In order to participate in the Aptus Health, Inc., a Delaware corporation with an address of 55 Walkers Brook Drive, Suite 500, Reading, MA 01867 ("AH") eSample affiliate program (the "Program"), you must review and agree to the following, which contains the terms and conditions between AH and you (the "Agreement") regarding your application and participation as an affiliate in the Program (an "Affiliate"). As used herein, the terms "you" and "your(s)" shall refer to the corporate entity or individual owning, either directly or indirectly, the referring URL.
BY SIGNING THE TERMS AND CONDITIONS AS PART OF THIS APPLICATION, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
From time to time, AH may amend, supplement or replace entirely this Agreement by: (i) posting updated terms and conditions or supplements, amendments or exhibits thereto (collectively the "Updated Agreement") on the SampleCenter.com website; and (ii) if, in AH’s reasonable judgment, the Updated Agreement constitutes a material change, notifying each affected party via e-mail at the address then currently in AH’s records. No Updated Agreement shall affect Commissions, as defined below, earned by you prior to the Updated Agreement.
AH provides multi-channel marketing solutions to its clients, including, but not limited to, facilitating requests from eligible healthcare professionals ("HCP") for pharmaceutical samples, vouchers, coupons and related offers through AH’s proprietary and patented one-stop sample center ("Sample Center"). As part of AH’s services, such HCPs are given the opportunity to request pharmaceutical samples and patient savings offers online, directly from the HCP’s desktop and/or mobile device.
Eligible HCPs are required to register online for the Sample Center by establishing a set of login credentials for SampleCenter.com before requesting samples, vouchers, coupons, and other materials. This is a one-time registration. Returning HCPs will use their Sample Center credentials to login to SampleCenter.com. Generally, any samples, vouchers, coupons, or other materials are shipped directly to the requesting HCP’s provided business address, but in some cases, items, such as certain coupons, may be eligible to be printed directly from SampleCenter.com for distribution to the patient.
AH is seeking Affiliates to drive additional eligible HCPs to the Sample Center via a unique hyperlink provided by AH to increase new registrations by, and increase samples, vouchers, and coupons and other materials requested by, HCPs to aid in patient care. If you qualify, are approved, and agree to participate as an Affiliate, AH will make available to you, on a non-exclusive basis, a variety of graphic or textual links and other promotional materials, and a unique Affiliate tracking code, which will establish a trackable link from your website to SampleCenter.com that will serve to track activity for billing purposes, as further described below. Any hyperlink provided by AH may not be modified without express, written consent of AH, and such consent may be withheld in AH’s sole discretion.
You may apply to join the Program by completing and signing this application form. AH will evaluate your application and notify you if you are accepted into the Program. AH may reject your application for any reason, or no reason whatsoever, in its sole discretion. Websites that do not contain consumer-friendly site navigation, or that contain content (including pornographic or hateful content) that AH, in its sole discretion, determines does not meet an acceptable commercial or aesthetic standard, are not eligible for participation. Membership is limited to the specific URL(s) submitted on your application.
Your participation in the Program will commence on AH’s notification of acceptance and will continue for one (1) year, and upon such date and each anniversary thereafter, this Agreement shall automatically renew unless you provide written notice to AH no less than thirty (30) days prior to such renewal date at firstname.lastname@example.org that you wish that this Agreement not be renewed. Upon such notice, all rights and obligations specified under this contract shall be terminated on the upcoming anniversary date, and Affiliate warrants that all links and references to the eSample program shall be removed from any properties under its control and proprietary assets will be deleted from its systems by such date. Please note that AH reserves the right to terminate your participation in its sole discretion, for any reason, or for no reason at all. Immediately upon termination, you will remove any and all AH links from any website owned, or operated by you. As a precondition to receiving any earned but unpaid Commission, you will certify to AH, via e-mail, that this condition has been met within one (1) business day following termination. Post-termination activity will not be reimbursed. Your right to participate in the Program is non-transferable, except with AH’s written consent. AH may transfer its rights to the Program without restriction. Any public announcement by you regarding your participation in the Program shall require AH’s prior approval and no representations of affiliation with AH, in writing or by posting of logos, are allowed without AH’s prior consent.
