AFFILIATE AGREEMENT
This Affiliate Agreement (“Agreement”) is entered into and effective as of the Affiliate Sign-Up Date (“Effective Date”), by and between yourself (“Affiliate”), and HOOLEST PERFORMANCE TECHNOLOGIES, INC., a Delaware corporation (“HPT” and together with Affiliate, the “Parties”, and each, a “Party”).
WHEREAS, HPT is in the business of developing, manufacturing, and selling vagus nerve stimulation technologies (collectively, the “HPT Products”); and
WHEREAS, HPT desires to engage Affiliate to introduce to HPT potential leads for the HPT Products, and Affiliate desires to accept such engagement.
NOW, THEREFORE, in consideration of the premises set forth above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS.
1.1 “Confidential Information” means all proprietary or confidential material or information disclosed orally or in writing by HPT to Affiliate, including the terms and conditions of this Agreement, that is designated as proprietary or confidential or that reasonably should be understood to be proprietary or confidential given the nature of the information and the circumstances of the disclosure; provided, however, that Confidential Information shall not include any information or material that: (i) was or becomes generally known to the public without Affiliate’s breach of any obligation owed to HPT; (ii) was or subsequently is independently developed by Affiliate without use of or reference to Confidential Information of HPT; (iii) was or subsequently is received from a third party who obtained and disclosed such Confidential Information without breach of any obligation owed to HPT; or (iv) is required by law to be disclosed (in which case Affiliate shall give HPT reasonable prior notice of such compelled disclosure and reasonable assistance, at HPT’s expense, should HPT wish to contest the disclosure or seek a protective order).
1.2 “Net Sales” means the gross amount of monies that is actually received by HPT for the sale of HPT Products, less (a) all trade, quantity, and cash discounts actually allowed and taken; (b) credits and allowances actually granted and taken on account of rejections, returns, or billing errors; (c) shipping and freight costs; and (d) taxes, duties, tariffs, or other governmental charges imposed on the sale of the HPT Products, including value added taxes or other governmental charges otherwise measured by the amount paid for the HPT Products.
1.3 “Qualified Lead” means a lead that is not an existing customer and has not been previously known to HPT, as determined by HPT in its sole and absolute discretion, which is submitted to HPT by Affiliate in writing or within HPT’s then-current lead-tracking platform.
2. OBLIGATIONS OF THE PARTIES.
2.1 HPT Obligations.
2.1a Appointment. HPT hereby appoints Affiliate as a non-exclusive, independent referral provider for the HPT Products, subject to the terms and conditions of this Agreement.
2.1b Referrals; Payments. During the Term (defined below) and for a period of three (3) months thereafter, HPT agrees to make referral payments to Affiliate for each fully-executed order (each, an “Order”) for HPT Products made by a Qualified Lead referred by Affiliate. For each Order, HPT will pay to Affiliate an amount equal to the program commission rate of the Net Sales for that Order (the “Referral Fees”). Payment of Referral Fees will be made to Affiliate after thirty (30) days and within ninety (90) of receipt of payments of Net Sales from Qualified Leads. For Affiliate to be entitled to compensation hereunder, an Order must be executed by HPT within 6 months of Affiliate’s written submission of the corresponding Qualified Lead. All payments will be subject to the following terms and conditions:
2.1b(i) Payment Reports.
HPT will provide Affiliate with a summary report with each payment showing how the payment was calculated. Absent manifest error, any computations and reports provided by HPT related to this Agreement shall be final and conclusive.
2.1b(ii) Billing.
HPT will be responsible for all billing and collection; provided, however, that Affiliate will provide commercially reasonable assistance upon HPT’s request.
2.1b(iii) Tracking.
Affiliate and HPT will cooperate in good faith for purposes of tracking Qualified Lead referrals. Affiliate agrees to make good faith and reasonable efforts to document all of its referral activity and communicate such activities to HPT on a monthly basis, or such other times as requested by HPT, and to submit all referred Qualified Leads in writing in a form and substance acceptable to HPT.
2.2 Affiliate Obligations.
2.2a Lead Generation. Affiliate agrees to use good faith efforts to refer prospective Qualified Leads for the HPT Products to HPT.
2.2b Promotional and Service Standards; Guidelines. Affiliate will ensure that its services and activities related to this Agreement conform to applicable law, adhere to good professional and industry standards, are consistent with HPT’s marketing materials, and do not misrepresent the HPT brand in any way. Additionally, Affiliate agrees that it shall, at all times during the Term adhere to the Affiliate Guidelines, attached hereto as Exhibit A and incorporated herein by this reference, as such Affiliate Guidelines may be amended by HPT from time-to-time.
2.2c Acknowledgements. Affiliate acknowledges and agrees that: (i) the prices, terms and conditions under which HPT shall offer or sell any HPT Products shall be determined by HPT in its sole and absolute discretion; (ii) HPT shall have the authority to control all discussions and negotiations regarding any proposed or actual offering or sale of HPT; (iii) nothing in this Agreement shall obligate HPT to actually offer or sell any HPT Products or consummate any transaction with any Qualified Lead; and (iv) HPT may terminate any negotiations or discussions with a Qualified Lead at any time and has the right not to proceed with any such sale of HPT Products without any liability or obligation to pay compensation to Affiliate under this Section 2 or otherwise.
