This Affiliate Application and Agreement (the “Agreement”) is entered into by and between Absorption Pharmaceuticals, LLC, a Delaware limited liability company with offices at 9830 W. Tropicana Blvd Las Vegas, NV 89147 (“Absorption”), and affiliate (the “Participant”), (collectively the “Parties" and each a "Party").
RECITALS
WHEREAS, Absorption is in the business of developing, manufacturing and distributing male sexual dysfunction products on a worldwide basis, in particular those under the PROMESCENT® name; and;
WHEREAS, Absorption operates an affiliate program providing commission payments for sales of its Promescent® product generated through referrals (the “Affiliate Program”); and
WHEREAS, Participant wishes to participate in the Affiliate Program on the terms and conditions set forth below; and
THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree as follows:
AGREEMENT
1. TERM. This Agreement shall commence as of Absorption’s approval of Participant’s application (which approval shall be manifested by the full execution of this Agreement), and shall continue for the earlier of six (6) months or termination by either Party as provided below (the “Term”).
2. ENROLLMENT. Participant shall commence the application process by listing and describing all web sites and other internet resources that it proposes to involve in the Affiliate Program on the attached “Schedule A” (collectively, the “Participant Website”) and providing a copy of this Agreement, executed by Participant, to Absorption’s designee. Upon receipt thereof, Absorption shall review Participant’s application, which it may approve or disapprove for any reason, in its sole discretion. If Absorption approves Participant’s application, Absorption shall countersign this Agreement and Participant shall be enrolled in the Affiliate Program. FOR CLARITY, THIS AGREEMENT SHALL NOT TAKE EFFECT UNLESS AND UNTIL IT IS EXECUTED BY BOTH PARTIES.
3. AFFILIATE LINK. For purposes of tracking, reporting, and accruing Commissions payable hereunder (as defined below), Absorption shall provide Participant with a link coded in accordance with Google Analytics (the “Affiliate Link”). Participant may use the Affiliate Link on its Participant Website and any marketing materials (including emails) that are in compliance with the terms and conditions of this Agreement.
4. COMMISSION.
a. Amount. In sole consideration for participation in the Affiliate Program, Participant shall be paid a Commission of 15% the net sales price (i.e., net of tax and shipping) of each sale of Promescent®-branded products through the Absorption website generated through Participant’s Affiliate Link. (For clarity, the Affiliate Link generates a “session cookie” so only sales arising immediately from a customer’s use of the Affiliate Link shall be subject to the Commission.) The Commission payable to Participant shall be adjusted based upon customer returns and chargebacks.
b. Payment. Absorption shall render payment of the Commission on a monthly basis so long as the accrued Commission hereunder equals or exceeds $50. Any accrued Commission of less than $50 shall be rolled over to the subsequent month but shall be payable upon termination of this Agreement.
c. Statements.
i. No more than fifteen (15) days after the end of each month in which a Commission is payable, Absorption shall provide Participant a statement containing sufficient granularity to determine the Commission payable to Participant, as may be subsequently adjusted by returns and chargebacks (the “Monthly Statement”).
ii. Each Monthly Statement shall be deemed conclusively accurate and incontestable unless Participant shall notify Absorption, in writing, of the specific basis of such claim within thirty (30) days after the date on which Participant receives such statement.
iii. Participant expressly waives any legal or equitable right of accounting. Participant acknowledges and agrees that (except for returns and chargebacks) the information upon which the Commission is based is derived from Google Analytics and that Absorption has no control over Google Analytics. Participant acknowledges and agrees to the sufficiency of Google Analytics as means of calculating the Commission and further agrees that should Participant object to any individual Monthly Statement, Absorption’s sole obligation shall be to provide relevant Google Analytics data, as well as any returns and chargebacks information corresponding to the Commission period at issue. In the event that the foregoing reveals that Participant has been underpaid, Absorption shall render payment of the amount of underpayment, adjusted by the lesser of 25% or $50, with the next Monthly Statement. In the event that the foregoing reveals that Participant has been overpaid, Absorption will adjust the Commission commensurately in conjunction with the next Monthly Statement, but shall not impose a charge or penalty.
5. PARTICIPANT WEBSITE AND SALES MATERIAL.
a. Participant is wholly responsible for all matters related to Participant Website and any sales material hereunder (e.g., emails with an Affiliate Link), including website development, maintenance and operation, as well as maintain Affiliate Links that are operational, formatting in accordance with the requirements of Google Analytics. ABSORPTION SHALL NOT BE RESPONSIBLE FOR THE FAILURE TO ASSIGN ANY SALE OR COMMISSIONS TO PARTICIPANT IF THE SAME RESULTS FROM THE IMPROPER FORMATTING OF THE LINK FROM THE PARTICIPANT WEBSITE OR ANY OTHER SALES MATERIAL HEREUNDER (E.G., EMAILS WITH AN AFFILIATE LINK). PARTICIPANT SHALL BEAR SOLE RESPONSIBILITY FOR ENSURING THAT EACH AFFILIATE LINK IS APPROPRIATELY FORMATTED AND FOR REPORTING ANY RELATED PROBLEMS TO ABSORPTION.