AH shall be solely responsible for calculating accrued and earned commissions ("Commissions"), at the rates provided in Schedule A, which occur during the period for which such Commission is being calculated. Subject to the terms of this Agreement and as further described below: (a) for net-new HCPs referred who have not previously registered with the eSample service, AH may pay a "New User" commission; and (b) for transactions from HCPs referred by you we may pay a "Transaction" commission. Under the Program, you may earn a Commission for an HCP if the following criteria is met:
AH will maintain records of all traffic passing over the Program, and AH’s records shall govern all interpretations made under this Agreement, including but not limited to the calculation of a Commission. You agree and acknowledge that in no event shall any Commission be accrued or due with regard to any automated transactions requested by an HCP.
Commissions will be processed approximately fifteen (15) days after the end of the month in which they accrued, unless the monthly total for Commissions owed in such month is less than $1,000. If the total of Commissions owed to you for any month is less than $1,000, this amount shall be paid quarterly. Commission checks will be accompanied by a report outlining referral details. Commissions shall be paid pursuant to your current information on record with AH. You are responsible for informing AH about changes to postal and e-mail addresses, as well as any changes to your name, email address, contact information, tax identification number, or other information. We reserve the right to withhold, suspend, and/or cancel a Commission, and cancel the Affiliate relationship with you, should AH determine, at AH’s discretion, that you are not in compliance with any provision of this Agreement. You are responsible for the payment of all taxes related to the Commissions you receive under this Agreement.
Any Commission disputes must be submitted by you in writing to AH no later than forty-five (45) days after the final day of the month in which the disputed event occurred. Disputes filed after forty-five (45) days of the date on which the disputed event occurred will not be accepted by AH, and you forfeit forever any rights to a potential claim related thereto. AH reserves the right to audit any website traffic at any time and for any reason, or no reason at all. If AH determines, in the exercise of its reasonable business judgment, that you have employed any device to artificially inflate the referral rate: (a) your membership in the Program will be immediately terminated; (b) any unpaid Commissions will be immediately voided, whether or not earned; and (c) upon demand, you will return immediately to us any Commissions attributable to the Program that had been previously paid to you. In addition to the above, AH shall have all remedies available to it at law or in equity. All such available remedies are cumulative and may be exercised singularly or concurrently. All remedies are subject to the terms of this Agreement and applicable law.
If you become an Affiliate, AH will grant you a limited, non-exclusive, non-transferable, revocable, worldwide right to: (a) post on your platform the materials provided by AH, including any trademarked material, relevant to the Program; and (ii) use, in connection solely with the Program, all copyrighted, trade or service marked or other protected intellectual property contained therein for the purposes described in this Agreement. You may not add, subtract or in any way alter or edit any such material, nor may you make any use whatsoever of same other than for the purposes of, and as contemplated by, this Agreement. AH shall retain sole and exclusive ownership of all right, title and interest to and in its proprietary information, templates, processes, methodologies, inventions, patents, know-how and software owned by it, and all derivative works based upon and any improvements to any of the foregoing, and nothing in this Agreement shall grant you any rights to such property, or the use thereof, except as otherwise described in this Agreement. Immediately upon termination or upon the request of AH, you will remove any and all AH links from any website owned, or operated by you, and return to AH all of its materials, certifying in writing that you have complied with the provisions of this Section. You hereby grant AH a limited, non-exclusive, revocable, worldwide license for the term of this Agreement to use, reproduce, and distribute your company name and logo for use in AH’s promotional materials.
