OvuSense US

Overview

This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in viO HealthTech’s (ovusense.com) Affiliate Program. 

The purpose of this Agreement is to allow HTML linking between your website and ovusense.com, and to allow you to act as an Affiliate for a class II medical device.  Please read this agreement carefully before signing up to be a viO HealthTech Affiliate.   Your attention is drawn in particular to paragraph 4. in the Affiliate Obligations

Affiliate Obligations

1. To begin the enrollment process, you complete and submit the online application. We may reject your application at our sole discretion. We may cancel your application if we determine that your site is unsuitable for our Program, including if it:
   - Promotes sexually explicit materials
   - Promotes violence
   - Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
   - Promotes illegal activities
   - Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
   - Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion
   - Contains software downloads that potentially enable diversions of commission from other affiliates in our program
   - You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are ovusense.com or any related business
   - We reserve the right, at any time, to review your placement and approve the use of your links and require that you change the placement or use to comply with the guidelines provided to you want to continue as an affiliate.
2. The maintenance and the updating of your site will be your responsibility.
3. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person's copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person's copyrighted material or other intellectual property in violation of the law or any third party rights.
4. You hereby agree to inform viO HealthTech within 24 hours of receiving a customer complaint about the OvuSense device. This is a legal and regulatory requirement of each territory in which the OvuSense device is sold. 

The complaint notice shall be registered with viO HealthTech by means of email to the address: support@ovusense.com and shall be followed up by a phone call to +1 855 688 1712 if no acknowledgement has been received within a further 12 hours. Each complaint will automatically receive a “ticket number” from viO HealthTech’s Customer Support system and this should be quoted in any further correspondence

The complaint notice shall contain the following details:

1. Customer First Name and Family Name (required)
2. Customer Email Address (required)
3. Customer Phone Number (optional)
4. Complaint classification (which must explicitly be noted as one of the following)
   1. Adverse Incident (resulting in death or serious injury)
   2. Near Incident (might have resulted in death or serious injury)
   3. Incident (minor injury)
   4. Product Failure
   5. User error or abnormal use
   6. A detailed description of the complaint

A complaint may evolve, especially if an investigation is conducted by a hospital department or authority. You hereby agrees to engage fully with the complainant as required and keep viO HealthTech informed of progress of the complaint.

Merchant Rights and Obligations

1. We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made, or to make sure that your links to our website are appropriate and to notify further you of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation.
2. We reserve the right to terminate this Agreement and your participation in the immediately and without notice to you should you commit fraud or should you abuse this program in any way. If such fraud or abuse is detected, we shall not be liable to you for any commissions for such fraudulent sales.
3. This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated hereunder.

Promotion Restrictions

1. You are free to promote your own websites, but naturally any promotion that mentions OvuSense or ovusense.com could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by us. For example, advertising commonly referred to as "spamming" is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote OvuSense so long as the recipient is already a customer or subscriber of your services or website, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote OvuSense so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your websites as independent from us. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
2. Affiliates that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as OvuSense, ovusense.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to re-directing it to ours, will be considered trademark violators, and this agreement will be terminated. We will do everything possible to contact the affiliate prior to termination. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior.
3. Affiliate shall not transmit any so-called “interstitials,” “Parasiteware", “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited our website. As used herein a. “Parasiteware” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of our site in IFrames, hidden links and automatic pop ups, other than those websites 100% owned by the application owner, for the purpose of contextual marketing; (d) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on websites 100% owned by the owner of the application.

Promotional Codes

1. The advertiser may only use the promotional codes, coupons, provided by OvuSense in the AWIN programme. Transactions generated with coupons that are unauthorised or not provided by OvuSense in the AWIN programme will not be considered or attributed to the partner. 
2. It is not permitted to promote, share or communicate promotions or promotional codes other than those expressly provided for by the programme and authorised by OvuSense.

Validation of Transactions

1. Before confirming the commissions, OvuSense reserves the right to check and validate the conversions and to pay only those that have been created in accordance with the general conditions.
2. Orders are subject to a verification process according to internal criteria and key performance indicators., OvuSense therefore, reserves the right to refuse payment of commissions on cancelled and returned orders. 
3. Validation will take place no later than 45 days from the transaction and only valid last-click conversions will be remunerated. In the event of a violation, the advertiser reserves the right to cancel all ongoing transactions until the violation is confirmed and to terminate the partnership without notice.
4. ​In the event of a violation of our terms and/or brand guidelines, the collaboration may be suspended. 

Grant of Licenses

1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the "Licensed Materials") that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a Affiliate Member in good standing. You agree that all uses of the Licensed Materials will be on behalf of viO HealthTech (OvuSense) and the good will associated therewith will inure to the sole benefit of us.
2. Each party agrees not to use the other's proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.

Termination

Either you or we may end this Agreement at any time, with or without cause, by giving the other party written notice. Written notice from the Affiliate shall be in the form of email to support@ovusense.com and shall be followed up by a phone call to +1 855 688 1712 if no acknowledgement has been received within a further 24 hours. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you.

Modification

We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in our Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.

Disclaimer

viO HealthTech (OVUSENSE.COM) MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE WEBSITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

Representations and Warranties

You represent and warrant that:

1. 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;
2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.

Limitations of Liability

WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL OVUSENSE.COM'S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.

Indemnification

You hereby agree to indemnify and hold harmless viO HealthTech/ovusense.com and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (ii) any claim related to your site, including, without limitation, content therein not attributable to us.

Confidentiality

All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked "Confidential," will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.

Miscellaneous

1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and viO HealthTech/ovusense.com. 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 Site or any other of Your Site or otherwise, that reasonably would contradict anything in this Section.
2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party.
3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Connecticut without regard to the conflicts of laws and principles thereof.
4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.

If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.

Version:  06NOV23