any kind. This includes orders for customers or on behalf of customers or orders for products to be used by any friends, relatives or associates in any manner other than strictly personnel use. Such purchases may result (in our sole discretion) in the withholding of referral fees or the termination of this Agreement. Products that are eligible to earn referral fees under the rules set forth above are referred to as “Commissionable Products.” In addition, you may not: (a) directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money or granting of any discount or other benefit) for using Commissionable Links on your website to access our website (e.g., by implementing any “rewards” program for persons or entities who use Commissionable Links on your website to access our website); (b) post any Special Links on any Website or other platform which is accessible through any Internet Access Appliance; (c) read, intercept, record, redirect, interpret or fill in the contents of any electronic form or other materials submitted to us by any person or entity; (d) in any way modify, redirect, suppress or substitute the operation of any button, link or other interactive feature of our website; (e) make any orders, subscription requests or engage in other transactions of any kind on our website on behalf of any third party, or authorize, assist or encourage any other person or entity to do so; (f) take any action which could reasonably cause any customer confusion as to our relationship with you, or as to the website on which any functions or transactions (e.g., search, order, browse, etc.) are occurring; or (g) post or serve any advertisements or promotional content around or in conjunction with the display of our website (e.g., through any “framing” technique or technology or pop-up windows), or assist, authorize or encourage any third party to take any action. If we determine, in our sole discretion, that you have engaged in any of the foregoing activities, we may (without limiting any other rights or remedies available to us) withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement.
5. Commission Based Referral
Fee Schedule You will earn Commission based referral fees based on Qualifying Revenues according to referral fee schedules to be established by us. “Commissionable Revenues” are revenues derived by us from our sales of Commissionable Products, excluding costs for shipping, handling, gift-wrapping, taxes, service charges, credit card processing fees, and bad debt. The current referral fee schedule is: $25.00 of Commissionable Revenues from sales of all Commissionable Products.
6. Commission Based Referral Fee Payment
We will pay you commission based referral fees on a quarterly basis. Approximately 15 – 30 days following the end of each calendar quarter, we will release to you a check for the commission based referral fees earned on our sales of Commissionable Products that were shipped during that quarter, less any taxes that we are required by law to withhold. However, if the commission based referral fees payable to you for any calendar quarter are less than $100.00, we will hold those commission based referral fees until the total amount due is at least $100.00 or (if earlier) until this Agreement is terminated. If a Commissionable Product that generated a commission based referral fee is returned by the customer for refund, we will deduct the corresponding commission based referral fee from your next quarterly payment. If there is no subsequent payment, we will send you a bill for the commission based referral fee. Fees billed to you will be due in 30 days from the invoice date and must be paid by cashier’s check or money order. Failure to remit payment by the due date will result in transfer of debt to either an internal or external collection agency. Failure to remit payment within 30 days could result in additional collection costs that will be billed accordingly
7. Policies and Pricing
Customers who sign up with through this Program will be deemed to be customers of RRPERS. Accordingly, all rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for service sold under this Program in accordance with our own pricing policies. Service prices and availability may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular service.
8. Identifying Yourself as an Associate
We will make available to you a Commissionable Link that identifies your website as an Affiliate Partner Program participant. You must display this Link as well as the phrase “In association with medi-alert.com” somewhere on your website. Spelling and capitalization must be consistent with the standards set forth by medi-alert.com. We may modify the text of this notice from time to time. You may not make any press release with respect to this Agreement or your participation in the Program without our prior written consent, which may be given or withheld in our sole discretion. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that medi-alert.com supports, sponsors, endorses or contributes money to any charity or other cause). You grant us a non-exclusive license to use your names, titles, logos, trademarks, trade names, and service marks (collectively the “Affiliate Trademarks”) to advertise, market, promote and publicize in any manner the Program, your participation in the Program and to promote medi-alert.com. Medi-Alert.com shall not be required to use the Affiliate Trademarks or to advertise, market, promote or publicize your website. You hereby represent and warrant that you are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use the Affiliate Trademarks in the manner contemplated herein, and such grant does not or will not (a) breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon you, or (b) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
9. Limited License We grant you a nonexclusive, revocable right to use the Commissionable Link and text described in Section 2. and such other items for which we grant express permission, solely for the purpose of identifying your website as a Program participant and to assist in generating Product sales. You may not modify the Link or text, or any other of our remedies, in any way. We reserve all of our rights in the Link and text, our trade names and trademarks, and all other intellectual property rights. You agree to follow our Trademark Guidelines, as those guidelines may change from time to time. We may revoke your license at any time by giving you written notice.
10. Responsibility for Your Website
You will be solely responsible for the development, operation, and maintenance of your website and for all materials that appear on your website. For example, you will be solely responsible for: *the technical operation of your website and all related equipment *Posting Commissionable Links on your website and linking those to our website *ensuring that materials posted on your website do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights) You must have express permission to use another party’s copyrighted materials, and you also must have express prior written permission to use another person’s name, portrait, voice or likeness. *ensuring that materials posted on your website are not libelous or otherwise illegal. We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys’ fees) relating to the development, operation, maintenance, and contents of your website.
11. Term of the Agreement The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either you or medi-alert.com may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your website, all links to our website, and all medi-alert.com trademarks, trade dress and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. You are only eligible to earn referral fees on our sales of Commissionable Products occurring during the term, and referral fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
12. Modification We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our website. Modifications may include; for example, changes in the scope of available commission based referral fees, referral fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR WEBSITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
13. Relationship of Parties
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your website or otherwise, that reasonably would contradict anything in this Section.
14. Limitation of Liability
We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to you under this Agreement.
We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our website will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
16. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEBSITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEBSITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
17. Representations and Warranties
You hereby represent and warrant to use as follows: (a) This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms. (b) Your execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties. (c) You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use your trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. (d) No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third-party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby. (e) There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
You hereby agree to indemnify, defend and hold harmless medi-alert.com, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all third-party actual or threatened claims, losses, liabilities, damages or expenses (including attorneys fees and costs) of any nature whatsoever incurred or suffered by us (collectively the “Losses”), in so far as such Losses (or actions in respect thereof) arise out of, are related to, or are based in any way on (i) any claim or threatened claim that our use of the Affiliate Trademarks infringes on the rights of any third-party; (ii) the breach of any representation or warranty made by you herein; (iii) any claim related to your Web site, the conduct of your business, or your goods or services; (iv) your violation of any law, regulation, ordinance or applicable policy of or agreement with any Licensed Marks or Approved Publishers Images, or your infringement, misappropriation or other violation of any third-party intellectual property right.
This Agreement will be governed by the laws of the United States and the State of Florida, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Pinellas County, Florida and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, familiarized to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.