3. REPRESENTATIONS AND WARRANTIES.
Each Party represents and warrants to the other that: (i) it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder; (ii) the execution of this Agreement and the performance of its obligations hereunder does not and will not conflict with or result in a breach (including with the passage of time) of any other agreement to which it is a Party; (iii) this Agreement has been duly executed and delivered by such Party and constitutes the valid and binding agreement of such Party, enforceable against such Party in accordance with its terms (except as may be limited by public policy or creditors’ rights generally).
4. INDEMNIFICATION.
Affiliate shall indemnify, defend and hold harmless HPT and its officers, directors, employees, agents, subcontractors and affiliates (collectively, “Representatives”) from and against any loss, liability, damage or expense (including reasonable attorneys’ fees) incurred in connection with any claims, actions, demands, suits or proceedings made against HPT or its Representatives arising out of or relating to (i) a breach by Affiliate of this Agreement (including any representation or warranty contained herein); and (ii) any services of Affiliate except those in conformity with the terms and conditions of this Agreement.
5. DISCLAIMER OF WARRANTIES. HPT DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE HPT PRODUCTS, WHICH ARE PROVIDED SOLELY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN HPT AND ITS CUSTOMER, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAW, INCLUDING WITH RESPECT TO VALIDITY, NON-INTERRUPTION, ERROR-FREE OPERATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT. IN NO EVENT SHALL HPT BE LIABLE TO AFFILIATE OR ANY OTHER INDIVIDUAL OR ENTITY AFFILIATED WITH AFFILIATE FOR ANY CLAIM, LOSS OR DAMAGE ARISING OUT OF THE OPERATION OR AVAILABILITY OF THE HPT PRODUCTS.
6. LIMITATION OF LIABILITY. HPT SHALL NOT BE LIABLE TO AFFILIATE FOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER UNDER TORT, CONTRACT OR ANY OTHER THEORY, EVEN IF HPT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HPT’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED $2,500.
7. CONFIDENTIALITY.
Affiliate shall not use or disclose any Confidential Information of HPT for any purpose outside the scope of this Agreement, except with HPT’s prior written consent. Affiliate shall protect HPT’s Confidential Information in a manner similar to its own confidential information (but in no event using less than reasonable care). In the event of an actual or threatened breach of Affiliate’s confidentiality obligations, HPT shall have the right, in addition to any other remedies available to it, to seek injunctive relief, it being specifically acknowledged by Affiliate that other remedies may be inadequate.
8. TERM AND TERMINATION.
8.1 Term. This Agreement shall commence on the Effective Date and shall continue for one (1) year thereafter (the “Initial Term”), unless terminated earlier as set forth below. This Agreement shall automatically renew for subsequent one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”) on each anniversary date of the Effective Date unless either Party elects to terminate the Agreement in accordance with Section 8.2.
8.2 Termination. Without prejudice to any other right or remedy available at law or in equity in respect of any event described below, this Agreement may be terminated under the following circumstances:
8.2a Convenience.
Either Party may terminate this Agreement for convenience and without penalty at any time upon providing five (5) days prior written notice to the other Party.
8.2b Cause.
Either Party may terminate this Agreement for cause, upon five (5) days prior written notice to the other Party, if the other Party causes a material breach that is not cured within such period; provided, however, if such material breach is incapable of cure or relates to a Party’s confidentiality obligations, then the non breaching Party may terminate this Agreement immediately upon written notice to the other Party.
8.3 Effect of Termination.
Following termination or expiration of this Agreement: (i) Affiliate shall continue to maintain the confidentiality of HPT’s Confidential Information and shall, within thirty (30) days, return to HPT or destroy (at HPT’s election) all tangible embodiments of same and any equipment or other materials belonging to HPT; and (ii) HPT shall continue to make payments of applicable Referral Fees and Affiliate Referral Fees for the applicable tail periods described in Section 2.1(b); provided, however, that following expiration of the applicable tail period, HPT shall have no further obligation with regards to such payments. Sections 1, 4, 5, 6, 7, 8.3 and 9 shall survive expiration or earlier termination of this Agreement.
9 MISCELLANEOUS.
9.1 Notices.
All notices, approvals, consents, waivers and other communications under this Agreement must be in writing, sent to the addresses and/or email addresses set forth in this Section 9.1 (or to such other addresses or email addresses as a Party may designate by notice to the other Party from time to time), and will be deemed to have been given when: (a) delivered by hand; (b) received by the addressee, if sent by a nationally recognized overnight delivery service or U.S. mail; or (c) received by the addressee if sent by email.
Address:
Hoolest Performance Technologies, Inc.
Attn: Nicholas Hool, Chief Executive Officer
2398 East Camelback Road, Suite 1020
Phoenix, Arizona 85016
Email: nick@hoolestpt.com
9.2 Publicity.
The Parties shall mutually agree on the form, content and timing of any publicity or promotional communications referencing both Parties.