b. Participant represents and warrants that under no event shall the Participant Website or any sales material hereunder (e.g., emails with an Affiliate Link) include any material that: (1) is unlawful or promotes unlawful activities; (2) contains sexually explicit materials, (3) promotes violence; (4) promotes or constitutes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (5) is directed toward children under 13 years of age, as defined by the Children’s Online Privacy Protection Act (15 U.S.C. §§ 6501-6506) and any regulations promulgated thereunder, (6) promotes or contains libelous or defamatory materials, or (7) infringes or promotes the infringement of any intellectual property rights. Participant acknowledges and agrees that the reputation of Absorption’s products and trademarks would be adversely affected by association with such content and that Absorption may accordingly have a legal right to recover damages for such use.
c. Participant further represents and warrants that it will comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over Participant, including laws (federal, state, or otherwise) that govern marketing email (e.g., the CAN-SPAM Act of 2003) and marketing generally (e.g., the FTC Endorsement Guides).
6. TRADEMARKS AND COPYRIGHTS.
a. Absorption hereby grants Participant, for the Term, a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to use the trademarks, logos, and copyrighted material that Absorption provides to Participant for use in the Affiliate Program. Participant may use these materials only in the form that Absorption provides and only for the purposes of linking to Absorption’s website in accordance with the Affiliate Program policies and procedures and the terms of this Agreement. The license so granted is subject to compliance with all terms and conditions of this Agreement and any policies Absorption may create and amend from time to time regarding the Affiliate Program. Participant agrees not to take any action that is inconsistent with Absorption’s rights to such materials and shall not use these materials in any way that disparages Absorption. This license shall immediately terminate upon termination of this Agreement, whereupon Participant will immediately cease from any further use such material.
b. With express written permission, Participant may grant Absorption a non-exclusive right and license (but not obligation) to use Participant’s trademarks, logos, and copyrighted material for the purposes of promoting, advertising or marketing Participant’s participation in the Affiliate Program. Participant represents and warrants that it has the authority to license said materials to Absorption as aforesaid.
7. ABSORPTION ORDER PROCESSING; TREATMENT OF CUSTOMERS; POLICIES AND PRICING.
a. Consumers who purchase Promescent® products through this Affiliate Program shall be deemed to be customers solely of Absorption. Absorption will have the right to contact these customers and send future marketing offers to them. Participant will have no right to commissions on subsequent purchases that may be made by these customers, except for subsequent purchases that may be traced at the time of purchase through an Affiliate Link.
b. Absorption will be responsible for handling all customer inquiries, product orders, customer billing and collection, and product shipment relative to customers who enter Absorption’s site through the Affiliate Links. Accordingly, all Absorption rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. Absorption may at any time, without advance notice, and in its sole discretion change its customer service policies and operating procedures, as well as promotional offers, product prices, product size or configuration, shipping or other fees. Absorption makes no guarantees as to the availability or price of any particular product (including any configuration thereof). Absorption’s sole responsibility to Participant in this regard shall be to track customer orders that occur through Affiliate Links and provide Monthly Statements and Commission payments as set forth herein. Absorption will have no obligation to provide Participant with any specific information relative to any customer, regardless of whether such customer accesses the Absorption site through an Affiliate Link.
8. MODIFICATION OF THIS AGREEMENT. Absorption may modify any of the terms and conditions contained in this Agreement at any time and in its sole discretion by sending notice of such modification to Participant by email to the email address then-currently associated with Participant’s account. Any such change will be effective on the date specified in such email and will in no event be less than two business days after the date the email is sent. IF ANY MODIFICATION IS UNACCEPTABLE TO PARTICIPANT, PARTICIPANT’S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. PARTICIPANT’S CONTINUED PARTICIPATION IN THE AFFILIATE PROGRAM FOLLOWING THE EFFECTIVE DATE OF ANY MODIFICATION WILL CONSTITUTE PARTICIPANT’S BINDING ACCEPTANCE OF THE CHANGE.
9. TERMINATION OF AGREEMENT.
a. Either Party may terminate this Agreement at any time, with or without cause, by giving the other Party written notice of termination.
b. Upon any termination of this Agreement, (a) Absorption shall have no further payment or reporting obligations to Participant, regardless of whether Participant deactivates its Affiliate Links; (b) all intellectual property licenses contained herein shall automatically terminate as set forth above; (c) Participant will cease using any Affiliate Links; (d) Absorption shall render payment of any accrued but unpaid Commissions, even if such Commission is less than $50, provided that Absorption may withhold any accrued unpaid Commission for a reasonable period of time following termination (not to exceed 90 days) to account for any returns or chargebacks.
c. Further, upon any termination of this Agreement, all rights and obligations of the Parties will be extinguished, except that the rights and obligations of the Parties under Sections 10-21 (including any pertinent definitions), together with any accrued but unpaid payment obligations of Absorption under this Agreement, will survive the termination of this Agreement. No termination of this Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Agreement prior to termination.
