Affiliate Agreement

Opedix Affiliate License Agreement

 

This Opedix Affiliate License Agreement (the “Agreement”) is a legal agreement between you, as either an individual or an authorized representative of your organization (“User”) and Opedix, LLC, a Colorado limited liability company (“Company”). From time to time, Affiliate and Company shall be collectively referred to as “Parties” and individually as a “Party.” By clicking “I Accept,” you acknowledge that you have read and understand this Agreement and agree to be bound by the terms of this Agreement. If you do not click “I Accept” to agree to the terms of this Agreement, you will not be granted access to Company’s affiliate program made available by Company (the “Opedix Affiliate Program”). If you do not wish to be bound by the terms and conditions of this Agreement, do not click “I Accept.” Your clicking “I Accept” constitutes acceptance of all of the terms and conditions of this Agreement. In consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Affiliate and Company hereby agree as follows:

 

1.  License Agreement.

 

a.  Company grants Affiliate a revocable, non-exclusive, non-perpetual, non-assignable, non-transferable, without the right to sublicense, license to (i) access to Company’s website www.opedix.com (the “Website”) through HTML links solely in accordance with the terms of this Agreement; and (ii) use Company logos, trademarks, trade names, and similar identifying material (collectively, the “Licensed Materials”) throughout the Term of this Agreement as provided by Company (the “License”). Affiliate is only entitled to use the Licensed Materials to the extent that it is a member in good standing of the Opedix Affiliate Program as determined by Company. Affiliate agrees that all uses of the Licensed Materials will be on behalf of Company, and the goodwill associated therewith will inure to the sole benefit of Company.

 

b.  Affiliate agrees and understands Company is authorized to, and shall, sublicense and to license to Affiliate certain third party software or data provided to Company by a third party.

 

2. Tracking Codes / Promo Codes Upon execution of this Agreement, Company may make available to Affiliate one or more unique tracking codes (each, a “Tracking Code”), for the purpose of identifying people and organizations that order Company’s products at the Website due to the actions of Affiliate. Affiliate may promote and post their Tracking Code pursuant to the terms and conditions herein. The Tracking Codes are administered by a third party (“Tracking Entity”), which will track the use of such Tracking Codes to identify customers originated by Affiliate. Affiliate agrees and understands that Affiliate shall not hold Company liable for any technical errors, or any violations caused by Company’s use of such third party services of Tracking Entity. The Company may also make available to Affiliate one or more unique promo codes (each, a “Promo Code”), for the purpose of identifying people and organizations that order Company’s products at the Website due to the actions of Affiliate.  The Promo Codes are administered internally to track the use of such Promo Codes to identify customers originated by Affiliate. Affiliate agrees and understands that Affiliate shall not hold Company liable for any technical errors, or any violations caused by Company’s use of the Promo Codes for tracking purposes. 

 

 

3.  Commissions. For each qualifying order linked to Affiliate’s Tracking Code that is placed within a sixty day time period from when the Tracking Code was first used by the entity ordering, Affiliate shall receive a commission payment in the amount of 12% (the “Fee”), or such higher percentage as determined at the sole discretion of the Company, of the aggregate net amount of each order submitted through the Website and shipped and delivered to the customer (“Opedix Products”); provided, however, that such Opedix Products are not returned for a refund within the applicable time period in accordance with Company refund policies. Any orders returned and granted credit will be deducted from Fees earned. In the event that an order through the Website is not fulfilled or paid for any reason, Company shall not be obligated to pay the applicable Fee to Affiliate for such order. Company does not pay any Fee for shipping & handling charges, taxes or any other non-product related charge the customer may incur. In the event that Affiliate breaches this Agreement, including, without limitation, Section 5(b), Company shall have the right to terminate this Agreement and Affiliate’s right to receive payment of the Fee shall immediately cease. 

 

4.  Reports and Payment. Affiliate will be required to create a user account and password in order to access the affiliate account management system of the Tracking Entity designated by Company. The Tracking Entity will provide reports to Affiliate containing Fees earned. All Fees shall be paid to Affiliate within forty-five days of the date Company receives payment from the customer. Payment is administered by a third party payment processing provider as determined by Company. Affiliate agrees and understands that Affiliate shall not hold Company liable for any technical errors, or any violations caused by Company’s use of such third party services.