All data, including but not limited to Program results, user data, statistical information, traffic analysis, or any other data produced or provided by you or the HCP, shall be deemed to be the sole property of AH and shall not be used by you for any purpose. All information relating to your participation in the Program, including, but not limited to the data described above, identities of any client, AH’s Commission rates and pricing strategies, shall be considered proprietary information of AH, and shall at all times be held in strictest confidence by you and will not be disclosed by you to any other person or entity, in any manner whatsoever, in whole or in part, and will not be used by you directly or indirectly for any purpose other than the Program.
As a condition to your participation in the Program, you represent and warrant, and covenant on an ongoing basis, that: (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) there is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours; (c) you will display such links prominently in relevant pages of your platform; (d) any information with respect to AH or the Program that you display on your website must be provided by AH and/or approved by AH in writing in advance of any display; (e) your platform does not: (i) violate any applicable law or regulation governing false or deceptive advertising; (ii) does not contain any comparative advertising, trade disparagement or libelous, defamatory or infringing content, or any content that is, in AH’s opinion, unlawful, harmful, threatening, defamatory, obscene, harassing, racially, ethically, or otherwise objectionable; and (iii) does not contain any malicious code that could be unintentionally downloaded onto a user's computer or device, including, but not limited to, viruses or other self-executing computer programs; (f) each referred HCP, and each pharmaceutical request submitted by such HCP, is valid, genuine, unique and not fraudulent and meets the criteria for generating a Commission as provided in this Agreement; (g) with regard to the Program, you will fully comply with all applicable laws and regulations, including, but not limited to, the regulations provided by the Federal Trade Commission and the CAN SPAM Act; (h) you will not employ any device that has the effect of inflating the click-through rate, including, but not limited to, automatic page-spawning, automatic redirects, or "bots"; (i) you will use your commercially reasonable best efforts to continue to operate and maintain your platform in a manner consistent with the intent and purpose of this Agreement; and (j) the performance of your obligations under this Agreement shall not infringe or violate upon the intellectual property, privacy, or any other rights of any third party.
NO WARRANTIES ARE MADE BY EITHER OF YOU OR AH AS TO THE PROGRAM DESCRIBED IN THIS AGREEMENT AND EACH PARTY HERETO EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT AS IT RELATES TO THE PROGRAM PROVIDED PURSUANT TO THIS AGREEMENT.
AH shall not be liable to you for any special, consequential, incidental, punitive or indirect damages, losses (including lost or imputed profits), costs or expenses of any kind arising out of this Agreement or your participation in or termination from the Program, however caused, and whether based in contract, tort (including negligence), products liability or any other theory of liability regardless of whether you have been advised of the possibility of such damages, losses, costs or expenses. Except for liabilities resulting from willful misconduct or recklessness, any liability of AH to you shall not exceed the total amount of the Commissions actually paid to you with respect to your participation in the Program.
You hereby agree to indemnify, defend and hold harmless AH, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, demands, losses, liabilities, damages or expenses (including attorneys' fees and costs) of any nature whatsoever incurred or suffered by AH (collectively the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of, are related to, or are based on (i) the acts, failure to act, by you or any of your users; (ii) the breach of any representation or warranty made by you herein; or (iii) or any claim related to your site.
This Agreement, as it may be updated and/or amended from time to time, is the sole and complete agreement covering the subject matter hereof. Any provision of deemed unenforceable by a competent court of jurisdiction may be deleted, leaving the remainder of the Agreement operable and in effect. This Agreement is made in accordance with and governed by the laws of the Commonwealth of Massachusetts. The relationship between you and AH established by this Agreement is that of non-exclusive independent contractors. Neither party may represent and/or bind the other to a third party, or otherwise be deemed to be, an employee, agent, partner, or joint venturer with respect to the other. Any notice to be provided relating to this Agreement shall be in writing and deemed effective: (a) upon delivery when delivered in person; (b) upon transmission when delivered by verified e-mail or facsimile transmission; or (c) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally recognized overnight delivery service to the address of the respective party as indicated above. The failure of either party to insist upon or enforce strict performance or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect. Sections 6, 7, 8, 9, 10, 11, 12, 13 and 14 shall each survive the termination of this Agreement and your participation in the Program.