10. CONFIDENTIAL INFORMATION. In the event that Absorption discloses to Participant any information that Absorption deems to be confidential and proprietary, the Participant agrees to hold such information in the strictest of confidence and not to disclose such information to any other party or to use any such information for the Participant’s own purposes. Confidential information shall be deemed to include any information regarding any changes or modifications to this Agreement or the Affiliate Program or any special treatment that the Participant may receive in Absorption’s sole discretion. Confidential information shall also include any and all information related to Absorption’s business, business plans, marketing plans, user statistics, financial information, pricing, profits, membership information, affiliations, sales information, and all other information which Absorption considers to be confidential and proprietary.
11. DAMAGE LIMITATIONS.
a. ABSORPTION HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND LIABILITY RELATED TO ANY DOWNTIME OR FAILURE FOR USERS TO BE ABLE TO ACCESS ITS WEB SITE OR TO ACCESS ITS WEB SITE USING THE LINK FROM PARTICIPANT’S WEB SITE. FURTHERMORE, ABSORPTION SHALL NOT BE RESPONSIBLE FOR AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES RELATED TO ITS WEB SITE, THE AFFILIATE PROGRAM, PARTICIPANT’S PARTICIPATION IN THE AFFILIATE PROGRAM, PARTICIPANT’S ABILITY TO MAKE ANY COMMISSIONS OR OTHERWISE PROFIT THROUGH PARTICIPATION IN THIS AFFILIATE PROGRAM, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTIBILITY, NON-INFRINGEMENT, OR ANY CLAIM MADE BASED UPON ABSORPTION’S COURSE OF DEALING OR USAGE OF TRADE. ABSORPTION DOES NOT REPRESENT OR WARRANT THAT ITS WEBSITE OR ANY APPLICATION, INCLUDING BUT NOT LIMITED TO ITS LINK TRACKING FEATURES, WILL BE ERROR FREE OR THAT THEY WILL FUNCTION WITHOUT INTERRUPTION.
b. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR USE, BUSINESS INTERRUPTION, OR LOSS OF GOODWILL, IRRESPECTIVE OF WHETHER EITHER PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
c. IN NO EVENT SHALL ABSORPTION’S AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS AGREEMENT, EXCEED THE TOTAL FEES PAID AND PAYABLE TO PARTICIPANT DURING THE TERM OF THIS AGREEMENT.
d. FOR CLARITY, THE LIMITATIONS CONTAINED IN THIS SECTION SHALL NOT BE CONSTRUED TO LIMIT OR RESTRICT EITHER PARTY’S INDEMNITY OBLIGATIONS AS SET FORTH HEREIN.
12. RELATIONSHIP OF PARTIES. The Parties are independent contractors, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Parties. Participant will have no authority to bind Absorption to any obligation, agreement, debt or liability, and shall not hold itself out as an agent or representative of Absorption.
13. ENTIRE AGREEMENT. The Parties’ entire understanding relating to the subject matter hereof is set forth in this Agreement. Any prior or contemporaneous agreements, promises or understandings relating to the subject matter hereof are superseded by the terms of this Agreement.
14. NO ASSIGNMENT. The Parties acknowledge that this Agreement is of a personal nature and that, accordingly, neither Party may delegate, assign, license or sublicense any of its rights or obligations herein in full or in part to any third party.
15. HEADINGS. All headings in this Agreement are inserted for convenience of reference only and shall not affect its meaning or interpretation.
16. SEVERABILITY. If any court or tribunal finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to give effect to the intent of the Parties.
17. NO WAIVER. The failure of either Party hereto at any time to require full and complete performance by the other Party shall in no way affect the full right to require such performance at any time thereafter, nor shall the waiver by any Party of any breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision, or as a waiver of the provision itself.
18. NOTICES AND COMMUNICATION. Unless otherwise provided in this Agreement, any notice or reporting obligation under this Agreement (including the Monthly Statements) may be made by email. Participant will ensure that the information in its application and otherwise associated with its account, including its email address and other contact information and identification of the Participant Website, is at all times complete, accurate, and up-to-date. Participant will be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address associated with that account is no longer current.
19. CHOICE OF LAW AND VENUE; ATTORNEY’S FEES. This Agreement was entered into in the State of Nevada and shall be construed by and governed in accordance with the laws of the Nevada without regard to choice-of-laws principles. The Parties agree and acknowledge that the state and federal courts located in the County of Clark, State of Nevada shall have sole and exclusive jurisdiction over any disputes arising under this Agreement and that such courts be the exclusive venue for any litigation. Each Party hereto consents and agrees to the exercise of personal jurisdiction by such courts. In any litigation arising out of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs, including reasonable expert witness fees.
20. AUTHORITY TO ENTER INTO AGREEMENT. Each individual executing this Agreement on behalf of any Party hereto represents and warrants to the other Parties that such individual is authorized to enter into this Agreement on behalf of that Party and that this Agreement binds that Party.