 

5.  Affiliate Obligations and Restrictions.

a. Prior to execution of this Agreement, Affiliate must complete and submit an application to Company via email at [email protected]. Affiliate agrees and understands that Company may accept or reject applications for any reason in Company’s sole discretion. Further, it is Company’s policy to reject any application where Affiliate site includes any of the following:

i.    Promotes sexually explicit materials;

ii.   Promotes violence;

iii.  Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;

iv.  Promotes illegal activities;

v.   Incorporates any materials which infringe or assists others to infringe on any copyright, trademark or other intellectual property rights or third parties or to violate the law;

vi.  Includes “Opedix.com” or variations or misspellings thereof in its domain name;

vii. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, and ethnically or otherwise objectionable to us in our sole discretion;

viii. Contains software downloads that disrupt or divert the Opedix Affiliate Program in any way.

 

b.  Affiliate agrees and understands that:

i.  Affiliate may not create or design its website or any other website that Affiliate may operate directly or indirectly, which contains any proprietary information of Company other than as permitted within the scope of this Agreement, resembles Company’s Website in any manner, or leads customers to believe that Affiliate is Company or any other affiliated business.

ii.  Affiliate must use the HTML code provided by Company for each banner, text link, or other affiliate link in order for Company to accurately keep track of all guest visits originating from Affiliate.  Company reserves the right, at any time, to review Affiliate’s placement and approve the use of Affiliate’s links and require that Affiliate changes the placement or use to comply with Company guidelines.  Affiliate agrees and understands that it shall be responsible for maintaining its website, if it has a website.

iii.  Affiliate shall use best efforts to distinguish itself as independent from Company, and make clear in any advertising, promotion, press release, announcement, posting, email or other forms of communication that Affiliate is independent from Company and is not representing Company as a spokesperson, employee, or in any other capacity. Additionally, certain use of the Licensed Materials by Affiliate is prohibited by Company, including “spamming,” the use of unsolicited commercial email, postings to noncommercial newsgroups, and cross posting to multiple newsgroups at once. In addition, Affiliate may not advertise in any way that effectively conceals or misrepresents its identity, domain name, or return email address. Affiliate may use mailings to customers to promote Opedix Products so long as the recipient is already a customer or subscriber of its services or website, and recipients have the option to remove themselves from future mailings. Also, Affiliate may post to newsgroups to promote Opedix Products so long as the newsgroup authorizes commercial messages. At all times, Affiliate must clearly represent itself and its website as independent and unaffiliated with Company.

iv.   Affiliates are prohibited from bidding on keywords in their “Pay-Per-Click” campaigns that (a) include the word “Opedix,” such as us Opedix.com, Opedix, Opedixlabs, and/or any misspellings or similar alterations of these, separately or in combination with other keywords, (b) include any product name where such name includes a trademark of the Company; and any such act will be considered a breach of this Agreement, and may be trademark infringement.

v.   Affiliate shall not (a) cause the overriding of affiliate commission tracking; (b) intercept searches to redirect traffic through 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 search; (c) set commission tracking by any means; or (d) remove, replace or block the visibility of any banners with any other banner.

vi.   Affiliate agrees to abide by all applicable federal, state and local laws. 

vii.  Company has the right to monitor Affiliate’s site at any time to determine if Affiliate is following the terms and conditions of this Agreement. Company may, but is not obligated to, notify and request Affiliate make certain adjustments to its site. If Affiliate does not make the adjustments to its site as requested by Company, Company reserves the right to terminate this Agreement.

viii. Affiliate agrees not to, in any manner, disparage, mislead, or otherwise portray Company in a negative light.  

c.  Affiliate agrees and understands that failure to comply fully with its obligations under Section 5(b) may result in Company immediately terminating this Agreement.

 

6.  Term and Termination.

a.  Either Company or Affiliate may end this Agreement at any time, with or without cause, by giving the other Party five (5) business days’ written notice. Written notice can be in the form of mail, email, courier or fax. In addition, Company may terminate this Agreement immediately upon any breach of this Agreement by Affiliate.

b.  The term (“Term”) of this Agreement shall continue in effect until terminated pursuant to this Section 6.

 

7.  Modification. Company may modify any of the terms and conditions of this Agreement at any time at its sole discretion. In such event, Affiliate will be notified by email. Modifications may include, but are not limited to, changes in the payment procedure and Opedix Affiliate Program rules. If any modification is unacceptable to Affiliate, it may terminate this Agreement pursuant to Section 6.  Affiliate’s continued participation in the Opedix Affiliate Program following the notice of modification of this Agreement, will indicate Affiliate’s acceptance of the modified Agreement.