Dispute Resolution. The Parties shall make good faith efforts to resolve any dispute arising under this Agreement within sixty (60) days and shall refrain during that time (except for requests for injunctive relief) from initiating any litigation or other proceeding relating to such dispute.
Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing in this Agreement shall be deemed to create an employment, partnership, joint venture or agency relationship between the Parties.
9.3 Dispute Resolution. The Parties shall make good faith efforts to resolve any dispute arising under this Agreement within sixty (60) days and shall refrain during that time (except for requests for injunctive relief) from initiating any litigation or other proceeding relating to such dispute.
9.4 Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing in this Agreement shall be deemed to create an employment, partnership, joint venture or agency relationship between the Parties.
9.5 Assignment.
Neither Party may assign this Agreement, in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other Party, except to an affiliate or in connection with a merger, reorganization or sale of all or substantially all assets or equity interests; provided, however, that such affiliate or successor-in-interest shall be bound by the terms of this Agreement to the same extent as the assigning Party or predecessor.
9.6 Governing Law.
This Agreement shall be governed by the laws of the State of Arizona without reference to its conflicts or choice of laws provisions. Each Party hereby consents to the exclusive jurisdiction of the courts located in Phoenix, Arizona.
9.7 Severability.
If any of the provisions, or part thereof, of this Agreement shall be invalid or unenforceable under the laws of the applicable jurisdiction, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or part thereof, and the rights and obligations of the Parties shall be construed and enforced accordingly.
9.8 Entire Agreement; Amendment.
This Agreement, including the attachments and exhibits hereto, represents the complete agreement of the Parties and supersedes all prior discussions, communications and agreements between the Parties with respect to the subject matter hereof, and cannot be amended or modified except in a writing signed by both Parties.
By clicking the button below and agreeing to these terms, the Parties have duly executed this Agreement as of the Effective Date:
HOOLEST PERFORMANCE TECHNOLOGIES, INC., a Delaware corporation
By: Nicholas Hool, Chief Executive Officer
Address:
Hoolest Performance Technologies, Inc.
Attn: Nicholas Hool, Chief Executive Officer
2398 East Camelback Road, Suite 1020
Phoenix, Arizona 85016
Email: nick@hoolest.com
EXHIBIT A - AFFILIATE GUIDELINES
These are the Affiliate Guidelines for our Affiliate Program. The terms of this agreement are subject to change without prior notice, but we will try to notify you of such changes in advance.
1. Applying for our Program:
You are applying for our Affiliate Program right now. We reserve the right to decline or remove enrollment from our program at our discretion. As soon as your application is accepted, you can start, making introductions to other practitioners and professionals and start earning affiliate commissions if those introductions convert to purchase orders.
2. Affiliate Advertising and Paid Media Policy:
Affiliates are not allowed to run paid media such as Google Ads. Hoolest Performance Technologies is likely running them as well, and any interference with Company’s paid media endeavors will lead to termination.
Hoolest Performance Technologies, Inc. reserves the right to review and approve or reject any affiliate advertising campaigns to ensure compliance with our policies. Violation of this policy may result in termination of the affiliate relationship and forfeiture of any earned commissions.
3. Disclosures:
The Federal Trade Commission (FTC) has endorsement rules in place for affiliate marketing. They recommend that you disclose you have a business relationship with us when you promote affiliate products. You can read the full FTC rules about affiliate marketing here.
Hoolest Affiliate Relationship Specifics:
a. When and how we pay our affiliates:
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Scheduling - Commissions are paid out the first week of each month for any commission payments due at that time.
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Thresholds - The minimum payment threshold is $150 in earned commission, once you surpass that amount you will receive payment.
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Method - Affiliates are paid by PayPal.
b. The following promotional methods are NOT allowed:
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Trademarks - Affiliates are not allowed to use our logos or trademarks in their promotion efforts without expressed written consent.
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Offer Placement - Offers may not be placed on coupon sites, coupon groups, or discount sites.
c. The following promotional methods are encouraged:
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Health-Related Websites - Affiliates are encouraged to share their experiences with their audience through their relevant website, blog or business.
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Social Media - We encourage our affiliates to promote our products through their social media channels where they are sharing health and wellness information.
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In-Person - For our affiliates with in-person businesses, we highly recommend that you share the use of your own VeRelief device with your clients/customers so that they can experience the benefits firsthand.
d. Terms & conditions towards self-dealing:
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Friends and Family - You will be credited for all commissions if a relative purchases an item through your offer.
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Affiliate Using Your Own Offer - Your own purchases are eligible for an affiliate commission if you buy our products.
e. Other things that will result in disqualified purchases and becoming permanently banned:
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Negative Commentary - Affiliates are not allowed to create "scam" sites to generate traffic, or share any social media negatively about the merchant's brand.
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Offensive Content - Affiliates are forbidden from promoting Hoolest products on adult-themed websites. We are promoting overall health and well-being with our brand so it is important to stay on topic with your promotion efforts.
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False or Misleading Claims - Affiliates are strictly forbidden from publicly making any false or misleading medical claims about our products. Our products are general health and wellness devices and should be publicly presented as such.
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Banning Affiliates - If you are caught engaging in these behaviors you will immediately be permanently banned from our affiliate network.