 

8.  Disclaimer. COMPANY MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE WEBSITE OR THE OPEDIX PRODUCTS AND SERVICES PROVIDED BY THE COMPANY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, COMPANY MAKES NO REPRESENTATION THAT THE OPERATION OF ITS WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND THE COMPANY WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

 

9.  Affiliate Representations and Warranties. Affiliate represents and warrants that:

a.  This Agreement has been duly and validly executed and delivered by Affiliate or on behalf of Affiliate, and constitutes Affiliate’s legal, valid, and binding obligation, enforceable against it in accordance with its terms;

b.  Affiliate has a full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform its obligations under this Agreement, without the approval or consent of any other Party, and Affiliate has sufficient rights, title, and interest in and to the rights granted to Company pursuant to this Agreement.

 

10.  Limitations of Liability. COMPANY WILL NOT BE LIABLE TO AFFILIATE OR ANY THIRD PARTY UNDER THIS AGREEMENT OR UNDER ANY CONTRACT, FOR 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 COMPNAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL COMPANY BE LIABILE TO AFFILIATE, OR ANYONE ASSOCIATED WITH THE AFFILIATE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY.  IN THE EVENT A COURT DETERMINES LIABILITY CANNOT BE LIMITED PURSUANT TO THIS SECTION, IN NO EVENT SHALL LIAILITY EXCEED THE TOTAL COMMISSION FEES PAID TO AFFILIATE UNDER THIS AGREEMENT.

 

11.  Indemnification by Affiliate. Affiliate hereby agrees to indemnify and hold harmless Company, 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 use of the Licensed Materials which is not permitted by or not in accordance with the terms of this Agreement; (ii) any claims of infringement of the intellectual property rights of any third party, (iii) the breach by Affiliate of any of the terms of this Agreement; (iii) any claim related to Affiliate’s site, including without limitation, content therein not attributable to Company.

 

12.  Confidentiality. Each Party acknowledges that it will have access to certain confidential information of the other Party, including the terms and conditions of this Agreement. “Confidential Information” includes all information identified by a Party as confidential, including but not limited to, a Party’s information regarding its business, employees, financial condition, products, operation, or other financial and business matters.  Each Party’s Confidential Information shall (i) remain the sole property of that Party and (ii) be used by the other Party only as described herein and may not be disclosed, provided or otherwise made available to any other third party except that such Confidential Information may be disclosed to the other Party’s employees or agents who have a need to know in the scope of their work during the time they are performing services under this Agreement and are under the other Party’s security and control. Confidential Information does not include (i) information that the recipient can establish was already known to the recipient at the time it was disclosed in connection with this Agreement, (ii) information that is developed independently by the recipient or received from another third party lawfully in possession of the information and having no duty to keep the information confidential, (iii) information that becomes publicly known other than by a breach of this Agreement, or (iv) information disclosed in accordance with a valid court order or other valid legal process.  Each Party agrees to hold the Confidential Information of the other Party in strictest confidence and not to copy, reproduce, distribute, publish or disclose such Confidential Information to any person except as expressly permitted by this Agreement.

 

13.  Miscellaneous.

Affiliate agrees that it is an independent contractor and nothing in this Agreement will create a partnership, joint venture, agency, franchise, sales representative, or employment relationship between Affiliate and Company. Affiliate will have no authority to make or accept any offers or representations on Company’s behalf, and will not make any statement, whether on its site or any other of its sites or otherwise, that reasonably would contradict anything in this Agreement.

a.  Neither Party may assign its rights or obligations under this Agreement to any other third party without the written consent of the other Party.

b.  This Agreement shall be governed by and interpreted in accordance with the laws of the state of Arizona without regard to the conflicts of laws principles.

c.  You may not amend or waive any provision of this Agreement unless in writing and signed by both Parties.

d.  This Agreement represents the entire Agreement between Company and Affiliate, and shall supersede all prior Agreements and communications of the Parties, oral or written.

e.  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.

f.  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 an effectuated, and the remainder of this Agreement shall have full force and effect.

 

BY CLICKING THE CHECKBOX NEXT TO “I ACCEPT AND WILL FOLLOW ALL TERMS OF SERVICE” ON THE SIGN UP PAGE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN.